Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA358153 Kathleen Kennedy, Judge.
ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Kathleen Kennedy, Judge. The petition is denied.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Jonathan Lopez was convicted, following a jury trial, of the second degree murder of Jose Ramos in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant personally used a gun within the meaning of section 12022.53, subdivisions (b), (c) and (d) and the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22. The trial court sentenced appellant to a term of 15 years to life in state prison for the murder, plus a 25 year to life enhancement term for the gun use.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the true finding on the gang allegation and further contending that he received ineffective assistance of counsel on two occasions during trial. Appellant has also filed a petition for writ of habeas corpus, which we have considered concurrently with the appeal. We affirm the judgment of conviction and deny the petition.
Facts
Jose Ramos and Raul Marquez spent the day of December 30, 2008 drinking beer. In the evening, after consuming about 10 beers each, the men drove to 124 East 54th Street to buy marijuana. They had been to the house before. The house was in the heart of the territory claimed by the 55 Bunch gang, and was the second most popular hang-out for members of the gang.
When Ramos and Marquez arrived at the house, there were four people outside. Two of them left, leaving appellant and Gilbert Salinas. Salinas was an admitted 55 Bunch gang member. Evidence was admitted at trial showing that appellant was also a member of the 55 Bunch gang. Ramos and Marquez were not members of any gang.
Ramos tried to joke with appellant and Salinas, asking why one of the men who had just left was not made a member. Appellant did not view Ramos's remarks as humorous. An argument ensued. Ramos punched Salinas, who then ran away. Ramos hit appellant three or four times. Appellant ran to the side of the house and returned with a gun. He fired several shots at Ramos, then ran away.
Two of the gunshots fired by appellant were fatal. One of the fatal shots was to the back of Ramos's head, the other through his back to his heart. The two non-fatal shots were to his lower abdomen, from the front. The non-fatal shots were fired after the fatal shots.
According to Salinas, appellant threw the gun toward the back of the house as they ran away. Salinas and appellant waited in an apartment stairwell until Salinas's mother picked them up. Appellant appeared nervous and upset.
At trial, Los Angeles Police Department Officer Ronald Berdin opined that appellant was a member of the 55 Bunch gang and had committed the crime for the benefit of that gang. Officer Berdin explained that the 55 Bunch gang's primary activities are felony vandalism, felony weapons possession, grand theft auto, robbery, assault with a deadly weapon, attempted murder and murder. The gang is loyal to the Mexican Mafia. The corner of 54th and Main is the gang's "hub" or "stronghold, " and gang members regularly gather there. The house at 124 East 54th Street is a short distance away. The gang and its territory are both small.
Officer Berdin based his opinion that appellant was a 55 Bunch gang member on his investigation of the case and preliminary hearing testimony in this case. At that hearing, Salinas admitted that he was a member of the 55 Bunch gang. Salinas testified that appellant had been a member of 55 Bunch, but had stopped "banging" about three months before he shot Ramos. Soto, a witness to the shooting, also testified at the preliminary hearing. She was friends with appellant and testified that he was a member of 55 Bunch. Further, when appellant was arrested three weeks after Ramos's murder, he was at the house on 54th Street with Salinas, which reinforced Officer Berdin's opinion that appellant was a member of 55 Bunch.
Officer Berdin based his opinion that appellant committed the crime to benefit the 55 Bunch gang on the importance of respect in gang culture. When Ramos teased and hit appellant and Salinas in the heart of 55 Bunch territory, he was showing disrespect. When appellant reacted violently to the disrespect, he sent a message to rival gangs and to people in the neighborhood that they needed to fear the gang if they were in the gang's territory. This helped the criminal aspect of the gang to continue. Officer Berdin's opinion was reinforced by Soto's testimony that she feared retaliation from 55 Bunch if she testified against them in this matter.
Appellant testified in his own behalf. At the time of the shooting, he was 15 years old and lived with his parents about a block away from 124 East 54th Street. About a month before the shooting, he was walking in the alley near 124 East 54th Street when he noticed a house under construction and decided to check it out. He picked up a paint bucket to stand on, and found a gun inside. He had never seen a gun before and he was surprised and excited. Appellant hid the gun in the crawl space of the house off the alley. He did not turn the gun in because the police were "assholes" and did not respect him. He did not give the gun to his father because he was afraid he would get into trouble.
Appellant was aware of the 55 Bunch gang from living in the neighborhood. He denied that he was a member of the gang. He acknowledged that his brother was a gang member. Appellant acknowledged that 55 Bunch gang members hung out around 54th and Main, but claimed that many non-gang members also hung out there.
On the day of the shooting, appellant and his brother smoked marijuana and drank beer all day. About 7:00 or 8:00 p.m., appellant and his brother went to 124 East 54th, where they drank tequila and smoked marijuana. Ramos and Marquez arrived about 9:00 p.m. The only 55 Bunch gang member present at that time was Salinas. Ramos and Marquez wanted to buy methamphetamine, and one of the people at the house knew where it could be obtained. They began to make a deal.
Ramos and Marquez were being "disrespectful" by flashing lighters in people's faces and asking, "Who's this?" Appellant remained seated while this was going on. People left. Ramos walked up to appellant, grabbed his cheeks and pinched them. He also shook appellant's head with both hands. Ramos was laughing. Ramos looked like he could have been from another gang. Appellant asked Ramos why he was touching him. Appellant tried to move away from Ramos toward the driveway, but Ramos continued to grab him. Appellant started to walk away, but Ramos hit him in the jaw. Appellant dropped to his knees and put his hands up to protect his face. Ramos kept hitting him. Appellant begged Ramos to stop, but he did not. Appellant rolled up into a ball. Appellant was angry, upset, mad, surprised and crying. He was able to get away and ran to the side of the house. It felt like Ramos was chasing him.
Appellant remembered the hidden gun, retrieved it from the crawlspace and fired it at Ramos without thinking. Appellant then realized what he was doing, stopped and ran away. Appellant denied walking up to Ramos, shooting him, waiting to see if he was dead and then firing more shots.
Appellant ran home, dropping the gun in the alley as he ran. Later, he retrieved the gun and gave it to someone who said he would get rid of it. Appellant did not dispose of the gun with Salinas. He did not remember hiding in a stairwell with Salinas. Appellant also denied being friends with Salinas. He saw Salinas around the neighborhood and talked with him from time to time.
Appellant denied returning to the house since the shooting. He was going to the store when he was arrested, and just happened to be walking by the house when the police detained him.
Appellant acknowledged that he lied to the police when he was arrested, even when he denied knowing what the police were talking about. He also lied when he told the police that Ramos tried to take his money. Appellant denied that he shot Ramos to impress anyone. He was scared and shocked at the shooting.
Appellant also denied writing "55 Bunch" on the wall of the court holding cell.
In rebuttal, Los Angeles County Sheriff's Department Deputy Sean Phaneuf testified about appellant's activity in the holding cell. On the second day of trial, Deputy Phaneuf went into the holding cell to give appellant a new shirt for his next court appearance. He noticed that "55 Bunch" was written in pencil on the wall. It had not been there that morning. The only other person using the cell was a 70-year-old man awaiting sentencing on a tax fraud case. Deputy Phaneuf confronted appellant about the graffiti, and appellant denied writing it. The deputy went to get appellant's attorney, and when they returned, appellant had spit on his hand and was wiping at the graffiti.
Discussion
1. Sufficiency of the evidence – gang allegation
Appellant contends that there is insufficient evidence to support the gang allegation. Specifically, he contends that there is insufficient evidence to show that he is a gang member and that he intended to benefit the gang.
Section 186.22, subdivision (b)(1), provides additional punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted."
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]'" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Here, appellant acknowledges that Officer Berdin opined at trial that appellant was a member of 55 Bunch, but contends that that opinion is "unconvincing" because Officer Berdin had been monitoring the gang for over 10 years and had never spoken with appellant, and because appellant was not a documented member of the gang, did not have gang tattoos, had never admitted that he was a gang member, had never been identified by others as a gang member and did not have a police record of gang activity.
Officer Berdin relied on the preliminary hearing testimony of admitted gang member Gilbert Salinas. Salinas testified that appellant had been a gang member, but had stopped "banging" about three months before the crimes in this case occurred. Given the circumstances of the crime, Officer Berdin could reasonably have discounted Salinas's claim that appellant was no longer banging. On the day of the murder, appellant was at the gang's hang-out with another gang member, and appellant's altercation with the victim was precipitated by the victim's teasing comments about the gang. When appellant was arrested weeks later, he was at the gang hang-out in the company of Salinas.
Further, Officer Berdin relied on the preliminary hearing testimony of Selena Garcia, a recent acquaintance of appellant's. Garcia testified that appellant and Salinas were gang members. In addition, there was evidence that appellant wrote 55 Bunch graffiti on the wall while in jail. This is sufficient evidence that appellant was an active gang member at the time of the crime. In any event, "section 186.22 does not require that the defendant be an active or current member of the criminal street gang that benefits from his crime. [Citation.]" (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; see People v. Albillar (2010) 51 Cal.4th 47, 67-68 [section 186.22 enhancement "does not depend on membership in a gang at all"].)
Appellant also contends that there is insufficient evidence that the crime was committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) Appellant is correct that there is no evidence of direction, or association, since Salinas fled as soon as he was hit by Ramos. We see sufficient evidence that the crime was committed for the benefit of a criminal street gang, however.
"There is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, 'we routinely draw inferences about intent from the predictable results of action. We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say.' [Citation.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 411-412.)
Here, the evidence clearly showed that appellant viewed Ramos's comments about the 55 Bunch gang as disrespectful, and responded by getting into an argument with Ramos about the comments. At this point, appellant was clearly acting to benefit the gang, that is, to defend its reputation. Ramos's blows were also a form of disrespect, both to the gang and to appellant. Appellant responded to those blows with disproportionate violence, and it is more than reasonable to infer that he did so because he intended to avenge the disrespect to the gang and promote the gang's reputation.
To the extent that appellant contends that only current and active gang members would commit a crime to benefit a criminal street gang rather than themselves individually, we do not agree. An individual may commit a crime to benefit a gang because he aspires to join the gang, feels loyalty to the gang based on past membership or is involved in criminal activities with the gang and wants to see it prosper.
The gang expert, Officer Berdin, explained how appellant's crime could in fact benefit the gang and promote the criminal activity of its members. He explained that within gang culture, respect is everything. The reaction to perceived disrespect is often violence. Gang members believe violence will gain the respect of the victims, witnesses and others in the community who learn about the violence. Officer Berdin explained that in gang culture, when the gang is disrespected, "a message needs to be sent that members of this particular gang are not going to be disrespected in this way, and it sends a message, as I stated earlier, not only to the individuals within the immediate area, but word travels fast on the street. Rival gang members understand that individuals at this particular location are armed; that they need to fear it within this particular area if they decide to travel on this street." As a result, "the criminal aspect of their organization can continue." As Officer Berdin pointed out, the effectiveness of the gang's violence in facilitating its criminal activities could be seen in this case, where Soto was afraid to testify against the gang. This is sufficient evidence to support an inference that appellant committed his crime to benefit the 55 Bunch gang.
Appellant's reliance on People v. Ochoa (2009) 179 Cal.App.4th 650, People v. Albarran (2007) 149 Cal.App.4th 214, and In re Daniel C. (2011) 195 Cal.App.4th 1350 is misplaced. In all three cases, there was a complete lack of evidence that the crimes took place in the gang's territory or that defendants in any way made it known that they were gang members. That is not the case here. Ramos knew that he was in gang territory and that appellant and Salinas were gang members. The killing was precipitated by a perceived insult to the gang. Ramos's companion and at least one witness also knew that appellant and Salinas were gang members.
In Ochoa, the crime was not committed in gang territory and the victim was completely unaware that he was being robbed by a gang member. In Albarran, the crimes took place at a private party, the shooters did not announce their gang affiliation or purpose before, during or after the crimes, and there was no evidence that gang members later took credit for the crime on behalf of the gang. In Daniel C., the juvenile court found that the evidence showed that the defendant was not a gang member and his only intent was to shoplift a bottle of whiskey, which he did while in the company of the three men who were gang members. The only evidence of gang affiliation was a red hat worn by the defendant.
2. Ineffective assistance of counsel – motion to bifurcate
Appellant contends that his trial counsel was ineffective in failing to move to bifurcate the gang allegations. He points out that during the discussion of jury instructions the trial court stated that it would have granted a motion to bifurcate the gang allegation.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
The trial court's comment, taken in context, is best understood as part of an attempt to convince the People to offer a plea deal to appellant, based on appellant's young age and lack of a criminal record. It was made at the close of the People's case, when the trial court had a complete picture of the People's evidence. It is far from clear that the trial court would in fact have granted a pre-trial motion to bifurcate the gang allegations.
Assuming for the sake of argument that the trial court would have granted a pre-trial motion to bifurcate the gang allegations, we see no reasonable probability of a more favorable outcome for appellant if the gang allegation had been bifurcated. When the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice from the evidence would be dispelled. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.) That was the case here. Much of the evidence would have been relevant to the substantive charges and admissible even in the absence of the gang allegation. The shooting arose out of an argument about disrespect to the 55 Bunch gang, and thus showed motive. Appellant's gang ties were also relevant to show his intent in shooting at Ramos.
3. Ineffective assistance of counsel – prosecutor's closing argument
The jury in this case was instructed on both murder and manslaughter. Appellant contends that his trial counsel's failure to object to portions of the prosecutor's closing argument concerning manslaughter constituted ineffective assistance of counsel. Specifically, appellant contends that the prosecutor conflated the standard for justifiable homicide in defense of another with voluntary manslaughter and also conflated the subjective and objective elements of voluntary manslaughter. He contends that in the absence of the prosecutor's incorrect legal arguments, he would have been convicted of voluntary manslaughter rather than second degree murder.
As we discuss in more detail below, we agree with appellant that the prosecutor's remarks are very similar to remarks found to be incorrect statements of law by the Fourth District Court of Appeal in People v. Najera (2006) 138 Cal.App.4th 212. We do not find that counsel's failure to object requires reversal of the judgment.
Appellant contends that the prosecutor misstated the level of provocation needed for voluntary manslaughter. The prosecutor gave as a "typical or... classic type" of voluntary manslaughter the example of a parent walking in on a child molester raping his child. She said: "You are so upset; any reasonable person, the ordinary, reasonable person would become so enraged, would feel so provoked, there would be such heat of passion, sudden quarrel, that you as a parent or a parent takes a gun and kills the child molester."
The prosecutor in Najera used the same example. As the Court of Appeal explained, a parent who walks in on someone molesting his child and kills the molester has committed a justifiable homicide under section 197, not voluntary manslaughter. (People v. Najera, supra, 138 Cal.App.4th at pp. 221-222.) Thus, this example overstates the level of provocation required for voluntary manslaughter. (Ibid.)
Subdivision (3) of section 197 provides that homicide is justifiable when committed in the defense of a child "when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished."
Appellant also contends that the prosecutor argued incorrectly that appellant's conduct was relevant to determining whether there was adequate provocation. Appellant points to the following remarks by the prosecutor:
As appellant recognizes, a defendant's conduct may well have some bearing on his subjective state of mind, that is, whether he was actually provoked by the victim's conduct.
"Let's say [the victim] punches an ordinarily reasonable person. That ordinarily reasonable person might be mad and might be offended and might be scared. What would that ordinarily reasonable person do in response? He might run away. He might call the police. He might fight back. He might punch him. He might swear at him. He might do a lot of things. [¶] But that ordinarily reasonable person is not going to run away from him around the corner of the house where he keeps his gun, go into the crawl space, take it out, come back and shoot him twice in the head, see him drop and shoot him twice in the torso. [¶] That is not a reasonable person's actions."
"So this whole thing is him being provoked. Is this the kind of incident where we are saying as a society that yeah, an ordinarily reasonable person would react the same way? We would go get our guns and shoot and blow a hole through his brain?"
"You can decide what it is. You decide what degree of murder it is. [¶] But really? For counsel to get up here and say that this is not murder? To say that it is okay; that the victim punched him a few times; that's bad. But that does not make it okay for anybody, anybody, to go and get a gun and blow a hole through someone's brain because they punched you. That's not okay in our society. That's murder. [¶] We are not going to go ahead and say, 'Let's reduce that and let's call it something else.' Because you know what? Everybody would act like that. [¶] This isn't the Wild West. [¶] We are living in a society with laws. And reasonable people don't act like that. We reserve voluntary manslaughter for those crimes that are so upsetting, so emotional, so upsetting that any one of us would act the same way. The ordinarily reasonable person. Not the defendant."
In Najera, the prosecutor made a similar although more direct argument, saying "'[T]he reasonable, prudent person standard... [is] based on conduct, what a reasonable person would do in similar circumstance. Pull out a knife and stab him? I hope that's not a reasonable person standard.'" (People v. Najera, supra, 138 Cal.App.4th at p. 223.) The Court of Appeal explained that this argument was incorrect because under the law, "[t]he focus is on the provocation-the surrounding circumstances-and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Ibid.)
Appellant contends that his trial counsel was ineffective in failing to object to these incorrect statements of the law.
Our Supreme Court has repeatedly pointed out that "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 442; People v. Frierson (1991) 53 Cal.3d 730, 747.) Further, "[w]hen a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for the counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
It may have been sound trial strategy for appellant's counsel to object to the prosecutor's argument, but that was not the only sound strategy available to him. Appellant's counsel's decision to not object but to wait to address the prosecutor's arguments during his own argument was equally sound. A point emphasized in closing argument may be more persuasive in a particular case than an objection and admonishment. The choice between such sound strategies is particularly in the province of trial counsel and not this court.
Here, appellant's counsel responded to the prosecutor's incorrect argument in the defense's closing argument. Among other remarks, counsel stated: "Manslaughter is not the textbook case that [the prosecutor] is saying; it almost – implies almost, 'Gee, it would have to be something really reasonable, like you come into your house and your child is being molested, and then you lose it.' [¶] Well, that's something I guess that everybody that has a child can understand. [¶] But also, depending on how hard it is and depending on how much you get beat up, it is also a provocation to get beat up, because the instructions are talking about a sudden quarrel in the heat of passion, a sudden quarrel or conflict."
Further, we see no prejudice to appellant from the prosecutor's argument. Juries are aware that statements by the prosecutor are merely argument and are the statements of an advocate. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, citing Boyde v. California (1990) 494 U.S. 370.) More importantly, the trial court instructed the jury that if the arguments of counsel conflicted with the court's instructions, the jury must follow the instructions. We presume that the jury followed these instructions. (People v. Najera, supra, 138 Cal.App.4th at p. 224.)
In addition, the strength of the evidence can eliminate any prejudice from extraneous remarks. (See People v. Hines (1997) 15 Cal.4th 997, 1036-1038.) Here, the evidence was very strong that appellant was not acting under the influence of a sudden quarrel or heat of passion at the time he shot Ramos. According to appellant, he managed to slip away from Ramos and run to the side of the house. There, he remembered that he had hidden a gun in a crawlspace a month earlier, retrieved the gun from the crawlspace where he had hidden it a month earlier and returned to the front of the house and shot Ramos. These actions are not consistent with a person whose "reason... was obscured or disturbed" and who was acting "rashly and without deliberation and reflection, and from passion rather than from judgment." (CALJIC No. 8.42.)
4. Petition for writ of habeas corpus
In his petition, Lopez repeats the claims of ineffective assistance of counsel he makes on appeal. As we discuss, ante, petitioner has failed to show prejudice. Accordingly, his petition is denied.
Disposition
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: MOSK, J.KRIEGLER, J.