Opinion
G035844
5-21-2007
THE PEOPLE, Plaintiff and Respondent, v. PONCIANO MURILLO, Defendant and Appellant.
Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted defendant Ponciano Murillo of second degree robbery of four victims, attempted second degree robbery of a fifth victim, and street terrorism. It also found true the allegations the crimes were committed for the benefit of a criminal street gang. Defendant challenges the sufficiency of the evidence supporting the street terrorism charge and the criminal street gang enhancements. He also contends his due process and fair trial rights were violated when the trial court allowed the prosecutions gang expert to testify the crimes were committed for the benefit of a criminal street gang. We find no error and affirm the judgment.
FACTS
At around 9:00 p.m. one night in July 2004, M.V., who had just completed eighth grade, was sitting on a bench after playing basketball at an Anaheim park when defendant and two Hispanic males wearing hoods approached him. M.V. got on his bicycle to leave, but defendant grabbed the handlebars. Defendant carried a little bag, which M.V. thought might contain a weapon. Defendant asked M.V. where he was from. M.V. told him he lived in the neighborhood and was not in a gang. Defendant then said "Jeffrey," referring to a neighborhood gang. M.V. was scared because he believed defendant was in that gang and was going to jump him or pull a weapon on him. Accordingly, he complied when defendant told him to get off the bicycle. Defendant took the bicycle to the other two males, who were standing about 20 to 25 feet away. M.V. never recovered his bicycle.
Two months later on September 13, defendant robbed three teenagers and attempted to rob a fourth in separate incidents. L.S. was walking on Cerritos Avenue when defendant approached him riding a bicycle and blocked his path. L.S. was afraid. Defendant asked L.S. where he was from; L.S. knew defendant was asking whether he was in a gang. L.S. told him he was not from Jeffrey. Defendant then asked for his gold chain. Defendant lifted up his shirt, revealing a knife. L.S. gave him the chain. Defendant left on his bicycle.
A.J. was walking his bicycle on Cerritos Avenue with his friend. Defendant and another Hispanic male were across the street on bicycles. Defendant crossed over to A.J., blocked his path, and asked where he lived. When A.J. asked why, defendant pulled A.J.s sunglasses off his face. Defendant then lifted up his shirt and showed A.J. a knife. A.J. was scared. Defendant said, "Lets see what happens if you try to run" and reached for A.J.s watch. A.J. pulled his arm away and rode off on his bicycle; defendant was unsuccessful in catching him.
A.J.s friend was not paying attention and heard only part of their conversation. But he saw A.J. race his bicycle down the middle of the street looking scared and nervous. He ran after him. As he did so, he saw a second person across the street watching and thought he yelled out "Hey, El Niño."
As R.M. walked home from school on Cerritos Avenue, defendant, on a bicycle, stopped in front of him, blocking his path. Defendant asked him where he was from. R.M. knew defendant was asking whether he was in a gang. He said he was "from nowhere" and "didnt belong to any gang"; he was scared. Defendant demanded money. When R.M. said he did not have any, defendant asked for his watch, but R.M. would not give it up. Defendant then lifted up his shirt, revealing a knife in his pants pocket, and said he would hurt him if he did not give it to him. R.M. gave him $20 and defendant left.
Defendant also blocked E.H.s path with his bicycle, while defendants male companion remained across the street. Defendant asked E.H. where he was from. Because he lives in a gang neighborhood, E.H. knew what the question meant and was scared. He told defendant he was from "nowhere." When asked if he lived in Hermosa Village, E.H. said no because he was afraid of what defendant would do to him if he said he did. Defendant asked him why his head was shaved and E.H. said because it was hot. Both defendant and the other male lifted their shirts to reveal knives sticking out of their pants pockets, which frightened E.H. A few minutes later, defendant let E.H. go and rode off on his bicycle. E.H. later told the police that defendants possible nickname was El Niño.
At trial, police investigator Juan Reveles qualified as an expert in Anaheim street gangs. Reveles was familiar with the Jeffrey Street gang, its history, territory, and crimes for the period between July and September 2004. The gang was named after a street located in a predominantly Hispanic area in Anaheim known as Little Tijuana. As a result, the Jeffrey Street gang was formerly known as Los Tijuanitas or Tijuanas. Current members still use the old names in graffiti and tattoos to show respect. The gang is also known as "TJ," and "Tijuanitas." In Reveless opinion, Jeffrey Street is a criminal street gang whose primary activity from July to September 2004 was felony vandalism consisting of extensive graffiti with the gangs names.
According to Reveles, a "hit-up" is a challenge to someone from a gang member asking where the person is from. It is a form of intimidation and benefits the gang by showing a willingness to protect the gangs territory, promote the gang, and further the gangs reputation. It also creates fear in the community, "which is the driving force for all criminal street gangs." From fear comes respect, as perceived by gang members.
There are different levels of gang participation based on the level of commitment. To enhance the gangs reputation, members engage in certain activities, such as vandalism or graffiti, drive-by shootings, and murder. Their goal is to be perceived as "the most violent gang within the City of Anaheim or within Orange County."
Reveles interviewed defendant. Defendant initially denied being a gang member, but later admitted being associated with the Jeffrey Street gang. He said he started associating with Tijuanitas when he was 17 and was now a "veterano" or older member. He told Reveles he did not have a gang moniker although he did have the nicknames of Jeff, Pelon, Calleno, and "El Niño." He admitted three months earlier, he had put "El Nino" graffiti on a street in a core gang area. He has "T.J." and "NTS" tattooed on his hand. "T.J." stands for "Tijuanitas" and "NTS" represents the other letters in "Tijuanitas."
Defendant said he was in Tijuana on September 13, 2004 because of a head injury. When told he had been identified as being in the Cerritos Avenue area that day, he admitted being there. He claimed he was there because a rival gang had assaulted him the prior Tuesday and showed Reveles his head injury. He said he and "Spooky" went to that area to challenge rival gang members. Defendant bragged about his fights and claimed he uses his fists rather than weapons. He stated he and Spooky had confronted a rival tagging crew in a local park, which, according to Reveles, meant defendant was protecting Jeffrey Street turf to enhance the gangs reputation.
Defendant denied taking money from anyone. He claimed he had asked two people for a loan to buy cigarettes and one gave him $20. He returned with change, but they had already left. He used the money to buy food and drinks for Spooky and himself. Defendant also denied having a knife. When told that people had seen it, he said he had only a wire to clean pipes that he carried in a sheath on his waist. Regarding the sunglasses, defendant stated he was riding his bicycle and a male bumped into him. After they exchanged words, the male dropped his sunglasses when he left. Defendant tried to give them to another male there, but he would not take them, so defendant kept them.
Defendant also denied taking the gold chain. He said he was with Spooky when he saw a tall male throwing gang signs at him. He told Spooky to watch his back while he confronted the male. The male claimed to be from a Fullerton gang and in response defendant claimed Tijuanitas because he was a veteran member. Then for some unknown reason, the male removed his chain and gave it to defendant. Defendant said he did not want it but took it when the male insisted. He later sold it to a drunk for $5 and used the money to buy food and drinks for himself and two younger Jeffrey Street members.
Based on defendants tattoos, graffiti, statements, act of "hitting up people," and references to Spooky, it was Reveless expert opinion that defendant was an active participant in a criminal street gang from July to September 2004. He further opined the crimes were committed for the benefit of, or in association with, the Jeffrey Street gang. He based his opinion: (1) on the crimes; (2) defendants statements that he was out with Spooky to confront rival gang members; (3) his act of "hitting up" individuals he perceived to be from rival gangs; and (4) the other male reported as yelling out "Hey, El Niño," which shows association with other members. Additionally, one victim reported defendant as claiming Jeffrey Street at the time of the offense, which promotes the gangs reputation. Defendant also used stolen money or spoils to benefit younger gang members, elevating his status in the gang. Finally, Reveles considered defendants assertion that after he was assaulted he held a meeting with several of the younger members of the gang about what they were going to do about it. According to defendant, several of the younger members "lacked commitment to what they wanted to do" and as a result "he kicked eight of them out" of the gang. The fact defendant considered himself a veteran of the gang and his ability to kick members out of the gang led Reveles to believe defendant was one of the "informal leaders within the gang."
DISCUSSION
1. Street Terrorism
Defendant was convicted of street terrorism under Penal Code section 186.22, subdivision (a) (all further statutory references are to this code unless otherwise stated), which provides, "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . ." He contends the conviction should be reversed because there was insufficient evidence that he actively participated in a criminal street gang or willfully promoted felonious criminal conduct of gang members. We disagree.
Active participation means that the persons involvement with the gang must be "`more than nominal or passive. [Citation.]" (People v. Castenada (2000) 23 Cal.4th 743, 752.) The evidence shows just that. Defendant was an admitted member of the Jeffrey Street gang; he told Reveles he was out with Spooky to confront and "hit up" perceived members of a rival gang that had assaulted him the week before; he claimed Jeffrey to one of the victims; he recently put graffiti with his moniker on a street in a core gang area; he used stolen money or spoils to benefit younger gang members, elevating his status in the gang; and he professed "veterano" status with the ability to kick younger members out of the gang who lacked commitment to take action in response to his assault.
The substantial nature of this evidence is not altered by the existence of other evidence cited by defendant to show he was not an active participant in the gang. Resolution of conflicting evidence and credibility issues were for the jury to decide. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is evident from the verdict finding defendant guilty of street terrorism that the jury believed he was actively participating in the gang. Because substantial evidence supports this determination, "`that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.]" (People v. Thomas (1992) 2 Cal.4th 489, 514.)
By committing three robberies and attempting a fourth on September 13, 2004, defendant willfully promoted felonious conduct by a member of the gang—himself. Defendant maintains satisfaction of this element requires evidence that he "aided and abetted a separate felony committed by a gang member." We reject the contention.
Street terrorism "is a substantive offense whose gravamen is the participation in the gang itself." (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) "[T]he focus of the . . . statute is upon the defendants objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, italics added.)
In recognizing this intent of section 186.22, subdivision (a), Ngoun rejected the restricted interpretation defendant advances here, stating, "An active gang member who directly perpetrates a gang-related offense `contributes to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (People v. Ngoun, supra, 88 Cal.App.4th at p. 436; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Defendant argues we should disregard Ngoun and Ferraez because they conflict with the Supreme Courts decision in People v. Castenada, supra, 23 Cal.4th 743. But Castaneda did not deal with the issue raised here. Rather, the court was interpreting the meaning of the term "actively participates" and in that context stated that "a person liable under section 186.22[, subdivision ](a) must aid and abet a separate felony offense committed by gang members." (Id. at pp. 745, 750.)
In reviewing this language, Ngoun concluded that Castaneda "does not stand for the proposition that only an aider and abettor is subject to liability under section 186.22, subdivision (a) and, for the reasons we have expressed, it would be a misconstruction of the statutory language and a perversion of the legislative intent to read the subdivision in such a narrow manner." (People v. Ngoun, supra, 88 Cal.App.4th at p. 437, italics added.) We agree. Defendants attempt to distinguish Ngoun and Ferraez on their facts is unpersuasive. The determination that minor was liable as a direct perpetrator under section 186.22, subdivision (a) is affirmed.
2. Gang Enhancements
Defendant challenges the sufficiency of the evidence to support the jurys true finding on the criminal street gang enhancements. (§ 186.22, subd. (b)(1).) Specifically, he argues there was no evidence the crimes were gang-related. The contention lacks merit.
For the street gang enhancement allegation to be found true, there must be substantial evidence supporting the jurys finding defendant committed the offenses with "the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) Viewing the record in the light most favorable to the judgment below, substantial evidence exists to support the jurys finding on the enhancement allegation. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
The prosecution may rely on expert opinions by police officers specializing in street gang crime to establish the elements of the enhancement. (People v. Gardeley, supra, 14 Cal.4th at p. 617.) In particular, expert testimony may establish that a gang members crime benefited the gang by promoting "respect" for it. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1385.)
Here, Reveles opined that defendant committed the robberies for the benefit of or in association with the Jeffrey Street gang. This was based in part on defendants statements that he and Spooky were out to confront rival gang members, defendants conduct in actually confronting and hitting up several teenagers he perceived to be gang members, and his claim of Jeffrey to one of the victims. According to Reveles, a hit-up benefits the reputation of a gang because it shows its members are willing to protect their territory and promote the gang, plus it instills a sense "of fear, which is the driving force for all criminal street gangs" and translates into respect for the gang. As Reveles explained, gangs use fear to increase their reputation with other gangs and answer challenges with hit-ups or worse. Defendant specifically told Reveles during his interview that he was doing a hit-up on the victims. And by claiming the Jeffrey Street gang, defendant furthered its reputation by continuing the hit-up. In response to a hypothetical posed by Reveles, defendant also admitted that someone who committed robberies and claimed Jeffrey Street would increase the gangs reputation because other people including rival gang members knew they could not go onto its territory and take advantage of the gang. This constitutes sufficient evidence.
Defendant contends Reveless testimony that defendant is a Jeffrey Street gang member and the crimes were gang-related was speculative because he "had no real substantive evidence to support these opinions. If [his] expansive opinions are correct, virtually any criminal conduct (even if it consists of bullying adolescents) committed by a person who socializes with gang members `benefits that gang as a whole and would trigger imposition of the gang enhancement." But defendant did more than just bully adolescents. He robbed four victims and attempted to rob a fifth. In four of those, he used a knife to scare the victims. Robbery or attempted robbery at knifepoint is a serious felony, regardless of the age of the victim. Moreover, defendant told Reveles he was out with Spooky on September 13 to confront rival gang members. He then targeted the victims because he perceived them to be gang members. Reveless opinion was thus factually supported by witness testimony and defendants own statements. As such, it constitutes substantial evidentiary support for the street gang enhancements. (People v. Gardeley, supra, 14 Cal.4th at p. 617.)
3. Admission of Expert Testimony
Defendant asserts the court violated his rights to due process and a fair trial by allowing Reveles to testify the crimes were committed for the benefit of the Jeffrey Street gang. According to defendant, this constituted improper profile evidence and should have been excluded. We disagree.
"A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime." (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) Reveless testimony does not fall within that definition. Reveles did not, as defendant claims, "brand[] the crimes . . . as gang-related because [defendant] had ties to a local gang" without "credible evidence to suggest [his] conduct was motivated by anything more than personal greed and bravado." He did so based on defendants statements and conduct. Profiling evidence would have directed the trier of fact to find guilt based solely on general observations about the Jeffrey Street gang without regard to defendants actual conduct. The totality of the evidence, rather than any generalized information, was more than sufficient to convict defendant.
Defendant maintains Reveless testimony "that gang members and associates engage in crimes of various types in order to intimidate the community and to bolster respect and reputation within the gang and with other gangs" constituted improper `"[p]rofile-type evidence." But "[n]ot all testimony concerning general patterns of criminal activity is `profile testimony. . . . [¶] [B]ackground testimony is not `profile evidence and does not specifically address the guilt or innocence of the defendant. Instead, it enables the jury to understand other evidence that does address guilt or innocence. [Citation.]" (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555-1556.) For example, "in a prosecution for possession of cocaine for sale, the evidence might show recovery of only a small amount of the drug at [the] defendants house together with recovery of a large number of small plastic Baggies. A police officer with appropriate expertise may be allowed to testify that cocaine is sold in small plastic Baggies in order to explain the meaning of the evidence itself. [Citation.]" (Id. at p. 1556.)
The testimony at issue here served only as background information that allowed the jury to understand gang culture and sociology and why an admitted gang member would go around hitting up perceived rival gang members. There is nothing improper about using expert testimony to help the jury appreciate the significance of the evidence.
The trial court also did not err in overruling defendants objection under Evidence Code section 352. "[W]hile admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.]" (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.) That is not the case here. Expert testimony on gangs and gang culture has long been found admissible in criminal trials. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.) In a gang-related case, an expert may testify regarding the ultimate issues raised by the gang allegations (see, e.g., People v. Olguin, supra, 31 Cal.App.4th at pp. 1369-1371; People v. Gamez (1991) 235 Cal.App.3d 957, 965-966, disapproved on another ground in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), including "whether and how a crime was committed to benefit or promote a gang [citations] . . . ." (People v. Killebrew (2002) 103 Cal.App.4th 644, 657; see also People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931 [gang expert properly opined that drugs in the defendants possession intended to be sold for benefit of gang]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209 [expert testimony regarding why someone would go to certain location and ask person where they were from and then shoot them]; People v. Valdez, supra, 58 Cal.App.4th at pp. 508-509 [expert opinion concerning whether the defendant acted for benefit of gang]; People v. Olguin, supra, 31 Cal.App.4th at pp. 1370-1371 [expert testimony that the defendants sought out and violently confronted person who defaced their graffiti]; People v. Gamez, supra, 235 Cal.App.3d at p. 968, fn. 3 [expert testimony that motive for shooting was retaliation for earlier shooting].)
Citing People v. Killebrew, defendant contends Reveless opinion the offenses were committed for the benefit of the Jeffrey Street gang was improper because it was unnecessary and only told the jury how the case should be decided. Killebrew is distinguishable. There, the expert testified regarding a specific, subjective intent harbored by a specific individual at a specific time, rather than that the defendant had the intent to promote the gang, which Killebrew acknowledged was an appropriate subject for expert testimony. (People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-658.) Additionally, in Killebrew, the experts testimony was the only evidence offered by the prosecution to establish the elements of the crime. (Id. at pp. 658, 659.) Here, it was not.
Defendant also claims People v. Valdez, supra, 58 Cal.App.4th at p. 508 stands for the proposition that expert testimony on whether the defendant acted for the benefit of a gang "is permissible only if the situation is so complicated that expert opinion on the subject is necessary." Valdez did not say that. Valdez involved a group of people from different gangs who came together one day to attack another gang. Given these unique facts, the court concluded "the questions of how such a diverse group . . . could have been acting for the benefit of a street gang and whether the participants were doing so presented matters far beyond the common experience of the jury and justified expert testimony." (Id. at pp. 508-509.)
Defendant relies on Valdezs statement that if the evidence had showed that most or all of the participants in the group were from the same gang, the jury might have been able to determine the "`for the benefit etc." element as easily as an expert, obviating the need for expert testimony on that issue. (People v. Valdez, supra, 58 Cal.App.4th at p. 508.) But that is not what the court held. Moreover, the mere fact "[o]nly one gang, Jeffrey Street, was alleged to be behind the offenses" does not, as defendant contends, mean the jury could have determined defendant was acting for the benefit of the gang just as easily and intelligently as Reveles. Not every citizen has the familiarity with gang crime to be able to ascertain, without expert assistance, whether a crime is done for a gang purpose or benefit. The jury could have believed defendants argument he was merely acting as a bully who did nothing more than socialize with Jeffrey Street gang members and wrote his nickname in graffiti. Expert testimony was necessary to explicate why this was incorrect. As expressed in People v. Gonzalez (2006) 38 Cal.4th 932, 945-946, "`[i]t is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes "respect." [Citations.]"
Even if the jury could have drawn the inference without the experts assistance, we cannot conclude admission of the expert testimony was prejudicial. The jury retained its duty to consider all the evidence in determining the existence of every element of the crimes. To this end, the trial court instructed the jury, pursuant to CALJIC No. 2.80, that the opinion expressed by an expert witness "is only as good as the facts and reasons on which it is based," it was "not bound by an opinion," and it could "disregard any opinion [it] [found] . . . [was] unreasonable." The jury is presumed to have followed the trial courts instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
ARONSON, J.
FYBEL, J.