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People v. Perez

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B206479 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles, Ct. No. BA310831, Craig E. Veals, Judge

Doris M. Frizzell, 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, Senior Assistant Attorney General, Kristofer Jorstad, David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.


PERREN, J.

Victor Perez appeals the judgment entered after a jury convicted him of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a)). The jury also found true allegations that Perez personally used and discharged a firearm and proximately caused great bodily injury (§ 12022.53, subds. (b)-(d)) and committed the offense for the benefit of a gang (§ 186.22, subd. (b)(1)(C)). He was sentenced to a state prison term of life with the possibility of parole plus 25 years to life. He contends the evidence is insufficient to support the gang enhancement, and that the trial court erred in giving the flight instruction (CALJIC No. 2.52). We affirm.

All further undesignated statutory references are to the Penal Code.

STATEMENT OF FACTS

Prosecution

At about 11:45 a.m. on July 7, 2006, Daniel Espinosa was outside his friend's apartment at the corner of 54th and Main Streets in Los Angeles when he turned and saw appellant standing nearby pointing a revolver at him. Appellant said, "Where you from, homey? You bang?" Espinoza, who knew the area was controlled by the Playboys gang and understood he was being asked whether he was in another gang, replied, "I don't fuck around. I'm not from this side of town." Appellant then shot Espinoza in the stomach. Appellant fired at Espinoza again, but did not hit him. Espinoza ran into a nearby restaurant, and the owner called 911.

Jose Zamora, a door-to-door salesman, was in the area selling blankets when the incident occurred. Zamora was about to knock on a door when he saw appellant cross the street. Zamora heard someone say, "Where you from?" then turned around and saw appellant standing a few feet away holding a revolver. Zamora heard three gunshots and saw Espinoza run toward the restaurant as appellant ran across the street and got into the front passenger seat of a late 1990's model silver Honda or Acura. The Hispanic man who was driving the car headed westbound. Another witness heard the gunshots and saw a silver two-door Honda Civic with tinted windows and no license plate heading west.

Los Angeles Police Detectives Mark Morgan and Julio Benivites were heading toward the scene when they were diverted to another call regarding another incident at 36th Place and Maple Street. When the detectives arrived, they saw a man staggering on the sidewalk with blood on his face. The victim, Daniel Hernandez, appeared to have suffered a gunshot wound to the face, although no shell casings were found nearby.

Appellant was charged with the attempted murder of Hernandez, but the court declared a mistrial as to that count after the jury was unable to reach a verdict.

After the detectives arrived at the location of Espinoza's shooting, they went to appellant's house at 49th and Avalon Streets. Appellant's house is known by the police to be a Playboys gang "hangout." Eight or ten houses away, the detectives saw a silver two-door Honda with tinted windows parked on the street. Detective Morgan got out and discovered that the hood of the Honda was still hot. As soon as the detectives began surveillance on the Honda, a Hispanic man got in and drove westbound on 49th Street. The detectives stopped the Honda shortly thereafter. The driver was Jose Zavaleta, an admitted member of the Playboys gang.

As a result of ongoing criminal activity in the area, the Los Angeles Police Department had set up a system of surveillance cameras. Footage from the day of the incident depicted a silver Honda with tinted windows on 49th Street travelling eastbound toward Avalon Boulevard at 11:40 a.m. At 11:41 a.m., the Honda was seen travelling southbound on Avalon Boulevard. At 12:16 p.m., the Honda was seen pulling up by the driveway of appellant's house. Someone wearing dark clothes and a baseball cap was seen getting out of the passenger side of the car and walking onto the driveway.

On August 15, 2006, Zamora identified appellant as the shooter from a six-pack photographic lineup. At trial, Zamora testified, "[w]hen I saw it [appellant's photograph], I automatically pointed [at] it. You can't forget that face." He also testified that after observing appellant in person he was "[o]ne hundred percent" certain that he was the shooter because "his face is hard to forget. He has distinctive characteristics in his face that you would not forget."

Espinoza had surgery for his gunshot wound and spent about 10 days in the hospital. Four days after the shooting, Espinoza identified appellant as the shooter from a six-pack without any hesitation. Espinoza also positively identified appellant at trial, stating that he was "a hundred percent sure that was the guy who shot me." Espinoza had also identified appellant at an earlier hearing.

Los Angeles Police Officers Patrick Rudolf and Ronald Berdin testified as gang experts on behalf of the prosecution. Both officers were currently assigned to the Newton Division's Gang Unit and had testified numerous times as gang experts. Officer Rudolf opined that appellant was a member of the Playboys gang, based on the fact that he had admitted his membership during a 2004 arrest for selling cocaine. Since that arrest, Officer Rudolf had more than 20 contacts with appellant.

Officer Berdin had been part of hundreds of gang investigations and spoke with members of the Playboys gang on a daily basis. The gang had approximately 400 active members and claimed control of the area bounded by Vernon Avenue south to Slauson Boulevard, and from the 110 Freeway east to Central Avenue. Espinoza's shooting took place in the Playboys' territory, while the shooting of Hernandez did not. The gang's predicate offenses included possession of narcotics for sale and carjacking. Playboys member Jose Ramos was convicted of possessing cocaine base for sale in June 2005, while self-identified member Sergio Garcia was convicted of both other crimes in 2003. Appellant had also been arrested for selling cocaine in 2004.

The Playboys' main rival is the Five Five Bunch gang. While the Five Five Bunch primarily controls the area of 54th and Main Streets, the Playboys claim the area around it and stake their claim to the Five Five Bunch's area with graffiti. Much of the graffiti in the area consists of the two gangs crossing out each others' graffiti. When an area is claimed by two gangs, going into that area and shooting someone thought to be a member of the rival's gang is perceived as an act of dominance over the rival gang and shows disrespect. Any gang member who commits such an act thereby elevates his status and earns respect from his own gang. No crime is perceived as more deserving of respect than eliminating a rival gang member.

Officer Berdin was also familiar with appellant and had at least six prior encounters with him. Appellant had admitted his gang membership to the officer, and his house was a known Playboys hangout. Recordings from the surveillance cameras in the area frequently showed gang members at appellant's house or fleeing there after committing crimes in the neighborhood. When presented with a hypothetical, Officer Berdin opined that the shootings were committed for the benefit of the Playboys gang. The officer characterized the acts as typical gang-related shootings intended to eliminate rivals and send a message to rival gangs and the community that the Playboys are in control.

Defense

Officer Troy Cushman responded to the scene of Espinoza's shooting and spoke with Zamora, who told him that the shooter left in a black Acura Integra. Zamora also described the shooter as a 16- to 18-year-old, five-foot eight-inch tall Hispanic male wearing a blue hat, blue shirt, and gray sweat pants. Espinoza's description of the shooter was substantially identical to Zamora's. On cross-examination, Officer Cushman admitted that his testimony was based on his police report and not his independent recollection, and he acknowledged that Zamora's description of the vehicle may have been slightly different. He also noted that the front page of the report described the vehicle as either black or silver, and said it was possible that this is how Zamora had described it.

Dr. Kath Pezdek, a psychology professor, testified as an eyewitness identification expert. Dr. Pezdek reviewed the police reports and preliminary hearing transcript, and identified a number of factors that affect eyewitness identifications. On cross-examination, she admitted that although she had testified as an eyewitness identification expert over 200 times in the preceding 30 years, she had never testified for the prosecution in a criminal case. She also acknowledged that there were a number of factors present in the case that would support a positive eyewitness identification.

DISCUSSION

I.

Sufficiency of the Evidence - "Primary Activities"

Appellant contends the evidence is insufficient to support the jury's true finding on the criminal street gang enhancement allegation under section 186.22, subdivision (b)(1)(C). He claims the evidence failed to establish that the specified crimes of carjacking and possession of narcotics for sale were "primary activities" of the Playboys gang, as contemplated by section 186.22, subdivision (f). We disagree.

In assessing the sufficiency of evidence to support a judgment, we review the entire record, and draw all reasonable inferences therefrom, to determine whether reasonable and credible evidence exists to support the decision of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1180; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 [evidence sufficient to support criminal street gang allegation].) We do not reweigh the evidence nor do we resolve evidentiary conflicts. (Young, at p. 1181.)

Section 186.22, subdivision (b)(1), increases punishment for "any person who is convicted of a felony committed 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...." Section 186.22, subdivision (f), defines a "criminal street gang" in pertinent part as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e)...." The "primary activity" element may be proven either by expert testimony or by "evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)

Officer Berdin testified as a gang expert that Playboys gang members Sergio Garcia and Jose Ramos were convicted of possessing narcotics for sale in 2003 and 2005, respectively. Appellant was also arrested for selling narcotics in 2004. The jury also heard evidence that surveillance cameras had been set up in areas claimed by the Playboys gang due to rampant narcotics activity. This evidence is plainly sufficient to support the jury's finding that possession of narcotics for sale, one of the enumerated crimes referred to in section 186.22, subdivision (f), was one of the Playboys gang's primary activities.

According to appellant, Officer Berdin's testimony is deficient because he did not expressly use the term "primary activities" when he testified regarding the gang's criminal activities. We reject this claim. Appellant offers no authority for the proposition that a gang expert must quote the statute verbatim to satisfy the "primary activities" element of the statute, nor are we aware of any. It would have been readily apparent to the jury that the whole point of Officer Berdin's testimony on this issue was to establish that the Playboys gang qualified as a criminal street gang under section 186.22, subdivision (f). As appellant notes, the jury was instructed it had to find that the gang's primary activities included possession of narcotics for sale and/or carjacking. It is also established that expert testimony may suffice to establish the "primary activities" element of the statute. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) The expert qualifications of Officer Berdin are beyond reproach; appellant does not claim otherwise. Moreover, the officer's testimony regarding the Playboys gang's history of possessing narcotics for sale, along with the expert conclusion that is implicit in his recitation of that history, is sufficient to support the jury's finding that possessing narcotics for sale is one of the gang's primary activities. Appellant's attempt to demonstrate otherwise by reference to cases in which no expert testimony was offered is unavailing.

Appellant's citation to In re Alexander L. (2007) 149 Cal.App.4th 605 is misplaced. In that case, an expert testified that he "knew" the defendant's gang had committed a number of qualifying offenses, yet offered no foundation for his opinion. (Id. at pp. 611-612.) The court declined to credit the expert's opinion "because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay. [Citation.]" (Id. at p. 612, fn. omitted.) Here, there is no dispute that a proper foundation was laid for Officer Berdin's testimony regarding the Playboys gang's participation in narcotic sales activity, in that it was based on certified court documents and his personal knowledge. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 324 [expert's opinion properly based on his personal investigation of past crimes by gang members and information about gangs learned from colleagues and other law enforcement agencies].)

We also reject appellant's claim that the evidence is insufficient to demonstrate that members of his gang had "consistently and repeatedly" engaged in enumerated criminal activity. Even if the value of Officer Berdin's expert opinion was undermined by his failure to expressly refer to possession of narcotics for sale as a "primary activity" of the Playboys gang, that testimony, considered in conjunction with other evidence presented in the course of the trial, would suffice to establish that the Playboys gang consistently and repeatedly engaged in such activity. The evidence showed that in each of the three years preceding the trial, a different member of the gang had committed the crime, including appellant himself. The jury also heard that surveillance cameras had been set up in the area controlled by the gang due to ongoing narcotics activity. This evidence, viewed in the light most favorable to the judgment, is sufficient to establish that the Playboys gang consistently and repeatedly engaged in narcotics sales.

While appellant notes that the jury never heard whether his 2004 arrest for selling narcotics resulted in a finding of guilt, the gang enhancement statute does not require proof of a conviction. The evidence need only show that the gang engaged in the "commission" of one or more enumerated crimes. (§ 186.22, subd. (f).) The jury could infer from appellant's arrest that he had actually engaged in the criminal activity with which he was charged. We also note the probation report reflects that appellant was found to have committed the crime in a sustained juvenile dependency petition.

Appellant's reliance on People v. Perez (2004) 118 Cal.App.4th 151, on this point is unavailing. In that case, the appellate court found insufficient evidence that a gang's primary activities fell within the statutory definition where there was evidence of "retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier" because such evidence failed to establish consistent and repeated criminal activity. (Id. at p. 160.) As we have noted, the evidence here demonstrated that the Playboys gang had been engaging in narcotics sales for several years with enough consistency and frequency to prompt the police to set up surveillance cameras. Appellant's claim that the record merely discloses "[t]hree isolated crimes, committed over three years by three members of a large gang" overlooks this evidence and ignores the applicable standard of review. Viewed in the light most favorable to the judgment, the fact that three different members of the gang engaged in the crime in each of the three preceding years supports the inference that other members of the gang were committing the crime during the same time frame.

II.

CALJIC No. 2.52

Appellant asserts that the court erred in instructing the jury it could consider his flight as evidence of his guilt, pursuant to CALJIC No. 2.52. We disagree.

CALJIC No. 2.52, as given, provides: "The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." This instruction is properly given "'... whenever evidence of the circumstances of defendant's departure from the crime scene... logically permits an inference that his movement was motivated by guilty knowledge.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 470.) Even slight evidence may be sufficient to warrant giving the instruction when it shows an intent to escape detention or arrest. (People v. Schwab (1955) 136 Cal.App.2d 280, 288.) The instruction must be given whenever the prosecution relies on evidence of flight to show consciousness of guilt. (§ 1127c.)

Appellant contends the flight instruction is improperly given where, as here, the defendant's identity as the perpetrator of the crime is disputed. Our Supreme Court has expressly held otherwise. (People v. Mason (1991) 52 Cal.3d 909, 942-943.) We also reject appellant's assertion that the instruction was improperly given because "[t]he evidence of Mr. Zamora which identified appellant as the shooter was the same as Zamora's evidence of the identity of the person who fled from the scene of the crime." While the Supreme Court has recognized that the instruction is warranted "'where there is substantial evidence of flight by the defendant apart from his identification as the perpetrator...'" (People v. Pensinger (1991) 52 Cal.3d 1210, 1245), that does not mean, as appellant appears to assert, that such evidence cannot come from the same witness.

In any event, appellant fails to demonstrate prejudicial error. While he argues that the error was not harmless under Chapman v. California (1967) 386 U.S. 18, 24-25, or People v. Watson (1956) 46 Cal.2d 818, 836, the evidence against him was so overwhelming that the error would be harmless under either standard.

The judgment is affirmed.

We concur: GILBERT, P.J., COFFEE, J.


Summaries of

People v. Perez

California Court of Appeals, Second District, Sixth Division
Apr 29, 2009
2d Crim. B206479 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Perez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VICTOR PEREZ, Defendant and…

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

Date published: Apr 29, 2009

Citations

2d Crim. B206479 (Cal. Ct. App. Apr. 29, 2009)