Opinion
C079383
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE MARIA PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F02966)
Defendant Jose Maria Perez was convicted of robbery with firearm and gang enhancements found to be true. (Pen. Code, §§ 211, 29820, 12022, subd. (a)(1), 186.22, subd. (b)(1) or (4).) Sentenced to 25 years in state prison, on appeal, defendant contends (1) the gang enhancement is not supported by the evidence, (2) the trial court erred by admitting a text message sent by codefendant Jasmine Maria Velasquez, and (3) the jury instruction regarding coconspiracy was argumentative and deprived defendant of due process and a fair trial. We shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves seven robberies and three carjackings occurring between April 16 and May 22, 2013, all committed at gunpoint by validated Sureño gang members. Velasquez, a Santa Anita Park Sureña, planned the crimes along with seven other people, including Pedro Madrigal, a member of the Angelino Heights Sureños, and members of the Howe Park Sureños. The armed robberies were to "benefit . . . the gang" and "get money so we could get drugs and guns." Although, by the end of the crime spree, Madrigal suspected the money was going to Velasquez's incarcerated boyfriend, David Zamora, a member of the Howe Park Sureños. Although Velasquez was charged with all of these crimes, defendant was charged only with the robbery of the Jack in the Box and we limit our recitation of the facts accordingly.
As the prosecution's gang expert testified, "Sureña" signifies a female Sureño subgroup or member.
Defendant, who was close friends with Madrigal, was also a member of the Angelino Heights Sureños. Defendant's moniker was Chango ("Monkey" in Spanish) or Bullet. On May 19, 2013, Velasquez sent a text message to Madrigal telling him to help the next day in robbing a Jack in the Box, reading, "Hey be ready tomorrow morning wit Chango." Madrigal had already participated with Velasquez in one armed carjacking and three armed convenience store robberies, all at issue in this case. Madrigal discussed the planned Jack in the Box robbery with defendant, who agreed to participate.
The next day, Isabel Munoz Vazquez, a Jack in the Box employee, left the restaurant to make a bank deposit of $4,100 in cash. As Vazquez got into her car, defendant and Madrigal approached, their faces covered with red cloths. They both pointed guns at Vazquez and one of the men demanded money. The men stole the cash Vazquez was going to deposit and her purse, which contained her wallet and cell phone. The men fled in a gold Cadillac driven by Velasquez. Police later seized Velasquez's gold Cadillac and found inside a red bandana containing defendant's DNA. Madrigal kept $900 of the robbery proceeds for himself and gave $200 to defendant and $3,000 to Velasquez.
During the crime spree at issue here, to throw off police, the participants (Sureños) disguised themselves by wearing red bandanas—the color affiliated with their rival gang, the Norteños.
A. Gang Evidence
Detective Lizardo Guzman, a member of the Sacramento County Sheriff's Department's gang suppression unit, testified at trial as an expert in Hispanic gangs, both Norteño and Sureño. Guzman testified there are two primary Hispanic gangs in Sacramento, the Norteños and Sureños, and they are rivals. Both the Norteños and Sureños are linked to the prison gangs known as Nuestra Familia and the Mexican Mafia, respectively. The Mexican Mafia is also known as "La Eme" (the pronunciation of the letter M in Spanish). Throughout his career, Guzman has had contact with at least 100 Sureños.
The Sureño gang is an umbrella group with subsets or "teams" throughout Sacramento. The Sureño gang is originally from Southern California, so they are not as numerous in Sacramento as the Norteños. Because they are fewer in number in Sacramento, Detective Guzman explained it is "not uncommon to see Sureños from several different neighborhoods or cliques all together getting along . . . ." Territories are "not as important to Sureños as far as rivals with other Sureños," and a member in good standing is, "welcome at any of their gang hangouts." For example, it would not be uncommon to see a Howe Park Sureño member in the area of a South Sacramento Sureño subgroup known as Caya 47th (or 47th Street), and vice versa. The Sureño subsets "all hold their own weight," "sit at the same table," and all attend a monthly meeting to "talk business," which is held at a different location every month.
One of the biggest North Sacramento Sureño subsets is the Howe Park Sureños, with more than 25 members and a territory that includes Howe Park in Sacramento. The Santa Anita Park Sureñas, which Detective Guzman became aware of as a result of this case, are a female subset of the Howe Park Sureños and have a territory adjacent to Howe Park. The Angelino Heights Sureños subset is originally from Los Angeles and is now becoming established in Sacramento, with at least six members. The Angelino Heights Sureños in Sacramento must travel monthly to Los Angeles for gang meetings and to pay "taxes." The group does not have a specific geographical territory and members "hang out" in Sureño neighborhoods or territories.
Sureños are proud of their gang membership. Like all gangs, members identify themselves with tattoos, brandings, colors, hand signs, who they associate with, the territories they claim, and where they hang out. Each member also has a moniker or nickname, in an effort to avoid knowing each others' real names and to make it more difficult for anyone cooperating with the police. Sureños are associated with the number 13, which stands for the letter M, and shows allegiance to the Mexican Mafia. Sureños are also associated with the color blue, since Mexican Mafia members were issued blue handkerchiefs in prison. In contrast, the Norteños are associated with the color red and the number 14, which corresponds to the letter N, and Nuestra Familia. Subsets may also have special markers, such as a tattoo with A and H for the Angelino Heights Sureños.
In the 1990's, the Mexican Mafia "sat down" with all the Sureño gang members and set down certain rules, including banning drive-by shootings for Southern California Sureño gang members. In addition, the Mexican Mafia started requiring Sureño subsets to pay taxes from the proceeds of their criminal activity. Typically a representative from the prison gang will go out to the Sureño subsets and collect the taxes. In exchange, the Mexican Mafia provides protection when a Sureño comes to prison. Any Sureño subsets that did not pay taxes would not be protected in prison.
The primary activities of the Sureños are murder, firearm possession, robbery, assault with a deadly weapon, possession of controlled substances for sale, burglary, carjacking, and home invasion robbery.
Detective Guzman also testified to two predicate offenses involving Sacramento Sureño subsets: (1) validated Sureño gang member Mario Rodriguez was convicted in 2013 of being a felon in possession of a firearm and being a felon in possession of ammunition (§§ 29800, 30305). Rodriguez admitted to police he had the gun for his protection against rival Norteño gang members; and (2) validated Sureña gang member Daisy Ramirez discharged a handgun at a group of five Norteño gang members and was convicted in 2013 of assault with a firearm and discharging a firearm from a moving vehicle (§ 245, subd. (a)(2), former § 12034, subd. (c)).
In Detective Guzman's opinion, defendant was a member of the Sureño gang and the Angelino Heights subset. He had numerous Sureño gang tattoos, including three dots on his left wrist and one dot on his right wrist, symbolizing the number 13, the letter M, and his allegiance to the Mexican Mafia. In addition, defendant symbolized his allegiance to the Angelino Heights Sureños with an "Angelino Heights" tattoo on his chest and the letters A and H tattooed on his back. He also made a gang sign during a previous jail booking photo.
Defendant admitted to police he was a Sureño. In addition, Detective Guzman was aware of at least five occasions between 2010 and 2014 where the police found defendant in the company of validated Sureño gang members, including members of the Angelino Heights and Howe Park subsets.
In Detective Guzman's opinion, Velasquez was also a Sureño gang member. She had numerous Sureño gang tattoos, including the number 13 on her left hand and three dots on her face and right hand. She also had an "SPS" tattoo, symbolizing her allegiance to the Santa Anita Park Sureñas. In addition, Velasquez told police she was a Sureña and police had previously found Velasquez in the company of other validated Sureño gang members, including her brother, who is a validated Howe Park Sureño.
The prosecutor posed several hypothetical questions to Detective Guzman in line with the evidence presented in the case. Guzman opined the hypothetical crimes as described (robberies and carjackings) would benefit or promote the gang by bringing money into the gang and providing getaway vehicles not associated with the gang. The gang would even benefit if the criminal proceeds were funneled to an incarcerated member because that member would have money to pay for things in jail, such as extra clothing and food, and because it would bring the gang into the good graces of the dominant prison gang, such as the Mexican Mafia. In addition, a gang would benefit from a member possessing a weapon because this is "the ultimate item that demands respect" from both fellow and rival gang members. Finally, planning and executing these crimes would increase the status of the gang and its members and instill fear in the gang's community.
In addition to Detective Guzman, Madrigal also testified at trial about the Sureño gang. Similar to Guzman, Madrigal testified the Sureños originated from the Mexican Mafia and are associated with the number 13 and three dots. The Sureños also have a particular hand sign known as "The S," which members use to signal they are a Sureño.
Madrigal testified there are four or five Sureño subsets in Sacramento, including Angelino Heights, Howe Park, and Santa Anita Park, all three of which are located in or around Howe Park. According to Madrigal, the Howe Park Sureños had about 100 members, while the Angelino Heights Sureños had about 30 members. Because the Howe Park Sureños have more members, they are "more prestigious" and stronger than the Angelino Heights Sureños. Although some people in the Angelino Heights and Howe Park Sureños dislike each other and do not work together, historically the two groups "all associate together" and have an "alliance." It was common for the Angelino Heights, Howe Park, and Santa Anita Park subsets to share guns.
For example, one time a Howe Park Sureño member asked Madrigal to hold on to a revolver and never came to retrieve it.
B. Pretrial Motions
Prior to trial, defendant moved pursuant to Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518 (Aranda) to exclude statements made by Velasquez that implicated defendant, including Velasquez's text to Madrigal the night before the Jack in the Box robbery, reading, "be ready tomorrow morning wit Chango." The trial court held the text was admissible, reasoning it was nontestimonial and therefore did not trigger the confrontation clause or the Aranda/Bruton rule. In addition, the trial court noted the text was a private message between friends in a noncoercive setting, indicating trustworthiness. Finally, although the trial court did not believe the text was hearsay, if it were, the text was admissible under the coconspirator hearsay exception.
C. Verdict and Sentencing
A jury convicted defendant of second degree robbery and found true the gang and firearm enhancements. (§§ 211, 186.22, subd. (b)(1), 12022.53, subd. (b)—count ten.) The trial court sentenced defendant to prison for an aggregate 25 years, as follows: the upper term of five years for the robbery, plus 10 years for the firearm enhancement, plus 10 years for the gang enhancement. (§§ 211, 12022.53, subd. (b), 186.22, subd. (b)(1)(C).)
DISCUSSION
I. Admission of Text Message Sent by Codefendant Velasquez
Defendant contends the trial court violated his Sixth Amendment confrontation clause rights by failing to exclude Velasquez's text message telling Madrigal to "be ready tomorrow morning wit Chango." According to defendant, the text was an extrajudicial confession of his nontestifying codefendant Velasquez and is accordingly inadmissible under the Aranda/Bruton rule. In the alternative, defendant contends Velasquez's text was not a coconspirator statement and was therefore inadmissible hearsay. We disagree.
Under the Aranda/Bruton rule, a " ' " 'nontestifying codefendant's extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant's right of confrontation and cross-examination, even if a limiting instruction is given.' " ' " (People v. Capistrano (2014) 59 Cal.4th 830, 869.) In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 193, 195], the Supreme Court held the confrontation clause only bars admission of "testimonial statements" of unavailable witnesses where the defendant had no prior opportunity for cross-examination. Accordingly, an out-of-court nontestimonial statement, including a statement by a codefendant, does not implicate the confrontation clause. (See, e.g., People v. Arceo (2011) 195 Cal.App.4th 556, 571, 573; United States v. Smalls (10th Cir. 2010) 605 F.3d 765, 768, fn. 2.)
It is undisputed Velasquez's text was nontestimonial, and we decline defendant's invitation to reject established case law and apply the Aranda/Bruton rule. Accordingly, " 'the issue is simply whether the statement is admissible under state law,' " either because it is not hearsay or falls under an exception to the hearsay rule. (People v. Arceo, supra, 195 Cal.App.4th at p. 573; see Ohio v. Clark (2015) 576 U.S. ___. ___ [192 L.Ed.2d 306, 317] ["statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers"].)
Although Velasquez's text does not appear to have been offered for the truth of the matter asserted, even if it were hearsay, we would conclude it was properly admitted under the coconspirator exception. (Evid. Code, § 1223; see People v. Montes (2014) 58 Cal.4th 809, 863 ["an out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief"].) Under Evidence Code section 1223, a hearsay statement made by a defendant's coconspirator is admissible against the defendant if there is independent prima facie evidence of the existence of a conspiracy and independent evidence of the following three preliminary facts: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy." (People v. Leach (1975) 15 Cal.3d 419, 430-431, fn. 10.) The prosecution must present "independent evidence to establish prima facie the existence of [a] conspiracy." (Id. at p. 430.) As the courts have explained, " '[e]vidence is sufficient to prove a conspiracy to commit a crime "if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ' " (People v. Clark (2016) 63 Cal.4th 522, 562.)
Despite defendant's contentions, the prosecution presented sufficient independent evidence from which the trial court could have found a conspiracy between Madrigal, Velasquez, and defendant to rob the Jack in the Box. Copies of Velasquez's other texts and testimony from Madrigal and other witnesses demonstrated Velasquez had committed a series of robberies with Madrigal and planned to rob the Jack in the Box. In addition, defendant discussed the Jack in the Box robbery with Madrigal, agreed to participate, and was at the designated meeting place when Madrigal arrived a few hours before the robbery. Moreover, defendant got in the car with Madrigal and Velasquez when they left to rob the Jack in the Box.
Regardless, any error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]; People v. Watson (1956) 46 Cal.2d 818, 837.) There was additional evidence establishing defendant's participation in the Jack in the Box robbery, including (a) Madrigal's testimony identifying defendant as a participant, and (b) the criminalist's testimony confirming that defendant's DNA was on the red bandana from the getaway car. In addition, the trial court instructed the jury that it could not consider Velasquez's text as evidence of defendant's guilt unless it found by a preponderance of the evidence the elements of the coconspirator hearsay exception were met. We reject defendant's contentions.
II. Jury Instruction Regarding Coconspiracy
The trial court gave the jury uncharged conspiracy instructions, including CALCRIM No. 416, which included the following sentence: "The People have presented evidence of a conspiracy as to the robbery of Jack in the Box charged in count 10." Where, as here, the prosecution did not charge conspiracy as an offense but introduced evidence of a conspiracy to introduce hearsay statements of coconspirators, a court has a "sua sponte duty" to give the CALCRIM No. 416 instruction. (Bench Notes to CALCRIM No. 416 (Apr. 2014) p. 178, citing People v. Pike (1962) 58 Cal.2d 70, 88 & People v. Ditson (1962) 57 Cal.2d 415, 447.)
Although, as defendant concedes in his brief, the instruction provided the elements necessary to prove conspiracy and the jury was instructed that guilt must be proved beyond a reasonable doubt, defendant contends it was error to give this instruction because it gave the prosecution an evidentiary advantage and was argumentative. The People contend defendant forfeited the issue by agreeing to the instruction at trial, but, given our determination on the merits, we need not reach this issue. (See § 1259 [this court "may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; but see People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 ["[g]enerally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection"].)
Instructional error is determined from the entire charge of the court, not by isolated parts of the instructions or from one particular instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) Rather, a reviewing court reads the instructions as a whole to determine whether there is a reasonable likelihood they confused or misled the jury. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 341.) We presume the jurors understood, correlated, and correctly applied the instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) An instruction is argumentative when it "recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law," or " ' " 'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence.' " ' " (People v. Campos (2007) 156 Cal.App.4th 1228, 1244; see People v. Lewis (2001) 26 Cal.4th 334, 380-381.)
Despite defendant's contentions, the instruction here neither invites inferences that are favorable to either party nor integrates facts of the case as an argument to the jury. The language was neutral and properly outlined the requisite elements of a conspiracy. (People v. Williams (2008) 161 Cal.App.4th 705, 710.) The instruction also properly explained, "You [(the jury)] must decide as to each defendant whether he or she was a member of the alleged conspiracy," making clear it was for the jury to decide whether the prosecution proved the elements of a conspiracy. (Ibid.) In addition, defendant was charged with robbery, not conspiracy, and CALCRIM No. 416 was given in the context of instructing the jury that it could consider Velasquez's text only if the prosecution had proven the required elements for the coconspirator hearsay exception. Moreover, the trial court properly instructed the jury with CALCRIM No. 220 that the prosecution was required to prove defendant "guilty beyond a reasonable doubt." Considered as a whole, the instructions indicated the jury was to determine defendant's guilt and could consider Velasquez's text only if it determined the prosecution had proven the elements of the coconspirator hearsay exception. (Williams, at pp. 710-711.)
Regardless, any error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; see People v. Hunter (2011) 202 Cal.App.4th 261, 278.) The instruction was given in the context of whether the jury could consider Velasquez's text, and, as previously discussed, there was ample other evidence of defendant's guilt, including accomplice testimony and DNA evidence.
III. Evidence to Support Gang Enhancement
According to defendant, the evidence was insufficient to support the gang enhancement because the People failed to establish the required element of a "criminal street gang." (§ 186.22, subd. (b)(1).) Relying on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), defendant contends the predicate offenses described by the People's gang expert were committed by members of unnamed Sureño subsets and there was no substantial evidence linking this generic or greater Sureño gang to defendant's subset. We disagree.
On appeal of a section 186.22 gang enhancement, " ' "we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ' [Citation.] ' . . . Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' " (People v. Wilson (2008) 44 Cal.4th 758, 806; see People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [substantial evidence standard of review applies to § 186.22 gang enhancements].)
Section 186.22, subdivision (b)(1) increases punishment for those who commit felonies "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ."
A group is a " 'criminal street gang' " (§ 186.22, subd. (f)) if: "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.] [¶] A ' "pattern of criminal gang activity" ' is defined as gang members' individual or collective ' commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons." (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
In Prunty, the court held that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) There are multiple ways to show such a connection, such as "evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Ibid.) Ultimately, the People must show the defendant sought to benefit the "same 'group' that meets the definition of section 186.22[, subdivision] (f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities . . . ." (Prunty, at p. 72.)
We conclude the evidence presented at trial sufficiently established the existence of a criminal street gang under Prunty because the prosecution offered evidence of an organizational connection between the Sureño umbrella group and its Sacramento subsets. The gang expert testified the Mexican Mafia asserts authority over all the Sureños, including setting rules such as banning drive-by shootings and requiring payment of "taxes" to the Mexican Mafia, in exchange for protection of incarcerated Sureños. In addition, the prosecution established an organizational connection among the Sacramento Sureño subsets. The gang expert testified that members of different Sureño subsets are commonly seen together in the same vicinity and territory, "getting along." "As long as [a gang member is] in good standing with the [Sureño] gang, they're welcome at any of their gang hangouts." Significantly, the Sacramento Sureño subsets "sit at the same table" and work together, including holding monthly meetings to "talk business." Madrigal also testified that the Angelino Heights and Howe Park Sureños have a historical alliance and share guns among themselves and with the Santa Anita Park Sureñas.
That the Sureño subsets were working together and had an organizational connection is further indicated by the testimony of defendant's accomplice, Madrigal, who explained Velasquez and members of two other Sureño subsets met and planned the crimes at issue here "to benefit the gang" and "get money so we could get drugs and guns." Even if the criminal proceeds went to inmate Zamora, according to Detective Guzman, the gang would still benefit because committing the crimes would enhance the gang's status within the community, help the gang become more proficient at committing crimes, and bring the gang into the good graces of the Mexican Mafia.
Accordingly, there was substantial evidence upon which the jury could reasonably conclude the larger Sureño gang qualified as a criminal street gang, and that defendant committed the crimes at issue here for the benefit of the larger Sureño gang with the intent to further the gang's activities. We find no error.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.