Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA313224 Ross M. Klein, Judge.
Linn Davis, 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, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Frankie Pacheco appeals from a judgment entered after a jury found him guilty of count 1, assault with a firearm against Zadi Borquez (Borquez) in violation of Penal Code section 245, subdivision (b); count 2, assault with a firearm against Jorge Oliden (Oliden) in violation of section 245, subdivision (b); count 3, assault with a firearm against Luis Pedraza (Pedraza) in violation of section 245, subdivision (b); count 4, discharge of a firearm in a school zone in violation of section 626.9, subdivision (d); count 5, shooting at an occupied vehicle in violation of section 246; and count 6, permitting another to shoot from a vehicle in violation of section 12034, subdivision (b). The jury acquitted appellant of count 7, discharge of a firearm with gross negligence in violation of section 246.3; count 8, participation in a criminal street gang in violation of section 186.22, subdivision (a); count 9, attempted murder of Borquez in violation of sections 664 and 187, subdivision (a); count 10, attempted murder of Oliden in violation of sections 664 and 187, subdivision (a); and count 11, attempted murder of Pedraza in violation of sections 664 and 187, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found true as to counts 1, 2, 3, 4, 5, and 6 the allegations that those offenses were committed for the benefit of a criminal street gang with the intent to promote conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(B).
The trial court found true that appellant had suffered a prior conviction of a serious or violent felony, a 2000 conviction of attempted murder, pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the Three Strikes law) and pursuant to section 667, subdivision (a)(1).
The trial court also found true the allegation that appellant had served prior prison terms as a result of a 1997 conviction of possession of a firearm by a previously convicted felon and a 2000 conviction of attempted murder within the meaning of section 667.5, subdivision (b).
Appellant was sentenced to state prison for 33 years and four months as follows: on count 1, he was sentenced to the middle term of six years, doubled pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), plus a consecutive five-year enhancement under section 186.22, subdivision (b)(1)(B), plus a consecutive five-year enhancement pursuant to section 667, subdivision (a)(1). On each of counts 2 and 3, appellant was sentenced to consecutive sentences of five years eight months consisting of two years (one third of the middle term), doubled pursuant to the Three Strikes law, plus a consecutive one year eight months (one third of five years) enhancement under section 186.22, subdivision (b)(1)(B). Sentencing on counts 4, 5, and 6 was stayed pursuant to section 654.
Appellant contends that the trial court erred in: (1) denying his pretrial motion to sever counts 7 and 8, and (2) admitting gang evidence.
We affirm.
FACTS AND PROCEDURAL HISTORY
Counts 1-6 and 9-11
On November 22, 2006, around 9:00 p.m., Borquez, a recent graduate of the police academy, was driving his friends Oliden and Pedraza in Los Angeles. As he stopped at an intersection, appellant, a member of the Rose Hills gang, and three other persons in a Mustang stared at Borquez in a threatening manner from the next lane. Borquez believed that appellant was “maddogging” him, or challenging him not to look at him. Borquez, Oliden, and Pedraza got a good look at appellant, who was the driver of the Mustang, as well as at the car’s rims and lights. Borquez drove forward and heard eight to ten gunshots. When his car stalled, he ducked down and froze as his passengers urged him to keep driving. Appellant drove away and Borquez was able to pull over and call 911.
Los Angeles Police Department Officer Rene Chavez, who responded to the shooting, noticed a bullet hole in the right rear quarter panel of Borquez’s car. Borzquez and Pedraza described appellant and the passengers as male Hispanics who looked like gang members with shaved heads and wearing dark colored shirts. They told him the passenger in the front seat fired the gun. At the intersection where the shots had been fired, Officer Chavez found six expended nine-millimeter semiautomatic shell casings. The shell casings were 74 feet from the fence line of a school.
On November 25, 2006, Borquez was working as a civilian detention officer for the Los Angeles Police Department at the Parker Center facility when he saw appellant being booked. He reported to his sergeant that he recognized appellant as the driver of the Mustang. On November 27, 2006, Borzquez identified appellant as the driver of the Mustang from a photo six pack. He subsequently identified appellant at a live lineup and at trial. He also identified a photograph of the Mustang that was registered to appellant and had been impounded. Oliden and Pedraza identified the Mustang, but were unable to identify any suspects. Borquez, Oliden, and Pedraza testified that they were afraid to testify at trial because they were afraid of retaliation by appellant’s gang.
Counts 7 and 8
On November 23, 2006, at 11:30 p.m., Robert Arceo (Arceo) was walking across the street when a Mustang pulled up to him. The driver, a heavyset Hispanic man, and appellant, the passenger, repeatedly asked Arceo where he was from. Appellant pointed a handgun at Arceo. Arceo said he was not a gang member. After swearing at him and calling him “Cerote,” appellant and the other man drove off. Within a minute or two as Arceo was walking into a house, he heard three gunshots from the direction of the Mustang. He then called 911.
In the early morning hours of November 25, 2006, police officers apprehended appellant as he and another man fled from the Mustang, which was subsequently found to be registered to appellant. Officers immediately brought Arceo to that location where he identified the Mustang and appellant. At the time of his arrest, appellant’s head was shaved with the letters “R.H.” prominently displayed on the back of his head. A few months after the incident, two men wearing tattoos approached Arceo at a gas station and told him that they had their eye on him and that he should keep his mouth shut. Arceo testified that he was afraid to come to court to testify because he believed appellant’s fellow gang members would retaliate against him.
Gang Evidence
Appellant’s trial counsel unsuccessfully objected to the People’s request that appellant display his gang tattoos to the jury. Defense counsel also unsuccessfully made a motion pursuant to Evidence Code section 352 to exclude testimony by Los Angeles Police Department gang expert Officer Rudolph Rivera that the Rose Hills gang had ties to the Mexican Mafia.
Officer Rivera testified that appellant is a member of the Rose Hills gang, known for robberies, murders, attempted murders, carjackings, grand theft auto, narcotics sales, witness intimidation, extortion, and possession of firearms. Officer Rivera explained that the Rose Hills gang is aligned with the Mexican Mafia prison gang which controls other gangs by establishing hit lists and requiring the payment of taxes. At one time, the Rose Hills gang was put on a hit list because one of its members killed a child. That incident caused a rivalry between the El Sereno gang and the Rose Hills gang.
Officer Rivera testified that gang graffiti marks the gang’s territory, and gang tattoos show a member’s loyalty to his gang. Officer Rivera testified that gang members earn respect by committing crimes on behalf of the gang and by serving prison time for doing so. He stated that members build the reputation of the gang by intimidating the community.
Appellant’s gang monikers are “Weasel” and “Sneaky.” He has tattoos on his body depicting ’02, ’03, and ’04 (the years of his incarceration), as well as tattoos reading “Rose Hills,” “Ereache” (the Spanish pronunciation of the letters “R.H.”), “R.H.L.’s,” “Contodo Respecto Big Listo” (referring to a fellow gang member who killed himself rather than being apprehended by police), “projects,” and three dots, which represents “mi vida loca,” or “my crazy life.” A notebook found in the Mustang contained graffiti and appellant’s name written on the front cover filled with references to appellant’s clique within the gang and references to the monikers of other gang members.
Officer Rivera opined that the crimes of November 22, 2006, and November 23, 2006, were committed for the benefit of the Rose Hills gang. He testified that the incident of November 22, 2006, was meant to intimidate the local community to enhance the reputation of the gang. Officer Rivera based his opinion on appellant’s strong ties to his gang as exhibited by his tattoos as well as the manner in which the shooting was committed. He testified that appellant’s role was to drive the car; the passenger’s role was to use the gun to intimidate the victims; and the backseat passengers’ role was to distract the police while the others ran away in the event they were stopped. Officer Rivera opined that the use of the gun, as well as the location of the incident near a school, indicated that appellant and his cohorts were trying to create fear and intimidation within the community, and to show the strength of the gang.
Officer Rivera also opined that the November 23, 2006, incident was committed for the benefit of the Rose Hills Gang because appellant and his cohorts were attempting to build their reputation by invading a neighborhood claimed by rival gang El Sereno. He testified that the term “Cerote,” yelled by appellant and his cohorts at Arceo, is derogatory slang for El Sereno gang members.
Officer Rivera concluded that both crimes were committed to benefit the gang because: the crimes were committed back-to-back, showing that appellant and his fellow gang members were actively strengthening their gang and intimidating the community on a daily basis; and, the crimes were committed three blocks apart, showing that the gang was local, knew the territory well, and was trying to expand into rival territory.
DISCUSSION
I. The trial court did not abuse its discretion in denying appellant’s motion to sever counts 7 and 8
Appellant contends that the trial court abused its discretion in denying appellant’s motion to sever counts 7 and 8 because the People used gang evidence from those counts to bolster its theory that the crimes committed in counts 1 through 6 were committed to benefit a gang. We conclude that the trial court did not abuse its discretion in denying appellant’s motion to sever.
Section 954 provides in part: “An accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.... [T]he court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately....”
Consolidation is preferred because it promotes efficiency. (People v. Ochoa (1998) 19 Cal.4th 353, 408.) Offenses that are committed at different times and places against different victims are connected together in their commission when they are linked by a common element of substantial importance, such as a close time frame showing a continuing course of criminal conduct. (People v. Mendoza (2000) 24 Cal.4th 130, 160 [series of robberies and kidnappings occurring on three consecutive days showed a continuing course of criminal conduct by defendant].) Here, the crimes underlying counts 1 through 11 occurred within a day of the crimes underlying counts 7 and 8 and so were closely connected in time. Also, the charged crimes were of the same class of crimes or offenses since in both incidents, appellant and his companions, driving in the same Mustang, challenged the victims either verbally or nonverbally, then drove off and fired a handgun. Thus, the statutory requirements for joinder are met.
Appellant, however, claims that the trial court abused its discretion in denying his severance motion. Appellant contends that the substantive evidence as to counts 7 and 8 was very weak, but the substantive evidence as to counts 1 through 6 was very strong. He argues the gang evidence in counts 7 and 8 was improperly used for the purpose of showing that the crimes committed in counts 1 through 6 were committed to benefit a street gang. We disagree. “In determining whether there was an abuse of discretion [in the ruling on the severance motion], we examine the record before the trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case....” (People v. Mendoza, supra, 24 Cal.4th at p. 161.)
First, the gang evidence in counts 7 and 8 was cross-admissible with respect to counts 1 through 6 to show motive and that appellant acted according to a common plan or scheme. (Evid. Code, § 1101, subd. (b) [evidence is admissible to prove the defendant’s motive or intent, identity, or the existence of a common plan or scheme]; People v. Balcom (1994) 7 Cal.4th 414, 423–424.) During the hearing on the pretrial motion, the People argued that the two incidents were close in time and location to each other and were related to the same gang, bolstering the gang expert’s opinion that both of the shootings were done for the benefit of the gang. Thus, the trial court acted within its discretion in admitting the gang evidence because the evidence was cross-admissible, tending to show that appellant’s motive was to enhance the reputation of the gang by intimidating the community and that appellant engaged in a common plan during the course of the two shootings. Moreover, even if the evidence were not cross-admissible, we would not automatically agree with appellant’s argument that he suffered prejudice. Although cross-admissibility ordinarily dispels any inference of prejudice, the absence of cross-admissibility does not by itself demonstrate prejudice. (People v. Mendoza, supra, 24 Cal.4th at p. 161.)
Second, as the trial court found, the evidence respecting counts 7 and 8 was no more inflammatory than the evidence with respect to counts 1 through 6 because the charges arising out of both incidents contained gang allegations. Third, as the trial court found, joinder did not result in a bootstrapping of a weaker case to a stronger case. As the trial court noted, the mere fact that more charges were filed based on the November 22, 2006, incident did not necessarily make those charges stronger. And, there was not a great disparity between the strength of the evidence in the two incidents. The People relied on eyewitness identification of appellant and his car made shortly after appellant was apprehended as well as evidence of the same type of conduct in both incidents. Appellant’s contention that the November 23, 2006, incident was weaker because Arceo did not actually see the shots fired is unconvincing because Arceo testified at the preliminary hearing that appellant was the driver and a passenger held a gun. Nor do we find persuasive appellant’s argument that the People gave the trial court misinformation when it argued that the two incidents were similar. The trial court’s ruling that the incidents were close in time and close in proximity and dovetailed into the expert’s opinion as to a common scheme or plan was supported by the evidence. Fourth, this matter was not a capital case.
“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness,” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at p. 162.)Appellant, in simply arguing on appeal that the gang evidence in counts 7 and 8 “substantially swayed the result,” has failed to make any such showing. There is no evidence that the jury was unable to factually separate the crimes or disregarded the jury instruction that each count charged was a separate crime.
Accordingly, we conclude that the trial court did not abuse its discretion in denying appellant’s motion to sever.
II. The trial court acted within its discretion in admitting expert witness gang testimony
Appellant contends that the trial court erred in admitting evidence regarding appellant’s tattoos, parole, prison commitment, and intent as well as the Rose Hills gang’s affiliation with the Mexican Mafia. We disagree.
Evidence Code section 352 provides that a trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. Expert testimony concerning the culture, habits, and psychology of gangs is admissible as subject matter which is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 616–617.) “‘Evidence of the defendant’s gang affiliation-including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 224 (Albarran).) Expert opinion may form the basis from which a jury can find that the crime comes within the ambit of a section 186.22 gang enhancement pursuant to which the People must prove that the defendant committed a crime for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Gardeley, supra, at pp. 616–617.)
“Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates....’ ([Citation.])” (People v. Gardeley, supra, 14 Cal.4th at pp. 617–618.) “[An] expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’” (Id. at p. 618.) And, an expert witness may state on direct examination the reasons for his opinion and the matter upon which it is based, even if that matter is ordinarily inadmissible, as long as the threshold requirement of reliability is satisfied. (Id. at p. 618; Evid. Code, § 802.) We review the trial court’s decision to admit gang evidence over an Evidence Code section 352 objection for abuse of discretion. (People v. Gardeley, supra, at p. 619.)
Citing Albarran, supra, 149 Cal.App.4th at page 214, appellant contends that Officer Rivera’s opinion as to appellant’s motive in the November 22, 2006, shooting incident was based on speculation, and that his opinion had no relevance to the gang enhancement because there was no evidence that appellant was “out on a mission” or that each person had been assigned a role. But, Albarran does not advance appellant’s argument. In that case, the trial court found that the evidence was insufficient to support the gang enhancement allegation but was admissible for the limited purpose to prove motive and intent. (Albarran, supra, at p. 225.) The Court of Appeal concluded that there was insufficient evidence to support the contention that the shooting was done with the intent to gain the respect of the community because the motive for the underlying crimes was not apparent from the circumstances. That is, the shooting occurred at a private birthday party; there was no evidence as to a rivalry between gang members present at the party and the shooters; there was no evidence that any gang members had announced their presence or bragged about their involvement or created graffiti; and the expert conceded at an Evidence Code section 402 hearing that he did not know the reason for the shooting. (Albarran, supra, at p. 227.)
Here, on the other hand, Officer Rivera properly testified as to the particular culture of the Rose Hills gang as it related to the motive and intent of appellant and his fellow gang members in the commission of the underlying charged crimes. When Officer Rivera was given a hypothetical based on the facts of the November 22, 2006, incident he unequivocally opined that the incident was committed to benefit the gang. He provided information relevant to the enhancement allegation, particularly with respect to the Rose Hills gang’s symbols and signs; the primary activities of the Rose Hills gang, including intimidation of the community; the pattern of criminal activity of the gang; and the role of each member in the commission of the crime. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330–1333 [evidence regarding primary activities of gang, defendant’s active membership in gang, commission of crime in gang territory and sporting of gang tattoos supported enhancement even if there was no bragging or graffiti].) Furthermore, Officer Rivera opined that the events of November 23, 2006, as given in a hypothetical established that the crime was committed for the benefit of the gang based on the use of the derogatory word “Cerote,” and the fact that appellant was in rival gang territory. Officer Rivera testified that the two incidents were a common scheme executed closely in time and location establishing that the Rose Hills gang met the definition of a criminal street gang pursuant to section 186.22, subdivision (f) and that appellant committed the crime to create fear and intimidation within the community for the benefit of the Rose Hills gang. Thus, the jury could reasonably infer that the incident of November 22, 2006, was committed for the benefit of the Rose Hills gang with the specific intent to promote criminal conduct by gang members.
Finally, although appellant complains that his parole status was revealed by his tattoos, the trial court instructed the jury that it could not consider appellant’s parole status for any purpose. It also instructed the jury that it could not let bias or prejudice influence its decision; expert opinion is only as good as the facts and reasons on which it is based; and the jury was not bound by expert opinions but was free to disregard them if it found them to be unreasonable or unsupported by the evidence. We presume the jury followed these instructions, and defendant has not rebutted this presumption. (People v. Boyette (2002) 29 Cal.4th 381, 453.)
Accordingly, because we conclude that the trial court did not abuse its discretion in admitting the gang evidence, we need not address appellant’s further argument that absent the gang evidence, the evidence was insufficient to establish a gang enhancement or any remaining count.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J, DOI TODD, J.