Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. TA084751 Paul A. Bacigalupo, Judge
James H. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ricardo Montemayor appeals a judgment following his conviction of first degree murder (Pen. Code, §§ 187, subd. (a), 189) (count 1), and shooting at an occupied motor vehicle (§ 246) (count 6.) The jury found that Montemayor personally used a handgun which he intentionally discharged causing the death of the victim and that he committed these offenses for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c) & (d).) During the sentencing hearing, the trial court stated, "[t]he aggregate sentence on count 1 is 50 years to life." We conclude, among other things, that: 1) substantial evidence supports Montemayor's conviction for shooting at an occupied motor vehicle, 2) the court properly instructed the jury on the elements of that offense, 3) it did not err by allowing the gang expert to testify about the gang motive for the crime or by admitting evidence about Montemayor's tattoos, but 4) the court imposed inconsistent sentences on count 6. We remand for resentencing. In all other respects, we affirm.
All statutory references are to the Penal Code.
FACTS
On May 13, 2006, Carlos Ramos was driving his Ford Mustang. His wife, Julia Saavedra, and his mother were passengers in that vehicle.
Montemayor was standing on the sidewalk. He saw Ramos's car pass by and he "blew a kiss" to Saavedra. Saavedra knew Montemayor and knew that he was a member of the "Locos Trece" gang.
Ramos asked Saavedra, "Did he just blow a kiss?" Ramos made a U-turn and drove back to the area where Montemayor and his "associate, " Jorge Nunez, were standing. Ramos drove slowly by them, and then "mad-dogged" them. Saavedra testified that mad-dogging means he stared at them in a "bad" way. Ramos then drove to an intersection, stopped and waited for the light to turn green.
Montemayor followed Ramos in a blue SUV. He got out of the SUV, walked over to Ramos's car, and pulled out a handgun. He then went to the passenger side of the Mustang, "reached into the passenger seat, " and fired three shots at Ramos. Two of the bullets hit the back of Ramos's head and the third hit his left arm. Saavedra testified that after the shooting Montemayor ran back to the SUV. Ramos died as a result of the gunshot wounds to his head.
Darren Ribet, an eyewitness to the shooting, gave police the license plate number of the SUV. Shortly thereafter the police located Montemayor at a residential address in Compton.
Peter Hecht, a Los Angeles County sheriff's deputy, who was an expert on gangs, testified that the intersection where the shooting took place is within the Compton Varrio Locos Trece gang's territory. Montemayor was an active member of that gang. Gang members tattoo their bodies to "tell[] everybody [they are] gang member[s] [and] not afraid to show it.... The tattoos are also used to intimidate the community, intimidate the witnesses, intimidate the victims." Montemayor had Compton Varrio Locos Trece gang tattoos on his body. He had "teardrop" tattoos, which have "a lot of different meanings." They may represent the death of a member of their gang who was murdered. Montemayor also had a "187" tattoo. Gang members often display it for "bravado."
Hecht testified that in gang culture, the mad-dogging stare is a challenge that a gang member cannot ignore. If he does, he would lose respect within the gang particularly if he is challenged on his gang's turf. A gang member must retaliate when challenged. His ability to be violent gives him a status of respect, and "[r]espect and status is everything to gang members."
In the defense case, Kristna Fritz, a sheriff's department criminalist, testified that hand samples taken from Montemayor after his arrest showed no gunshot residue. She said such "[a] negative test result doesn't indicate that a subject did not fire a gun."
Patricia Lopez, Montemayor's aunt, testified that Montemayor was at her house 35 to 40 minutes before he was arrested. On cross-examination she said that during the 22 months after Montemayor's arrest she never told the police this information.
DISCUSSION
Substantial Evidence
Montemayor contends the evidence is insufficient for conviction of shooting a firearm at an occupied motor vehicle because he discharged the gun inside the car. We disagree.
In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence in the record or decide the credibility of the witnesses.
Section 246 provides, in relevant part, that "[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle... is guilty of a felony...." (Italics added.)
Montemayor contends that because he reached inside the car and fired the gun in the vehicle, he has not committed an offense under section 246. He relies on People v. Stepney (1981) 120 Cal.App.3d 1016, 1021. There, the Court of Appeal held that "the firing of a pistol within a dwelling house does not constitute a violation of Penal Code section 246." (Ibid.) In Stepney, the defendant was standing inside the house when he fired the gun at a television set. The court concluded that he could not be convicted of firing a weapon at an inhabited dwelling, when he was standing inside the house when he fired the gun.
By contrast, here Montemayor was standing outside the vehicle when he extended his arm inside to fire the shots. In People v. Jones (2010) 187 Cal.App.4th 266, 268, the Court of Appeal held that "a person standing outside a vehicle who, while holding a gun, reaches into the vehicle through an open window or door and fires the gun, may be convicted of shooting 'at' an occupied vehicle." That is precisely what happened here. The evidence is sufficient.
Erroneous Jury Instructions
Montemayor claims the trial court did not properly instruct the jury after it requested clarification about the elements of section 246. We disagree.
The trial court instructed jurors with CALCRIM No. 965, which provides, in relevant part, "The defendant is charged in Count 6 with shooting at an occupied motor vehicle in violation of Penal Code section 246. [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully and maliciously shot a firearm; [¶] AND [¶] 2. The defendant shot the firearm at an occupied motor vehicle."
During deliberations, the jury sent a note asking for guidance from the court. In the note the jury foreman stated, "Need clarification on definition of 'shooting at an occupied motor vehicle, ' given that the gunman was standing outside the vehicle but fired within the vehicle."
In response, the trial court told the jury, "In order to satisfy all the requirements of shooting at an occupied car, as set forth in the instruction on page 26, which is Penal Code section 246, it does not matter whether the shooter is inside the vehicle, meaning the shooter's arm, or the firearm is in the car or whether the shooter is outside of the vehicle while shooting at an occupied vehicle."
Montemayor suggests that the trial court erred because where a shooter's arm and gun are inside the car when the gun is fired, the jury should be instructed that there is no offense under section 246. We disagree. The exclusion Montemayor seeks would unduly limit the scope of the section 246 offense. This would conflict with the underlying purpose of the statute. "[T]he prohibition against discharging a firearm 'at' the structures listed in section 246 must include a prohibition against discharging a firearm 'into' those same structures." (People v. Jones, supra, 187 Cal.App.4th at p. 274.) "Considered from this perspective, it seems clear that one who stands outside an occupied vehicle and sticks her hand and/or a firearm into the vehicle and shoots is firing into the occupied vehicle." (Ibid.)
The trial court said to the jurors: "[I]t does not matter whether the shooter is inside the vehicle, meaning the shooter's arm, or the firearm is in the car...." This instruction was consistent with Jones.
Admitting the Gang Expert's Opinion and Evidence about Tattoos
Montemayor contends the trial court committed reversible error by: 1) allowing the gang expert to answer a hypothetical question about Montemayor's motive for committing the crime, and 2) allowing the prosecution to present evidence about his tattoos which were unrelated to admissible gang evidence and prejudicial. We disagree.
The standard of review regarding the admission of gang evidence is whether the trial court abused its discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) "[I]t is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent." (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Gang evidence is properly admitted where "the very reason for the crime is gang related." (People v. Ruiz (1998) 62 Cal.App.4th 234, 239.)
Here the prosecution alleged a gang enhancement and claimed the offense was committed for the benefit of Montemayor's gang. "[W]here a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) "'[A] trial court has wide discretion to admit or exclude expert testimony.'" (Ibid.)
The prosecutor asked the gang expert a hypothetical question based on the facts of this case to obtain an opinion whether the offense involved a gang-related motive. Hecht testified that it did because the shooting was in retaliation for Ramos's act of "mad dogging" Montemayor. This was a challenge that could not be ignored in gang culture. Hecht said, "[I]f a gang member is challenged and doesn't do anything about it, that gang member can become a victim of his own gang for not stepping up and representing his neighborhood, his gang." Montemayor claims this evidence should have been excluded. But without this gang culture evidence, the jury would be unable to understand why Montemayor committed what otherwise appeared to be only a series of irrational violent acts. Because this evidence explained the motive for the crime, it was relevant, highly probative and properly admitted. (People v. Funes, supra, 23 Cal.App.4th at p. 1518.) There was no abuse of discretion. (People v. Valdez, supra, 58 Cal.App.4th at p. 506.)
Montemayor contends the trial court erred by admitting evidence about his tattoos. He claims the prosecution introduced evidence about his "187" tattoo which was not relevant to any of the gang evidence. He argues that 187 was the Penal Code section for murder and the prosecutor introduced this evidence solely to suggest that Montemayor was a murderer.
Evidence about tattoos may be properly admitted "to show a gang member's state of mind." (People v. Leon (2010) 181 Cal.App.4th 452, 462.) Here this evidence was directly related to evidence about Montemayor's gang culture and his state of mind and motive. Hecht testified that Montemayor's 187 tattoo was relevant to his position in relation to other members of the gang. He said, "The most important thing a gang member has is his status in the gang." It gave him a "status for being violent, " which "gives him respect not only in his gang, but his enemy's." This evidence was consistent with the prosecution's theory that protecting his gang status was an underlying motive for the crime.
In Leon, we concluded that the admission of evidence that a gang member used a moniker of "Chucky, " a killer doll, "was highly probative on the issue of appellant's motive and intent." (People v. Leon, supra, 181 Cal.App.4th at p. 462.) We concluded that its admission would not inflame jurors because the "emotional impact of the Chucky doll evidence 'paled in comparison to the testimony' concerning the actual shooting." (Ibid.) That is also the case here. The evidence about Montemayor's tattoos pales in comparison to the extreme violence of his crimes. Moreover, Hecht said the 187 tattoo is common. It does not mean that the person wearing it committed murder. Gang members often display it just for "bravado."
Montemayor contends the court erred by admitting evidence that he had a "teardrop" tattoo. He claims that this gave jurors the impression that he had been a prisoner. He notes that Hecht testified that "the teardrop is a common tattoo that prisoners put on their faces when they're in prison." True, but Hecht also testified that the tattoo "has a lot of different meanings."
Montemayor suggests that the prosecution failed to connect this evidence to his gang culture. We disagree. Hecht testified, "You talk to gang members and you ask them why they have a tattoo like that. It's always in reference to being upset or sad about something. Sometimes it will indicate that someone that's close to them, like another homeboy, was murdered, and they'll put a teardrop for that." Hecht noted that Montemayor had two teardrops. He said, "The fact there's two there, it could be maybe two of his homeboys were murdered...."
Montemayor claims the trial court erred by not excluding Hecht's testimony that his gang tattoos are used by the gang "to intimidate the community." But when Hecht made these statements during his trial testimony, Montemayor did not object. Montemayor thus waived any error. Even so, this evidence showed the intimidation aspect of the gang culture that Montemayor chose to be a part of and how this pattern of intimidation was consistent with the crime. Montemayor shot a man for simply giving him a mad-dog stare in his gang's turf. This was the most extreme example of gang intimidation.
Even if Montemayor had shown that the trial court erred by admitting tattoo evidence, the result would not change. The exclusion of the tattoo evidence would not change the outcome given the strength of the prosecution's case. There were eyewitnesses who testified for the prosecution. That testimony was compelling evidence of Montemayor's guilt. By contrast, the defense case was weak and the jury did not believe Lopez's alibi testimony.
Sentencing
Montemayor contends the trial court erred by imposing a consecutive sentence on count 6. He claims it should have stayed the sentence under section 654. But it is unclear what the sentence is on count 6.
The trial court stated that "[t]he aggregate sentence on count 1 is 50 years to life." It then said it was imposing a 20-month term on count 6, "however, pursuant to Penal Code section 654, the sentence is stayed." But the court also stated, "The aggregate sentence on count 6 is 40 years to life, which shall be consecutive to count 1." The court imposed conflicting sentences on count 6. We are unable to determine what the court intended. As the Attorney General correctly notes, "The trial court in imposing sentence on count 6, the section 246 violation, was anything but clear." Consequently, the case must be remanded to the trial court for resentencing. (People v. Garcia (1997) 59 Cal.App.4th 834, 839.)
We have reviewed Montemayor's remaining contentions and conclude he has not shown any other error.
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.