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People v. Ocampo

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E049378 (Cal. Ct. App. Feb. 25, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. INF044800. Randall Donald White and Thomas N. Douglass (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges.

Judge Douglass heard the motion to recuse the Riverside County District Attorney’s Office, while Judge White presided over the trial.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

HOLLENHORST J.

Following a jury trial, defendant Jose Jonathan Ocampo was convicted of first degree murder with premeditation and deliberation (Pen. Code, § 187, subd. (a)), attempted murder (§§ 664, 187, subd. (a)), and active gang participation (§ 186.22, subd. (a)). The jury also found that defendant discharged a firearm, causing great bodily injury or death during the commission of the murder and attempted murder within the meaning of sections 12022.53, subdivision (d) and 1192.7, subdivision (c)(8), and that he committed the murder and the attempted murder for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). On August 13, 2009, defendant was sentenced to state prison for a determinate term of two years, plus an indeterminate term of 90 years to life. Defendant appeals, contending: (1) the trial court erred in denying his motion to recuse all or part of the Riverside County District Attorney’s Office; (2) the trial court erred in refusing to discharge Juror No. 5; and (3) there was insufficient evidence to support active gang participation.

All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

On August 3, 2003, between 8:00 and 10:30 p.m., Ovidio Sanchez and Daniel De La Paz were at the Mecca Vineyards Apartments with others. Sanchez and De La Paz were members of the Campo criminal street gang (Campo). They were at Mecca Vineyards Apartments to look for and confront a member of the Mecca Vineyards street gang (Mecca Vineyards) who had pulled a knife on a Campo gang member or associate.

Ovidio Sanchez is also referred to as “Colorado.”

Mecca Vineyards gang members, including defendant and Abel Fuentes, told Sanchez and De La Paz to leave. To emphasize the point, defendant displayed a gun and said, “Don’t make me pull out a strap.” Sanchez and De La Paz left with the others. As they were leaving, the car defendant and his fellow gang members had gotten into drove past, and someone pointed a gun out the window at the Campo gang members.

Defendant is also referred to record as “Wacko.”

Abel Fuentes is also referred to as “Mad Boy.”

After 10:20 p.m. on August 3, Sanchez and De La Paz returned to Mecca Vineyards Apartments to visit Lorena Martinez. Sanchez had “Campo, ” “48th Street” and “Lil One” written on his shirt. They were outside the second floor apartment on the top of the landing when Martinez noticed a male, later identified as “Kiwi, ” ride past them on a bicycle. Ten minutes later, two other males arrived from the direction the bike was travelling. The two males, later identified as Jose Corona and Mad Boy, asked Sanchez and De La Paz, who were armed with a knife and a mop handle, where they were from. De La Paz responded, “Campo, ” and the males who asked said, “Mecca Vineyards, ” and advised Sanchez and De La Paz they were in the wrong neighborhood. The taller of the two males was bald and had a “big tattoo.”

Sanchez and De La Paz headed down the stairs; however, before they arrived at the bottom, defendant rode around the corner on a bike, yelled “Mecca Vineyards” and began shooting at them. Martinez saw De La Paz get shot. She then ran up to her apartment to call 911. She did not see Sanchez get shot, because she was on the top landing at the time. Sanchez died, and De La Paz was left paralyzed from the chest down. Defendant, Mad Boy and Corona ran, got into defendant’s car and left for home. Defendant gave Corona the gun to get rid of. Corona tossed the shell casings in the desert in North Indio.

Corona, who was serving time for manslaughter, testified for the prosecution under a grant of immunity. Corona was a boxer and liked to fight, so he wanted to fight the Campo boys.

Police officers found Campo gang graffiti at the scene. They also found a knife under Sanchez’s body. All of the gunshot wounds revealed the shots were fired at very close range. Police ultimately recovered the casings from the desert where Corona had indicated, and the police found a bullet on the floorboard in defendant’s car. The casings from the desert were the same caliber as found in defendant’s car.

Following defendant’s Mirandized confession, police found in a dumpster outside defendant’s father’s house a plethora of evidence that defendant was a Mecca Vineyards gang member, including: photographs of defendant throwing Mecca Vineyards hand signs while in the company of other Mecca Vineyards gang members and wearing Mecca Vineyards gang insignia clothing; photographs of other known Mecca Vineyards gang members at the Mecca Vineyards apartment complex; and a letter from state prison addressed to defendant’s name and “Wacko.” Of note, one of the photographs depicted defendant with Steven Sanchez, one of the predicate act perpetrators. In addition to leading police to this evidence, defendant fully confessed to the shooting. Initially, when defendant was at the apartment complex, he recognized some of the people. He had heard someone say, “Fuck Mecca Vineyards.” He told them they should leave. Defendant’s gun was in his car. After the group left, defendant grabbed his gun and waited. Later, when he shot at Sanchez and De La Paz, he claimed that he did so because he thought they were “going for a gun, ” so he closed his eyes and emptied his. He denied being a Mecca Vineyards gang member; however, he acknowledged he had gang tattoos and that people called him “Wacko.”

Miranda v. Arizona (1966) 384 U.S. 436.

Steven Sanchez is also referred to as “Little Boxer.”

After the shooting and pending trial, some witnesses were threatened. Martinez testified that a known Mecca Vineyards gang member and attendee at the trial threatened her and her mother about testifying. Another witness who lived at the Mecca Vineyards Apartments received threats regarding her testimony.

A gang expert testified that defendant was an active member of Mecca Vineyards and Sanchez was a member of Campo; Mecca Vineyards and Campo were rival gangs, and defendant shot Sanchez and De La Paz because they disrespected defendant and Mecca Vineyards by being on Mecca Vineyards turf and returning when told to leave. Campo gang graffiti in Mecca Vineyards territory was a sign of disrespect, which also contributed to the need for Mecca Vineyards gang members to respond with violence. Indeed, the Mecca Vineyards gang was required to respond to maintain respect on the street. The expert testified that Corona was a member of Mecca Vineyards and is known as “Red.” Mad Boy is also a Mecca Vineyards gang member.

Regarding Mecca Vineyards gang predicate acts, the expert testified to a December 2000 (2001 convictions) assault with a firearm committed by two Mecca Vineyards gang members (Hector Palomares and Roberto Zarco) at the Mecca Vineyards apartment complex, a July 1999 murder (2001 convictions) of a Campo gang member committed by two Mecca Vineyards gang members (Hector Manriquez and Adrian Zendejas), and a May 2003 assault with a firearm and manslaughter committed by three Mecca Vineyards gang members (Robert Ochoa, Little Boxer, and Corona). Ochoa and Little Boxer were convicted of manslaughter and the assault with a firearm in November 2007, and Corona was convicted of voluntary manslaughter in December 2007.

The prosecution also offered generic gang evidence: Gang members commit violent crimes in order to gain respect for the gang member who committed the crime, as well as the gang as a whole. Here, because one Campo gang member was dead and one was paralyzed, the Mecca Vineyards gang received the most respect or “street credit.” Because word travels fast among gangs, members would know who committed the crime long before the police. Gang members like to brag and discuss crimes they have committed and crimes committed against their gang. This also updates members on where it is safe to go on the street and whether retaliation is necessary.

II. DENIAL OF PROSECUTORIAL RECUSAL MOTION

Defendant contends the trial court erred when it denied his motion to recuse the Riverside County District Attorney’s Office or the prosecutor assigned to the Indio branch of the Riverside County District Attorney’s Office (hereafter, Indio branch), based on a conflict of interest. Defendant argued the district attorney’s office had a conflict because one of its attorneys in the Indio branch had initially represented him and obtained confidential information for him about the case. The trial court held an evidentiary hearing and concluded that, while a conflict of interest existed, recusal was unnecessary. We conclude the trial court did not abuse its discretion.

A. Standard of Review

“‘Section 1424 sets out the standard governing motions to recuse a prosecutor: such a motion “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” [Citation.] The statute “articulates a two-part test: ‘(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?’”’ [Citation.] Where, as here, a defendant seeks to recuse not just an individual prosecutor but also an entire prosecuting office, he must make an ‘especially persuasive’ showing. [Citation.] We review the trial court’s decision to deny a recusal motion, even in a capital case such as this one, only for an abuse of discretion. [Citation.] Accordingly, we must determine whether the trial court’s findings were supported by substantial evidence and whether, in turn, those findings support the decision to deny recusal. [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 361-362.)

B. Background Facts

Prior to trial, defense counsel sought to have the Riverside County District Attorney’s Office recused on the ground that Deputy District Attorney Beverly Barrett had represented defendant in this case when she was a deputy public defender. Defense counsel averred that Barrett was assigned to and worked on this case as defendant’s attorney from beginning of May 2005 through August 17, 2005. According to defense counsel, “Ms. Barrett did work on the case and is assumed to have had confidential conversation(s) with [defendant] about the case.” Then, from August 18, 2005, to the date of trial, Barrett worked as a deputy district attorney for Riverside County in the Indio branch. Defense counsel noted the Riverside County District Attorney has approximately 150 to 200 prosecutors, that the Indio branch is staffed by approximately 40 prosecutors, 15 of which handle felony crimes prosecution. Defense counsel criticized the district attorney’s failure to separate Barrett from the Indio branch, claiming she could have been placed into another division (i.e., misdemeanor crimes) or another branch office in Riverside County. Also, defense counsel pointed out there was no attempt at physical separation. Rather, Barrett’s office was stationed “across the hall” from the office in which she worked when representing defendant. Defense counsel requested that the entire Riverside County District Attorney’s Office be recused. Alternatively, counsel requested recusal of the Indio branch, or the felony division of the Indio branch, or that Barrett be recused from participation in defendant’s prosecution, and that she be ordered not to discuss the case with any employee of the Riverside County District Attorney’s Office.

In response, the prosecution argued that recusal of the entire office was a “drastic step.” The prosecutor assigned to defendant’s case submitted a declaration in which he declared he had not had any contact or conversations with Barrett concerning defendant’s case since her employment, and he had no intention of talking to her about the case. He also stated that he was assigned to homicide prosecutions, working on the fourth floor of the county administrative offices and supervised by Paul Vinegrad, while Barrett was assigned to general felony prosecutions, working on the third floor and supervised by Dianna Carter. The prosecutor argued that an evidentiary hearing was unwarranted and requested that the motion to recuse be denied.

Barrett also submitted a declaration stating she had represented defendant in this matter and was “in possession of confidential attorney-client information regarding his case.” She stated she was aware of her “obligation to protect and hold inviolate all such information, ” and that she had not discussed the case, had not divulged any of the confidential information to law enforcement or others in the Riverside County District Attorney’s Office, and did not “participate in meetings with the prosecutors assigned to defendant’s case, ....”

At the conclusion of the hearing, the trial court found that a conflict existed; however, “recusal [was] not necessary.” Denying defendant’s request to recuse the Riverside County District Attorney’s Office, the trial court granted the request as to Barrett, who was to have no contact with the prosecutor on defendant’s case.

C. Analysis

The trial court found the prosecution had a conflict, i.e., “a reasonable possibility that [the prosecution’s] impartial exercise of discretion might be affected....” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 717-718, fn. 13.) Because one of Riverside County’s deputy district attorneys had represented defendant when the current charges were filed against him, her role as defendant’s prior counsel created the possibility that the district attorney’s office might be influenced in its discretionary decision making. However, the possibility that a prosecutor might be influenced does not alone establish the requisite likelihood or probability that a defendant will be treated unfairly. Under the facts presented to the trial court, it found no probability that defendant would be treated unfairly, and thus, limited recusal to Barrett only.

Defendant disagrees and cites Younger v. Superior Court (1978) 77 Cal.App.3d 892, 895 (Younger), superseded by section 1424 (which sets forth the disqualification standard for criminal prosecutions) and People v. Lepe (1985) 164 Cal.App.3d 685, pages 686 through 687 (Lepe). In both cases, an attorney representing a criminal defendant became employed with the district attorney’s office and the trial court disqualified the entire district attorney’s office. In Younger, the attorney became assistant district attorney and the appellate court reasoned that despite “steps... taken to insure that [the assistant district attorney] ha[d] no contacts with the prosecution of any of his... [former] clients, ” certain aspects of his job duties created “an appearance of possible impropriety” that rendered the trial court’s decision to be “reasonable.” (Younger, supra, at pp. 896-897.) Specifically, as assistant district attorney, the attorney attended weekly meetings of the executive staff, which meant he could participate in formulating prosecutorial policies that might affect the office’s prosecution of his former clients. Also, his membership on a promotions committee might influence how attorneys in the office handled cases against his former clients. (Ibid.)

Likewise, in Lepe, a criminal defense attorney became the district attorney for Imperial County. The trial court disqualified the entire district attorney’s office, and the appellate court affirmed the ruling, stating: “As the deputies are hired by [the district attorney], evaluated by [him], promoted by [him] and fired by [him], we cannot say the office can be sanitized such to assume the deputy who prosecutes the case will not be influenced by the considerations that bar [the district attorney] himself from participation in the case. [Citation.]” (Lepe, supra, 164 Cal.App.3d at p. 689.)

Acknowledging that the facts in this case differ from those in both Younger and Lepe, defendant claims that “this case is more compelling, ” because Barrett “actually represented [defendant] on the underlying charges, i.e., in this case.” We reject his claim. Despite Barrett’s prior representation of defendant, we note she had no managerial, supervisorial, or policymaking responsibilities in the Indio branch of the Riverside County District Attorney’s Office. Rather, as the People point out, Barrett had no influence over the prosecution of defendant’s case. She did not work in homicide prosecutions, she did not work on the same floor as the prosecutor assigned to defendant’s case, and she had not spoken with the prosecutor, nor did she have any reason to do so. Moreover, she was admonished by her supervisor not to discuss any of her previous cases and she followed such order.

As the People argue, “ample evidence was presented to establish that the Riverside District Attorney’s office sufficiently created a ‘wall of silence’ between DDA Barrett and DDA Gianguzi.” (People v. Lopez (1984) 155 Cal.App.3d 813, 827 [despite the “probable intimacy” of a 10-member district attorney’s office, the court found no actual or probable “leak in the wall of silence” between the prosecuting deputy and a deputy who was the defendant’s former attorney]; Love v. Superior Court (1980) 111 Cal.App.3d 367, 374, superseded by section 1424 [a district attorney’s office consisting of 95 deputies was considered large enough for prosecution to be insulated from communications between the prosecuting deputy and a deputy who was the defendant's former attorney].) Defendant presented no evidence either in the trial court or on appeal which contradicted that an effective ethical wall had been erected between the Indio branch of the Riverside County District Attorney’s Office and Barrett. There was only speculation by defendant that confidential information or impressions had permeated, or would permeate, the district attorney’s office. Such speculation does not constitute sufficient evidence of potential bias to recuse the entire office. Given the record before this court, substantial evidence supported the trial court’s determination that the ongoing prosecution was insulated from any prior confidential communications between defendant and Barrett to eliminate the danger of any bias or unfairness. (See People v. Hernandez (1991) 235 Cal.App.3d 674, 680.) Thus, we conclude the trial court did not abuse its discretion in denying defendant’s recusal motion.

III. FAILURE TO DISCHARGE JUROR NO. 5

Defendant contends the trial court abused its discretion and committed reversible constitutional error when it failed to discharge Juror No. 5 after other jurors reported she had expressed concern for her safety.

A. Standard of Review

“‘An impartial jury is one in which no member has been improperly influenced [citations] and every member is “‘capable and willing to decide the case solely on the evidence before it’” [citations].’ [Citation.] A defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.] [¶] ‘A sitting juror’s involuntary exposure to events outside the trial evidence, even if not “misconduct” in the pejorative sense, may require... examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation. [Citations.]’ [Citation.] ‘[T]ampering contact or communication with a sitting juror... usually raises a rebuttable “presumption” of prejudice. [Citations.]’ [Citation.] ‘Still, whether an individual verdict must be overturned for jury misconduct or irregularity “‘“is resolved by reference to the substantial likelihood test, an objective standard.”’” [Citation.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]’ [Citation.] We independently determine whether there was such a reasonable probability of prejudice. [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1303-1304.)

B. Background Facts

The matter was submitted to the jury at 3:00 p.m. on June 16, 2009. The next day, the trial judge informed counsel that Juror No. 8 had reported to the courtroom deputy that one of the jurors had expressed concern about juror safety. The court therefore conducted an extensive inquiry, questioning each of the remaining sitting jurors. The jurors (including Juror No. 5) all reported that Juror No. 5 was concerned, because she heard the case had been reported in the local newspaper, and one day when she left the courthouse after 4:30 p.m., she saw persons whom she had seen in the courtroom gallery. Juror No. 5 had expressed concerns to the other jurors in the deliberation room about walking alone to the parking lot, asking them to walk her to her car. After a few minutes, the jurors no longer discussed the issue. Juror No. 5 explained her concerns were not overwhelming and she felt comfortable evaluating the evidence and deliberating on the case. She also stated she did not know which “side” the persons who gave her concern were aligned with (prosecution or defense).

Juror No. 9 stated that Juror No. 5 indicated her concern was directed towards “associates of [defendant]” and related “in a somewhat negative way towards” defendant. Juror No. 10 just made the comment that “Juror No. 5 has a fear.” Juror No. 11 told the court that as she was leaving the court after evidence on June 16, “three little boy gangsters” had called out to her across the street from the courthouse. Juror No. 11 said she “might have” associated this conduct with defendant and “thought maybe they [(i.e., the little boy gangsters)] were friends” but she did not feel threatened. Juror No. 11 also stated she could remain impartial. She opined that Juror No. 5 “felt she was pretty concerned about it.”

Defense counsel requested that Juror No. 5 be removed from the jury, because statements by other jurors, most notably Juror Nos. 6, 9, 10, 11, and 12, reflected that the safety concerns expressed by Juror No. 5 showed she could not be fair and impartial. The prosecutor requested further questioning of Juror No. 5. Over defense counsel’s objection to the need to bring Juror No. 5 back for follow-up questioning, the trial judge brought Juror No. 5 back into the courtroom. Juror No. 5 stated: “I don’t feel unsafe, and I don’t feel at all, you know, uncomfortable. It was really just that one day, because I was in the building and left after everyone else had pretty much left.” She repeated, “I think that I am fair and impartial” and denied that her safety concerns would impact her verdict because “I didn’t know who those people were. I only knew that I had recognized them sitting at the back of the courtroom. I didn’t know which side they were on. I didn’t know at all.” Juror No. 5 also denied that she had read the newspaper, had referred to the people who had followed her as “gangsters, ” or that she made comments to other jurors that she had a “negative feeling or emphatic feel” about the people who were following her. She did not feel tainted by outside concerns and told the court that she could “be fair and impartial.”

Refusing to discharge Juror No. 5, the trial court observed, “I do not believe that this raises an issue of cause, does not rise to the level of cause, and I will deny the cause challenge at this time.” The court then admonished the jury not to consider or discuss the proceedings conducted with the individual jurors in the courtroom. Deliberations continued that afternoon and into the next day, when the jury reached a verdict.

C. Analysis

Relying on People v. Van Houten (1980) 113 Cal.App.3d 280, 288 (seated juror discharged after disclosing she could not render a fair and unbiased verdict because of her “physical and emotional reaction” to the trial testimony) and People v. Farris (1976) 66 Cal.App.3d 376, 385-387 (seated juror discharged because, during voir dire, he concealed his past arrest record and insisted he could remain fair and impartial), defendant contends “the trial court abused its discretion in failing to remove [J]uror No. 5 because the other seated jurors, when questioned individually, reported that [J]uror No. 5 was so concerned for her safety, based on an act committed by people she associated with [defendant], that she could not be an impartial arbiter of the facts.” Defendant argues that, even though Juror No. 5 may have claimed to be impartial, there were many factors that weighed against this possibility. We disagree.

This was a violent gang case in which some of the witnesses had been threatened. As the People point out, “[a]ny reasonable juror would be somewhat apprehensive about being alone with any perceived gang member possibly associated with either gang described at trial.” After an incident in which Juror No. 5 saw persons whom she had seen in the gallery of the courtroom as she left the courthouse after 4:30 p.m., she expressed her concern about the safety of walking alone to her car at the end of the day. Other jurors alleviated her concern by offering to accompany her to her car. When questioned by the court and counsel, Juror No. 5 repeatedly and unequivocally stated that her ability to deliberate impartially was not, and would not be, affected by her concerns following the incident. “Courts may properly rely on such statements to determine whether a juror can maintain his or her impartiality after an incident raising a suspicion of prejudice. [Citations.].... The trial court was in the best position to observe [the juror’s] demeanor. We defer to that court’s credibility determinations when supported by substantial evidence, and [the juror’s] emphatic and repeated assurances were substantial. [Citations.]” (People v. Harris, supra, 43 Cal.4th at pp. 1304-1305.)

IV. SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION FOR ACTIVE PARTICIPATION IN A CRMINAL STREET GANG

In his final contention, defendant challenges the sufficiency of the evidence supporting his conviction for active participation in a criminal street gang. He claims there was “no evidence he knew two or more gang members had committed two or more of the offenses specified in section 186.22 on separate occasions, with the most recent of the offense occurring within three years after a prior offense.”

A. Standard of Review

In considering a claim of insufficient evidence, we review the entire record in the light most favorable to the judgment. We must affirm the conviction so long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

The crime of gang participation is committed when a person “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... willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang....” (§ 186.22, subd. (a).) “Th[is] substantive offense... has three elements[:] Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, ... ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity, ’ and... the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.)

B. Analysis

The prosecution presented expert testimony that various members of the Mecca Vineyards gang had committed various qualifying offenses, with two or more persons, before and after the charged offenses. The expert identified the following gang members: Roberto Zarco, Hector Palomares, Adrian Zendejas, Hector Manriquez, Jose Corona, Little Boxer, and Robert Ochoa. Defendant argues that, if we assume the crimes committed by these individuals occurred within the applicable period dictated by the statute, there is “no evidence [defendant] even knew Zarco, Palomares, Zendejas, or Manriquez. Defendant further argues that while he was photographed with Ochoa, Corona, and Little Boxer, “the prosecution presented no evidence that [he] ‘knew’ what if any crimes these three committed or when—much less in the time period prescribed by the statute.”

To establish knowledge for purposes of the special circumstance, the prosecutor must prove that defendant had an “‘awareness of the particular facts proscribed in criminal statutes.’ [Citation.].... Whether ‘gossip’ or ‘braggadocio’ are [sic] sufficient to impute actual knowledge is a question for the jury.” (People v. Green (1991) 227 Cal.App.3d 692, 702, disapproved of, in part, on other grounds in People v. Castenada (2000) 23 Cal.4th 743, 747-752, 752, fn. 3.)

According to the People, the evidence was more than sufficient to support defendant’s conviction for active participation in a criminal street gang. The People point out: (1) Corona was in state prison for manslaughter; (2) Corona, Mad Boy and defendant planned to hit up the Campo gang members following their confrontations with them that same day; (3) defendant shot Sanchez and De La Paz in the presence of Mecca Vineyard gang members Corona and Mad Boy; (4) Corona disposed of the gun; (5) there were photographs of defendant posing with various Mecca Vineyards gang members, wearing gang insignia clothing, and throwing hand signs; (6) there were photographs of defendant with Little Boxer; (7) there was a letter addressed to defendant from state prison; and (8) defendant has been known as Wacko since he was 16 years old (four years prior to the current offense). Additionally, the gang expert testified that gang members tell other gang members about their crimes to increase their reputation within the gang and to keep the members informed for purposes of surviving on the streets. Usually, gang members know about crimes before law enforcement. As evidenced by the threats made against witnesses in this case, gang members know about each other’s criminal activity, the people or gangs the activity was committed against, as well as the witnesses.

The above evidence was presented to the jury, which found defendant guilty of active participation in a criminal street gang. Given the jury’s verdict, it clearly imputed actual knowledge on defendant’s part. We conclude there was sufficient evidence to support the jury’s decision.

V. DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ P.J., CODRINGTON J.


Summaries of

People v. Ocampo

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E049378 (Cal. Ct. App. Feb. 25, 2011)
Case details for

People v. Ocampo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE JONATHAN OCAMPO, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 25, 2011

Citations

No. E049378 (Cal. Ct. App. Feb. 25, 2011)