Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA289981. Lance A. Ito, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Ronnie Molina was convicted by a jury of premeditated attempted murder. The jury found that appellant had committed the crime for the benefit of a criminal gang, that he had one prior “strike” conviction within the meaning of the “Three Strikes” law and one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). The jury exonerated appellant of the allegations that he personally used a deadly weapon and that he personally inflicted great bodily injury. The trial court sentenced appellant to state prison for a term of life plus 35 years. This appeal is from the judgment, which we affirm, with the exception of a required correction in the abstract of judgment that provides for a sentence of 35 years to life.
Penal Code section 667, subdivision (a) provides for a five-year enhancement for such a prior felony conviction.
FACTS
At approximately 8:45 p.m. on July 3, 2005, Los Angeles County Sheriff’s Deputy Clift was supervising an exercise area located on the roof of the Los Angeles County Central Jail. Approximately 23 Hispanic gang members from the gang module of the jail were playing handball and basketball or were jogging and exercising.
Clift was in the control booth with two other deputies when he heard a lot of commotion coming from the northeast area of the roof. Four or five inmates were standing shoulder-to-shoulder, blocking Clift’s view of the source of the commotion. When Clift shifted, he saw four or five inmates circled around inmate Benjamin Acosta; they were punching Acosta in the back and head.
Acosta, screaming for help, came crashing through the “wall of inmates.” Acosta was naked and covered with blood. Appellant and four other inmates jumped on top of Acosta and stabbed him repeatedly with shanks; Acosta continued to crawl toward the sally port as his assailants continued to stab him.
Clift ordered the inmates to get down on the ground, but the assault continued. Clift sprayed the attackers with “OC” spray. Appellant and his cohorts ran through the sally port door, made for the restroom, started to splash water on themselves and attempted to flush the shanks down the toilets.
A general melee now erupted, the details of which are not material to this appeal, save for one aspect of this fight. One group of inmates separated from the rest to attack the deputies, another group continued the attack on Acosta, and yet others started to fight among themselves in order to distract the deputies; all of which reflected the planning behind the attack on Acosta. Suffice it to say that it took several deputies and the use of stingball grenades, which detonate in the air and fire rubber pellets the size of ball bearings, to bring appellant and the other inmates under control.
Acosta survived the attacks with wounds to his head, shoulders, arm, and back; he had been stabbed 28 times. Many of the wounds were superficial.
Shanks were recovered from the toilet; they were metal, sharpened at one end and about four inches long.
Appellant testified in his own defense that he was playing basketball when Clift came running, telling the inmates to get down. According to appellant, Clift started spraying the men, and they in turn tried to stop him from spraying. Appellant conceded that he saw Acosta on the roof but denied that Acosta was involved with any of the fighting. Appellant denied that he was a “shot caller” but admitted that he has been a member of the Pacoima Trece gang since 1995. Appellant admitted that he has been convicted of three violent felonies in 1997, 2005, and 2006.
We explain below, at pages 4 through 5, what a “shot caller” is.
In the record, that gang is also called the “Pacas Trece” gang.
We defer the discussion of gang evidence, which was extensive, to our analysis of appellant’s contention that this evidence should not have been admitted.
Appellant and eight other individuals were charged with Acosta’s attempted murder. Four of these individuals (J.L. Guzman, F. Real, M. Munoz, and O. Sanchez) were ultimately tried together with appellant.
DISCUSSION
1. Substantial Evidence Linked Appellant to the Mexican Mafia
Appellant points to the fact that the prosecution presented substantial evidence about the Mexican Mafia that appellant characterizes as probably the most violent and notorious prison gang in California. Appellant contends that the prosecution “chose to do so despite having no admissible evidence whatsoever to link any of the defendants to the Mexican Mafia.”
At trial, the defense moved to exclude gang evidence. The court held an Evidence Code section 402 (section 402) hearing in which the prosecutor stated that the theory of the case was that the perpetrators of the attempted murder acted on behalf of the Mexican Mafia, which controls inmate behavior in jails and prisons. After hearing testimony, which is not necessary to set forth at this point, the trial court denied the defense motion but stated that expert testimony on gangs had to have a factual basis, citing People v. Gardeley (1996) 14 Cal.4th 605.
Appellant’s connection to the Mexican Mafia was established at trial both in institutional terms and by facts that show appellant’s role as an executant of the Mexican Mafia’s wishes when it came to the attempted murder of Acosta.
Institutionally, there are two links between appellant and the Mexican Mafia. He is a member of a gang that assists the Mexican Mafia, and he occupied at the time in question a post or office that exists to execute Mexican Mafia directives.
Appellant is concededly a member of the Pacas Trece gang. According to a prosecution expert, the Pacas Trece gang has the same relationship with the Mexican Mafia that other Hispanic gangs have, i.e., appellant’s gang assists the Mexican Mafia in its criminal activities.
Appellant was a “shot caller,” which is a particularly nefarious office. A shot caller is considered a king in the Southern California gang community. In jail or prison, the shot caller informs inmates of the rules they must follow, among which is not to be a snitch. If an inmate violates the rules, the shot caller determines the kind of punishment that is meted out. The shot caller maintains a “green-light list,” which contains names of inmates in bad standing with the Mexican Mafia who are to be assaulted on sight; the shot caller removes or adds names to the green list. While the shot caller is not a member of the Mexican Mafia, his status as a shot caller ensures that he has the protection of the Mexican Mafia.
That appellant was a shot caller rests in part on his own testimony and his conduct in jail. Appellant told one of the deputies (Lawler), who testified as a gang expert, that appellant was in charge of the gang module in the jail. Appellant actually helped Lawler to maintain control over other inmates on prior occasions and there was testimony that appellant in fact controlled the behavior of inmates. Lawler concluded that appellant was the shot caller in the gang module. Significantly, appellant was the only shot caller on the premises when Acosta was attacked.
With specific reference to Acosta, during the section 402 hearing, Clift testified that Acosta was attacked because he violated the Mexican Mafia’s order when he refused to hire an attorney for his codefendant in a criminal prosecution brought against Acosta and the codefendant. As we discuss in part 4, post, there was a problem with this testimony in that Clift could not identify a reliable source for this information. In the end, the trial court ruled that Clift would only be allowed to testify that the attack bore the hallmarks of prison gang activity.
The record amply supports the conclusion that the attack on Acosta was ordered by the Mexican Mafia. During the trial, Deputy Clift explained in detail why the orchestration of the attack on Acosta and the deputies, and the actual attack on Acosta, reflected that it was directed by the Mexican Mafia for the benefit of that organization. The savagery of the attack on Acosta, in the plain sight of the deputies, reflected that the Mexican Mafia’s directive had to be carried out at all costs. The fact that the inmates divided in attacking the deputies in order to distract them while other inmates attempted to murder Acosta, also showed advance planning typical of Mexican Mafia tactics. Another witness, special agent Evanilla, testified that the inmates with orders to kill Acosta understood that they had to accomplish that objective without regard for themselves. Evanilla testified that the attack with shanks reflects a Mexican Mafia operation, since shanks are the means by which the Mexican Mafia expects its directives to be carried out.
The foregoing evidence, which is not the totality of the evidence on this issue, convincingly demonstrates that appellant had a strong link with the Mexican Mafia both institutionally, as a shot caller, and specifically, when it came to ordering the assault on Acosta. Although the jury did not find that appellant personally inflicted great bodily injury, Clift testified that he saw appellant and four others repeatedly stab Acosta with shanks, and he saw appellant run to a sink on the roof in order to wash off the blood and chemical spray. Substantial evidence supports the conclusion that appellant was involved both in the planning and the execution of the attack.
2. Substantial Evidence Supports the Conclusion That the Attack Bore the Hallmarks of Prison Gang Activity
Appellant contends that Clift’s and Evanilla’s testimony that the attack on Acosta bore the hallmarks of prison gang activity was “nothing but unsupported speculation.”
The record does not support appellant’s contention. The orchestration of the attacks on the deputies while other inmates pursued the attack on Acosta, standing alone, bespeaks of planning and coordination, i.e., gang activity. The fact that the attack on Acosta was made in plain sight of the deputies and with complete disregard for the consequences to the attackers is also a feature of a gang-ordered “hit” in that the attackers knew they had to succeed or face the consequences. The further fact that the attackers used shanks is another indication of a gang-ordered assault. In sum, there are facts that indicate, even to the nonexpert, that the assault on Acosta bore the hallmarks of prison gang activity.
3. There Is Substantial Evidence That the Mexican Mafia’s Primary Activities Are Criminal and That the Attack on Acosta Was for the Benefit of the Mexican Mafia
Relying in large part on In re Alexander L. (2007) 149 Cal.App.4th 605, appellant contends that there is no substantial evidence that (1) the primary activities of the Mexican Mafia are criminal, and (2) the attack was for the benefit of the Mexican Mafia.
The bulk of the evidence about the nature of the Mexican Mafia’s activities came from Sheriff’s Deputy Gallegos who testified that the Mexican Mafia engages in money laundering, murder for hire, extortion, and narcotics trafficking. The bases of Gallegos’s opinion were: (1) four years of service in the gang enforcement detail of the Los Angeles Police Department’s Foothill Division; (2) academic training in gangs and gang activity, including specifically Hispanic gangs; (3) training conducted by the Los Angeles County’s District Attorney’s Office and the California Department of Corrections; (4) interviews conducted with individuals, including gang members belonging to four gangs, including appellant’s Pacas Trece gang, monitored by the Foothill Division.
In In re Alexander L., supra, 149 Cal.App.4th 605, Sheriff’s Deputy Lang opined that the graffiti that the defendant in that case had sprayed might intimidate rival gangs and therefore the graffiti benefited the defendant’s gang. “When asked about the primary activities of the gang, he [Lang] replied: ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities on direct or redirect examination. [¶] Lang’s entire testimony on this point is quoted above—he ‘kn[e]w’ that the gang had been involved in certain crimes.” (Id. at p. 611.)
The difference between Gallegos’s and Lang’s testimony is quite apparent. While there was no foundation for Lang’s testimony, it is difficult to imagine what further foundation Gallegos might have given for his conclusions. Gallegos’s opinions were the product of both practical and academic training, hands-on police experience of several years duration with gangs and interviews with gang members and other members of the public. In short, Gallegos was eminently qualified to give the opinions that he did give. Appellant’s claim that “Gallegos also did not indicate the source of that information [criminal activities by the Mexican Mafia], if any” is simply mistaken in that it ignores Gallegos’s qualifications that are reflected in the record.
4. Clift Did Not Fail To Preserve Exculpatory Evidence
At trial, appellant moved to dismiss the attempted murder count on the ground that Clift did not preserve and make available to the defense statements by various inmates who told Clift that Acosta was only supposed to be hurt. The motion was based on California v. Trombetta (1984) 467 U.S. 479 and Brady v. Maryland (1963) 373 U.S. 83 (hereafter Trombetta and Brady.) The trial court conducted a section 402 hearing on the matter, requested briefing and ultimately denied the motion for reasons that we find to be correct.
At the section 402 hearing, Clift testified that, after the attack on Acosta, he spoke to 100 to 150 inmates at the jail about whether they knew anything about the reasons why Acosta was attacked. He was given widely different explanations. Some said that Acosta had falsely bragged that he was a member of the Mexican Mafia, which upset the Mafia. Others stated that it was because Acosta refused to pay for his codefendant’s lawyer. Yet another rumor was that Acosta was being “taxed,” that he wouldn’t pay, and that this was the reason for the attack.
The common denominator of all these statements was that when Clift asked where the person had obtained his particular version, the answer would always be that the speaker had heard it from someone whom the speaker would or could not identify. As Clift put it, the speaker would respond to Clift’s request to disclose the source of his information as “ ‘[w]ell, I don’t know. I just heard this.’ ” Clift concluded that all he was hearing was a “bunch of rumors.” Clift testified that it was possible that the inmates actually knew their sources but were refusing to cooperate, and it was equally possible that they didn’t know the sources; Clift simply could not say which was true.
Given this background, the trial court’s conclusion that all that Clift had heard was multiple hearsay, i.e., unsubstantiated rumors, is undoubtedly correct. As the trial court noted, while an expert may rely on hearsay in forming an opinion, the inmates imparting their versions to Clift were neither experts nor were they reliable. In fact, one may say that they were anything but reliable.
The inutility of these rumors becomes apparent at once if one considers whether Clift would have been allowed to state the substance of these rumors in his testimony. He would very clearly have been barred from so testifying since all of these statements were inadmissible hearsay. Trombetta and Brady apply to evidence; it cannot be said that the rumors Clift heard were admissible evidence. Since Clift was unable to name a single inmate who had provided at least some basis for his particular version of the rumors about this attack, this was simply a dead end.
We note in passing that, in light of Acosta’s treatment, it is certainly not surprising that not a single inmate was willing to provide names.
In light of these conclusions, it is not necessary for us to consider whether there was anything exculpatory in the inmates’ statements to Clift. We note the trial court’s view that there was nothing exculpatory in the rumors Clift heard, a view with which we would be inclined to agree.
5. It Was Not Error To Decline To Instruct the Jury That the Prosecution Failed To Preserve Evidence
At trial, appellant requested the following special instruction: “ [‘]The destruction or failure to collect evidence supports an inference adverse to the prosecution which is sufficient to raise a reasonable doubt of the defendant’s guilt.’ ” The “evidence” that the prosecution was supposed to have collected and preserved was appellant’s clothing, which allegedly was free of any blood stains; the argument is that since Acosta bled profusely, if appellant participated in the attack, his clothing would have been blood-stained. Along the same lines, appellant contends that his hands should have been examined (there was nothing to indicate that that had been done) since the attack with shanks would have damaged his hands.
While the trial court noted that in the best of all possible worlds, the deputies should have collected clothing, including appellant’s, worn during the attack, there was nothing to indicate a “malfeasance or misfeasance or nonfeasance” and the court would therefore not give the requested instruction. The trial court went on to state that this did not prevent the defense from arguing the matter to the jury. As it turned out, the defense did argue to the jury that the prosecution had failed to preserve clothing worn during the attack, and that this “goes to” reasonable doubt and the presumption of innocence.
Appellant’s contention does not amount to a claim that the prosecution failed to disclose exculpatory evidence or that the prosecution suppressed evidence. Appellant’s claim is that the prosecution failed to preserve potentially useful evidence, for there is nothing to show that the clothing was not blood-spattered, or that appellant could not have participated in the assault without getting Acosta’s blood on his clothes. “Law enforcement agencies must preserve evidence only if it possesses exculpatory value ‘apparent before [it] was destroyed,’ and not obtainable ‘by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant challenges the failure to preserve evidence ‘of which no more can be said than that it could have been subjected to tests’ that might have helped the defense. [Citation.] In such a case, unless the defendant can show ‘bad faith’ by the police, failure to preserve ‘potentially useful evidence’ does not violate his due process rights.” (People v. DePriest (2007) 42 Cal.4th 1, 41-42.)
As the trial court found, appellant cannot show that the prosecution exhibited or was motivated by bad faith in not preserving his clothing and not examining his hands. It is also true that appellant could have been convicted of attempted murder if his clothing showed no signs of blood. The jury was instructed on aiding and abetting, which does not require that the accused be present at the scene of the crime. In fact, a question asked by the jury during its deliberations suggests that appellant was convicted on the strength of this instruction. That appellant was an aider or abettor also conforms to the jury’s findings that appellant did not personally use a deadly weapon and did not personally inflict great bodily harm. This view of the evidence fits with appellant’s role as a shot caller. In sum, appellant was not entitled to this instruction because there was no evidence of bad faith. But even if he was entitled to the instruction, the failure to give the instruction was not prejudicial because appellant’s conviction did not involve the state of his clothing or his hands.
The question was: “Clarification of whether it would be [a]ttempted [m]urder if Molina organized and ordered the [a]ttack but never took a punch or stab.” The record does not reflect the answer that was given.
6. The Abstract of Judgment Must Be Corrected
The abstract of judgment states that appellant was sentenced to life with the possibility of parole for the attempted murder, plus 35 years. The 35 years purports to be predicated on the gang enhancement (30 years) and the prior felony conviction (five years). During the sentencing hearing, the trial court imposed an additional 10 years for the gang enhancement, but stayed that sentence.
The parties agree that neither the sentence imposed orally nor that reflected in the abstract of judgment are correct. The parties agree that the effect of the gang enhancement is that set forth in Penal Code section 186.22, subdivision (b)(5), which is that appellant is not eligible for parole for a minimum of 15 years; the parties also agree that, in light of the prior felony conviction, the 15-year period is doubled under Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), which means that appellant is not eligible for parole for 30 years. An additional five years is added for the prior felony conviction.
Accordingly, the abstract of judgment should be corrected to state that appellant is sentenced to a life term with the possibility of parole, but that he must serve a minimum of 35 years before he becomes eligible for parole, i.e., a sentence of 35 years to life in prison. The oral imposition of a 10-year sentence for the gang enhancement must be vacated.
DISPOSITION
The case is remanded with directions to correct the abstract of judgment to reflect a sentence of 35 years to life and to vacate the 10-year sentence on the gang enhancement, as set forth in part 6, ante. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., EGERTON, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.