Opinion
2d Crim. No. B200269
7-21-2008
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR PAUL PEREZ, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Appellant Arthur Paul Perez was convicted by jury of the attempted murders of Brian Harris and Yvonne Pasillas (counts 1 & 2, Pen. Code §§ 664, subd. (a); 187, subd. (a); 189); shooting at an inhabited dwelling (count 3, § 246); possession of a firearm by a felon (count 4, § 12021, subd. (a)(1)); corporal injury to childs parent (count 5, § 273.5, subd. (a)(1)); and corporal injury to a child (count 6, § 273d, subd. (a)). The jury further found that the attempted murder of Brian Harris (count 1) was willful, premeditated and deliberate, but did not make that finding as to the attempted murder of Yvonne Pasillas (count 2). Another count of corporal injury to a child (count 7) and a count of felony vandalism over $400 (count 8, § 594, subd. (a)) were dismissed because the jury could not reach a verdict on those counts.
The jury found true the personal firearm allegations as to counts 1 through 3 (§ 12022.53, subds. (a)-(d)) and a gang allegation as to counts 1 through 4 (§ 186.22, subd. (b)). It further found that appellant had been convicted of a serious or violent felony within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) Appellant was sentenced to 170 years in state prison, with presentence credits for 816 days of actual custody. A single $20 security assessment fee was imposed pursuant to section 1465.8, subdivision (a)(1).
Appellant contends 1) the trial court erred by giving a "kill-zone" instruction (CALJIC 8.66.1); 2) the evidence was insufficient to support his conviction on count 2; 3) the court improperly admitted opinion testimony; 4) the testimony of a gang expert violated the confrontation clause; 5) the court erred in denying his motion for a new trial; 6) the court improperly joined certain counts; 7) he was denied effective assistance of counsel; 8) the court improperly denied his motion to limit evidence of gang predicate offenses; 9) the sentence on count 3 should have been stayed pursuant to section 654; and 10) he was prejudiced by cumulative error. We affirm with directions to correct an error in the abstract of judgment.
FACTS
Testimony Regarding Counts 1 through 4
On December 28, 2004, at approximately 1:45 a.m., victims Brian Harris, and his girlfriend, Yvonne Pasillas, were visiting a friend in Whittier. At the house were Harriss friends, Carlos and Chino, and a woman by the name of Veronica Montoya (Ronnie).
Chino left the house in Harriss car. Approximately 20 minutes later, Chino called Harris on his cell phone and said that someone was trying to collect "rent" from him. Harris told Chino that there are certain people he should check with before he pays anyone "rent." He told Chino to talk to Little Man and Victor, members of the Canta Ranas gang who have permission from the Mexican Mafia to collect "taxes" in that area.
Fifteen minutes later, someone knocked on the door of the house where Harris was visiting. Harris answered it, and appellant was standing outside on the porch with another man. The second individual was known to Harris as the son of Ronnie, who was inside the house. Appellant asked Harris if he was "Joker from [the Canta Ranas gang]." Harris said yes, and appellant identified himself as Snappy from the Los Nietos gang. He said to Harris, "Dont be telling my homeboys what to do."
Harris tried to tell appellant that he was a veteran member of Canta Ranas, and did not know what appellant was talking about. Harris named some veteran members of appellants gang and appellant said, "fuck them," then pulled out a gun. They started to scuffle and appellant shot Harris in the hip. Harris fell to the ground and shoved the door closed. Appellant continued to shoot, firing five or six shots into the house.
Yvonne Pasillas testified that she heard Harris at the front door, arguing with someone about selling drugs. The person was telling Harris that he should not sell drugs there because it was not his neighborhood. Pasillas heard gunshots and saw Harris fall to the ground. She testified that she ran to the door and kicked it shut. Appellant stepped off the porch and Pasillas ran through the middle of the living room. Appellant fired into the living room as she ran. One of the bullets nicked her leg.
Harris testified that he grew up in Santa Fe Springs. When he was 12 years old, he was jumped into the Canta Ranas gang and given the moniker "Joker." Their rival gang is Los Nietos. Both gangs are involved in the sale of drugs. Canta Ranas sells marijuana, methamphetamine, heroin and cocaine. On an average weekend they can make $10,000 per day. The gangs have neighboring territories. Harris was first incarcerated at age 18 and has spent approximately 20 years of his life in jail or prison.
The Mexican Mafia is a prison gang that is considered the superior of Canta Ranas and Los Nietos. They determine the territory in which each gang can sell drugs and decide who can collect "rent," or a share of drug sales. Harris gained status within the gang. His uncle, also a member of the Mexican Mafia, had become a Christian. Harris was ordered to kill him because no member is ever allowed to leave the Mafia. Harris disobeyed the order and the Mexican Mafia gave him a "green light," meaning that anyone could kill Harris, even a member of his own gang.
Testimony Regarding Counts 5 through 8
Amber Lozana is appellants former girlfriend. She lives with her children, Ariel and Miranda. Appellant is Mirandas father. On December 28, 2004, at approximately 3:00 a.m., appellant went to Lozanas house and walked into her bedroom where she was asleep with her children. Appellant and Lozana began to argue. Ariel woke up and Lozana asked him to leave the room.
Ariel returned to the room and climbed onto the bed near his mother. Appellant became angry and struck Ariel, who fell off the bed and hit his head on a dresser. Lozana told appellant to leave. He grabbed her neck and pressed on it. Lozana told him to get out and pushed him away. She walked into the living room and appellant threw a bottle of beer against the wall, then left.
DISCUSSION
CALJIC 8.66.1
Sufficiency of the Evidence on Count 2
Appellant claims that the trial court erred by giving CALJIC No. 8.66.1, concerning attempted murder and concurrent intent. Appellant argues that the instruction was unsupported the evidence and diluted the prosecutions burden of proving that appellant possessed the intent to kill Yvonne Pasillas. Appellant also contends the evidence is insufficient to sustain the attempted murder conviction as to Pasillas (count 2).
CALJIC No. 8.66.1 provides, "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the `kill zone.] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [kill zone] or [zone of risk] is an issue to be decided by you." (Brackets in original.) Appellant objected below, and argues here, that the evidence did not support the instruction.
To prove attempted murder, there must be sufficient evidence of the intent to commit the murder plus a direct but ineffectual act toward its commission. Implied malice is an insufficient basis upon which to sustain a charge of attempted murder because specific intent is an element of that charge. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) The doctrine of transferred intent does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 329-331.) However, concurrent intent to kill may be shown under certain circumstances. Where "`[t]he defendant has intentionally created a "kill zone" to ensure the death of his primary victim, . . . the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim." (People v. Bland, supra, 28 Cal.4th at p. 330.)
In Bland, the defendant and a companion fired multiple rounds from a handgun into a car, where a gang member and two passengers were seated. The Bland court held that the defendant could not be guilty of attempted murder on a theory of transferred intent, but that the jury could reasonably conclude that the defendant harbored a concurrent intent to kill all the passengers in the car along with the primary intended victim. (People v. Bland, supra, 28 Cal.4th at pp. 330-331.)
There is no evidence from which the jury could have inferred that appellant intended to kill Harris by shooting everyone in his vicinity. The shooting erupted from a conflict with Harris. It is unclear whether appellant was even aware that Carlos and Ronnie were in the house. Once the shooting began, Carlos, Ronnie and Pasillas fled, leaving Harris alone inside. The evidence does not support a conviction under a "kill-zone" theory, thus the trial court erred by giving CALJIC No. 8.66.1
However, the evidence is sufficient to support appellants conviction for the attempted murder of Pasillas under a direct intent theory. Harris and appellant were members of rival gangs and appellant knew Harriss identity. Appellant went to the house Harris was visiting and told him that he could not sell drugs in the area, because it was territory belonging to appellants gang.
Pasillas was Harriss girlfriend. She testified that she overheard the argument between Harris and another man and heard a gunshot. She ran to the front door and kicked it closed and the shooter continued to fire at the house. Appellant shot through the living room windows as Pasillas ran through the room.
By shooting at Pasillas as she fled through the living room, appellant demonstrated the specific intent to kill necessary to prove attempted murder. (People v. Smith (2005) 37 Cal.4th 733, 739.) He purposefully discharged a firearm at Pasillas, who was directly in his line of fire, supporting the inference that he acted with the intent to kill her. (Id. at p. 743.) This evidence was sufficient to support the conviction for the attempted murder of Pasillas on count 2.
Opinion Testimony Concerning Gang Activity
Appellant argues that the trial court denied his constitutional right to due process by permitting Harris to testify as a gang expert. Before opening statements, defense counsel objected to the use by the prosecutor of a power point presentation which she alleged contained hearsay concerning appellants connection with various gangs and their activities.
Following trial, appellant filed a motion for a new trial arguing that the court erred by allowing Harris to testify as an expert. At the hearing on the motion, the court stated it had had never qualified Harris as an expert, but that he had merely testified about his personal history with the gang, and denied the motion.
A person may qualify as an expert witness if his special knowledge, skill, experience, training, or education so qualify him. (Evid. Code § 720, subd. (a).) Expert witnesses may testify to subjects that are sufficiently beyond common experience, such that expert assistance is helpful to the jury. (Id., § 801, subd. (a).) Harris testified extensively based on his personal knowledge about the Mexican Mafia, Canta Ranas and Los Nietos. He had not been qualified as an expert, but his specialized knowledge and testimony were too sophisticated and detailed to constitute admissible lay opinion testimony. However, the erroneous admission of expert testimony warrants reversal only if "`it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Prieto (2003) 30 Cal.4th 226, 247.) Harriss eyewitness testimony concerning the circumstances surrounding the shooting is unaffected by the erroneously admitted gang expert testimony.
Alleged Violation of Confrontation Clause
Appellant challenges the admission of evidence used to prove the gang enhancement pursuant to section 186.22, subdivision (b). Citing Crawford v. Washington (2004) 541 U.S. 36, appellant claims this evidence was inadmissible hearsay and violated his Sixth Amendment right to confrontation.
Noel Furniss is a detective with the gang unit in the Los Angeles County Sheriffs Department. He testified that appellant admitted to two other officers that he was a gang member. Neither officer testified at trial. Furniss also testified that six other individuals were "admitted" gang members, noting that their names were in a gang file as "self-identifying" members of Los Nietos. The trial court admitted certified documents reflecting the convictions of those six individuals, for the purpose of proving predicate offenses pursuant to section 186.22.
The gang enhancement in section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang, the People must prove that (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign or symbol; (2) one of their primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the groups members engage in, or have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f).) It is well settled that the testimony of a gang expert is admissible to prove the elements of a gang enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620.)
Appellants reliance on Crawford is misplaced. Crawford concerned the substantive use of hearsay evidence admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the material on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Denial of New Trial Motion
Appellant claims the trial court erred in denying his motion for a new trial based on newly discovered evidence. (§ 1181.) He claimed he had located a witness who could testify that he was not present at the shooting.
On the night of the shooting, one of the visitors in the house was Veronica Montoya (Ronnie). Attached to appellants motion for a new trial was a declaration by Ronnie that she saw the two individuals on the porch that night, and that appellant was not one of them.
The trial court denied the motion, finding that the declaration lacked credibility. It rejected defense counsels assertion that Ronnies identity was newly discovered, noting that the matter had gone to trial two years after the shooting. If Ronnie had been aware of the evidence at that time, she had the opportunity to come forward. We review the denial of a new trial motion for an abuse of discretion. (People v. Coffman (2004) 34 Cal.4th 1, 127.) The court reasonably found that the result would not have been different had the jury heard this evidence.
Joinder of Counts 1 through 4 with Counts 5 through 8
Appellant argues that it was prejudicial error for the court to join counts 1 through 4 with counts 5 through 8. Counts 1 through 4 arose from the shooting, while counts 5 through 8 were related to violence inflicted upon appellants girlfriend and her son. The domestic violence occurred shortly after the shooting and approximately two miles away.
Appellant must show that the denial of a severance motion was a prejudicial abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 508.) It appears that the charges were joined at the beginning of the preliminary hearing. There is no indication in the record that appellant moved to sever the counts or that the court ruled on such a motion. Appellant has not identified an appealable order for our review.
Ineffective Assistance of Counsel
Appellant alleges that he was denied the effective assistance of counsel. He contends that counsel was ineffective by failing to impeach Harris with known information regarding gang practices and by failing to call certain eyewitness experts.
To establish an ineffective assistance of counsel claim, a defendant must show that counsels performance was deficient and prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Decisions as to whether to call a particular witness in defense are matters of trial tactics. (See People v. Bolin (1998) 18 Cal.4th 297, 334.) Appellant has not shown a reasonable probability that, but for counsels alleged failings, the result of the proceeding would have been more favorable to him.
We reject appellants remaining ineffective assistance of counsel claims raised throughout his brief because the conduct of which he complains does not constitute error, as we have explained in detail above.
Denial of Motion Limiting Admission of Gang Predicate Offenses
Appellant contends the court erred by denying his motion to limit the prosecutors presentation of predicate offenses for proving the gang allegation, pursuant to section 186.22. The court denied the motion, indicating that the People put in as much evidence as possible to show the predicate act and existence of gang activity. The court concluded that, under the circumstances of the offense, the admission of two to six predicate offenses was an appropriate number. On appeal, appellant argues that admission of these offenses was unduly prejudicial.
We reject the argument. Gang evidence is admissible if relevant to a material issue, unless its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (People v. Carter (2003) 30 Cal.4th 1166, 1194; Evid. Code, § 352.) The court properly exercised its discretion in determining that the predicate acts were necessary for the prosecution to prove the existence of a predicate act and a pattern of gang activity.
Section 654 Stay on Count 3
Appellant claims that his sentence for shooting at an occupied building (count 3) should have been stayed under section 654.
At sentencing, the trial court chose count 1 as the principal term and imposed a consecutive sentence on count 3. Defense counsel argued that that the punishment must be stayed on count 3 because there was no evidence of additional victims to justify consecutive sentencing on count 3. The trial court found that section 654 was inapplicable because the evidence showed that Carlos and Ronnie were in the house at the time of the shooting.
Section 654 precludes punishment for two crimes arising from a single course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) However, violent crimes against multiple victims may be separately punished. (People v. Miller (1977) 18 Cal.3d 873, 885, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048.) The trial court has wide discretion to determine the applicability of section 654. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) There were two other people in the house at the time of the shooting. Thus, substantial evidence supported the trial courts determination that there were multiple victims and section 654 did not apply. There was no abuse of discretion.
Cumulative Error
Appellant claims that he was prejudiced by cumulative error. The evidence of appellants guilt was strong, and the two errors we identified did not prejudice him. It is not reasonably probable that the trier of fact would have reached a different result had the errors not occurred.
Correction of Abstract of Judgment
At sentencing, the trial court imposed a single security fee of $20. Section 1465.8, subdivision (a)(1) requires the imposition of a $20 court security fee on every conviction. The prosecution argues that the abstract of judgment should therefore be corrected to reflect the imposition of four security fees, one for each count. Appellant has not opposed this request.
Disposition
The trial court is directed to correct the abstract of judgment to reflect the imposition of a $20 security fee for each of the five convictions. As modified, the judgment is affirmed.
We concur:
YEGAN, Acting P.J.
PERREN, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise stated.