Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. BA323521 Charlaine F. Olmedo, Judge
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant Charlotte Pleytez.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant Lombardo Palacios.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
We affirm Charlotte Pleytez’s and Lombardo Palacios’s convictions for first degree murder, with gang and firearm use enhancements. We reject Pleytez’s contention that an out-of-court identification of her was unduly suggestive. We also reject Palacios’s arguments that the court erred in excluding evidence, the gang enhancement was not supported by substantial evidence, and that his sentence constituted cruel and/or unusual punishment.
FACTS
On March 28, 2007, at approximately 10:20 p.m., Hector Flores and his fiancée L.B. were driving to visit Flores’s mother. They stopped across the street from a 99¢ Only Store parking lot, where Flores sold a small piece of crack cocaine to “Sinbad.” As Flores made the sale, a white car was parked on the other side of the street. Flores and L.B. drove away after the sale.
About 15 minutes later, L.B. and Flores returned to the 99¢ Only Store. The white car was still parked nearby. The front passenger in the white car waived at L.B. The driver, a Hispanic woman with a reddish tint in her hair, turned the car around and pulled up alongside Flores’s vehicle. The white car stopped about two feet from Flores’s vehicle. The driver smiled at L.B. The passenger spoke to Flores. L.B. heard the passenger use the word “fence” and heard Flores say that he was not there “for no [sic] trouble.” The conversation between Flores and the passenger lasted about a minute.
The passenger exited the white vehicle, walked up to Flores’s vehicle and shot Flores and L.B. through the window. A bullet hit L.B. in her right shoulder; she recovered from the gunshot wound. Flores was hit several times and died of multiple gunshot wounds.
L.B. identified Pleytez as the driver and Palacios as the shooter. L.B. identified Palacios from a six-pack photographic lineup (six-pack), tentatively identified his picture in a “mug book” and later again identified his photograph. When she was in the hospital recovering from her gunshot wound, L.B. provided a description of Pleytez allowing a sketch artist to draw a picture of Pleytez. When shown six-packs of females that did not include Pleytez, L.B. did not identify anyone. L.B. identified Pleytez’s picture in a book containing pictures of White Fence gang members including Pleytez and one other woman. When she identified Pleytez, she reported that Pleytez had tinted her hair red since the picture had been taken. After receiving that information, officers confirmed that Pleytez’s hair had a reddish tint. Elizabeth and Janet, two eyewitnesses who were in the 99¢ Only Store parking lot, identified Pleytez as the driver of the white vehicle and Palacios as the shooter. Janet was more certain of her identification than Elizabeth. Both L.B. and Janet identified Pleytez and Palacios in court.
The record is not entirely clear, but the parties agree that Elizabeth and Janet selected appellants’ photographs in a six-pack. Elizabeth stated that she was not sure of her photographic identification, but the picture of Pleytez stood out the most. In court, she also was “not sure” of her identification. At the preliminary hearing, Elizabeth stated that Pleytez “looked like” the driver. Janet stated that she was positive when she identified the driver in the six-pack. She also was sure of her identification of Palacios in the six-pack. She was “pretty sure” of her in court identifications, and on cross-examination explained that meant she was 60 percent sure.
Pleytez and Palacios were members of the White Fence gang, which claimed territory around the 99¢ Only Store. Los Angeles Police Officer Darin Flores testified that White Fence gang members committed drug sales to make money and also were involved in murders, assaults with a deadly weapon, weapon sales, and vandalism. White Fence gang members would lose money if other people sold controlled substances in an area claimed by White Fence. Officer Flores explained that gangs use violence to enforce the boundaries of territory they claim. According to Officer Flores, the penalty for making a drug sale in White Fence gang territory without paying White Fence a portion of the sales could be death. In addition to Officer Flores’s testimony, Palacios drew a picture depicting the life of a White Fence gang member, which included a picture of a girl on top of a three-pound pile of marijuana and a picture of money dropping out of Palacios’s hand.
At trial, Pleytez testified in her defense. She denied being present at the 99¢ Only Store and denied knowing Palacios. She admitted being a member of the White Fence gang and acknowledged that her hair had been tinted red. She testified that a hardcore gang member is one who regularly commits crimes and that White Fence gang members committed crimes (although she denied knowing anyone specifically). Pleytez’s mother testified that officers had harassed her family in the past and she had complained about the harassment. Dr. Kathy Pezdek, a psychologist and professor, testified concerning factors affecting eyewitness identifications, including the amount of time an eyewitness sees a suspect, the lighting available at the scene, the amount of time that elapsed between the incident and the identification, and the eyewitness’s focus on a weapon. She also testified there exists only a weak relationship between the accuracy of eyewitness identifications and the witness’s confidence in the identification.
PROCEDURE
Pleytez and Palacios were charged with one count of murder and one count of attempted murder. It was further alleged that the crimes were committed for the benefit of a gang within the meaning of Penal Code section 186.22 and that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). According to the prosecution, during questioning by officers, Palacios admitted to being the shooter and identified Pleytez as the driver. The confession was not admitted in the joint trial.
Undesignated statutory citations are to the Penal Code.
Jurors found both appellants guilty of the first degree murder of Flores. The jury further found the alleged enhancements true. Jurors concluded appellants were not guilty of the attempted murder of L.B.
The court sentenced each appellant to 50 years to life in prison. The sentence consisted of a 25-year-to-life term for the murder and a second 25-years-to-life term for the section 12022.53, subdivisions (d) and (e)(1) enhancement. Appellants timely appealed.
DISCUSSION
1. L.B.’s Pretrial Identification of Pleytez
Pleytez challenges L.B.’s pretrial identification of her. We first provide additional background and then explain why her argument lacks merit.
A. Background
Fourteen days after the shooting, Officer Chris Gable showed L.B. a “mug book” containing pictures of White Fence gang members. The book had been assembled in chronological order from the date each gang member had been contacted by police officers. The book contained only two females, and Pleytez’s photograph had been placed on a page with five males, in a format similar to a six-pack. When L.B. saw Pleytez’s picture, she became extremely upset and stated that she was sure that the picture was of the driver of the white car.
The court admitted evidence of L.B.’s identification over objection. The court found the identification procedure was not unduly suggestive. The court found that L.B. “came across the photo of the female and said, ‘This is the driver.’ And prior to that, she gave a detailed enough description to at least have a composite done by an artist which is similar to... Ms. Pleytez.” The court also relied on the fact that when shown six-packs with only females that did not include Pleytez, L.B. did not identify anyone.
B. Analysis
“‘Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 698.) “[F]or a witness identification procedure to violate the due process clauses [of the state and federal Constitutions], the state must, at the threshold, improperly suggest something to the witness – i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa (1998) 19 Cal.4th 353, 413.) We assume for purposes of this appeal that the six-pack was unduly suggestive.
Even if an identification process is unduly suggestive, if the witness’s identification is nevertheless reliable, it is constitutionally sound. The remaining question therefore is whether L.B.’s identification was reliable. To determine whether a suggestive lineup is reliable, the relevant factors “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (Manson v. Brathwaite (1977) 432 U.S. 98, 114; see also People v. Johnson (1992) 3 Cal.4th 1183, 1216.)
Applying the foregoing factors, L.B.’s identification was reliable. L.B. had an opportunity to view the driver of the white car when the car pulled alongside Flores’s vehicle. The accuracy of L.B.’s description demonstrates her degree of attention. She was able to describe Pleytez to a sketch artist and correctly noted that Pleytez had a reddish tint in her hair at the time of the shooting even though the picture in the “mug book” did not reflect the coloring. As the trial court found, the fact that L.B. did not identify anyone in a six-pack that did not include Pleytez’s photograph also was probative of L.B.’s ability to recognize Pleytez. Additionally, only two weeks had passed between the shooting and L.B.’s identification. Pleytez has not demonstrated that the identification was unreliable under a totality of the circumstances. (See People v. Cunningham (2001) 25 Cal.4th 926, 990 [no substantial likelihood of misidentification when witness had opportunity to view defendant for several minutes, described defendant to police, and identified defendant in photographic lineup].)
2. Alleged Evidentiary Error
Palacios argues that the court erred in excluding evidence that Flores had cocaine in his blood at the time of his death. He argues that the evidence was relevant to impeach L.B. and to question her identification of him. He also argues that the exclusion of the evidence denied him an opportunity to present a defense. As we explain, his arguments lack merit.
L.B. testified that both she and Flores used cocaine, but that neither had smoked the day of the shooting. A toxicology report (not included in our record) apparently showed that Flores had cocaine in his system. When it excluded the evidence, the court incorrectly noted that L.B. had not testified about Flores’s use of cocaine on the day of the shooting (and the parties did not correct the court). The court found the toxicology report irrelevant.
Both counsel sought to admit this evidence. However, neither argued that the failure to admit the evidence amounted to a violation of the confrontation clause or deprived appellants of an opportunity to present a complete defense, federal grounds which were therefore forfeited. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10 [“An appellate contention that the erroneous admission or exclusion of evidence violated a constitutional right is not preserved in the absence of an objection on that ground below”].)
Even when L.B.’s testimony is properly considered, the evidence that Flores had cocaine in his system was properly excluded. Whether Flores had used cocaine on the day of the shooting was not probative of any material issue at trial. The principal question at trial was identification – whether Pleytez was the driver and Palacios the shooter. Flores’s toxicology sheds no light on that issue, and appellants identify no other material issue regarding how Flores’s toxicology is probative. Flores’s toxicology is irrelevant to L.B.’s toxicology, and Flores’s use of cocaine is not probative of L.B.’s ability to see and hear what transpired before, during, and after the shooting. Palacios’s claim that because Flores smoked cocaine, L.B. also smoked cocaine is mere speculation unsupported by any evidence.
The exclusion of evidence of Flores’s toxicology did not violate Palacios’s right to confront witnesses, a right which permits cross-examination. (People v. Wilson (2008) 44 Cal.4th 758, 793.) “‘Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citation.]” (Ibid.) Appellants had the opportunity to cross-examine L.B. extensively, and their Sixth Amendment right to confront the witnesses against them was not violated by the exclusion of irrelevant evidence.
Palacios’s reliance on Davis v. Alaska (1974) 415 U.S. 308 is misplaced. The issue in that case was “whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.” (Id. at p. 309.) In Alaska, the defendant sought to impeach the witness with information concerning the witness’s own background – his prior juvenile adjudications for two burglaries. (Id. at p. 311.) In contrast here, Palacios seeks to impeach L.B.’s ability to perceive with evidence of Flores’s toxicology.
For the same reason People v. Wilson, supra, 44 Cal.4th at pages 790-794, relied on by Palacios, is inapposite.
Palacios’s argument that the exclusion of the evidence prevented him from presenting a complete defense also lacks merit. It is based on a claim that the evidence could have served “as a foundation for expert testimony... on the effects of crack cocaine on the ability to perceive and recall, all of which would have undermined [L.B.’s] identification of appellant.” As previously explained, Flores’s use of cocaine was of no import to L.B.’s ability to perceive. Moreover, the court expressly permitted counsel to argue L.B. likely used cocaine on the day of the shooting. Pleytez’s counsel argued that L.B. had relapsed and that her testimony was not credible. Counsel also argued L.B. “was high. She was high on crack. I know that she said she wasn’t, but I think the evidence shows that she [had] a $40 a day habit.” Appellants were not prevented from presenting a defense.
3. Gang Enhancement
The jury found true the gang enhancement allegation, requiring it to conclude that a felony was “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....” (§ 186.22, subd. (b)(1).) A criminal street gang is defined, in 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” among other things the sale of a controlled substance. (Id., subds. (e) & (f).) “Primary activities” implies that one or more enumerated crime is the group’s “chief” or “principal” occupations. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
Palacios argues that the record lacks sufficient evidence of the primary activities of the White Fence gang. He also argues that even if there is sufficient evidence of the primary activities, there is insufficient evidence he had knowledge of the primary activities of the White Fence gang. We disagree.
A. Primary Activities
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
The record contains substantial evidence to support the finding that the sale of a controlled substance was a primary activity of the White Fence gang. Officer Flores, who spent four years working in the Hollywood gang unit, took reports and spoke to gang members, and other officers testified that White Fence gang members were involved in drug sales. He testified that the gang makes money by selling marijuana, cocaine, and crack cocaine. Officer Flores knew that several arrests had been made of White Fence gang members who were selling narcotics in territory claimed by White Fence. He learned this information both from gang members and from other officers. He also personally made at least three arrests of White Fence gang members for sales of marijuana near the 99¢ Only Store. In addition to Officer Flores’s testimony, there was also evidence that the present crime was committed to safeguard White Fence gang’s territory from others using it to sell controlled substances. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 323 [trier of fact may consider “the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes”].) The foregoing evidence was sufficient to support the jury finding that one of the primary activities of the White Fence gang was the sale of controlled substances. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108 [fact that expert left out word “primary” did not show record lacked substantial evidence of primary activities of gang].)
The evidence of Officer Flores’s personal arrests in addition to the evidence of other arrests for the sale of controlled substances distinguishes this case from In re Alexander L. (2007) 149 Cal.App.4th 605, in which the court found no substantial evidence that gang members had “‘consistently and repeatedly... committed criminal activity listed in the gang statute.’ [Citation.]” (Id. at p. 614.)
B. Knowledge of Primary Activities
Palacios’s argument that the record lacks evidence he was aware of the primary activities of the White Fence gang lacks merit. “[T]he evidence that allows a jury to find a felony was committed for the benefit of a gang within the meaning section 186.22, subdivision (b)(1) also typically supports a finding the defendant knew of the criminal activities of the gang.” (People v. Carr (2010) 190 Cal.App.4th 475, 488.) Here, Pleytez and Palacios admitted their gang membership to Officer Flores, and Officer Flores’s testimony summarized above demonstrated the importance of narcotics sales and violence to the White Fence gang. Pleytez testified that a hardcore gang member was “a person who is always committing crimes.” She was also certain that there were White Fence gang members who sell drugs. Palacios drew a picture that included several representations of a fence, the year the White Fence gang began, and a girl sitting on a three-pound pile of marijuana. The picture also depicts Palacios with numerous White Fence tattoos and money falling from his hand. This evidence was sufficient for the jury to infer that appellants knew about the criminal activities of the White Fence gang.
4. Sentence
Palacios argues that his prison sentence of 50 years to life constitutes cruel and unusual punishment under the federal Constitution and cruel or unusual punishment under the state Constitution. He forfeited this argument by failing to raise it in the trial court. We nevertheless consider it to forestall an ineffective assistance of counsel claim. (See People v. Em (2009) 171 Cal.App.4th 964, 971-972, fn. 5.) As we explain, Palacios fails to show his sentence was unconstitutional under either the federal or state Constitutions.
A. Background
Palacios was 15 years old when he shot Flores. The probation report indicated that in 2006, a petition for possession of a loaded firearm on school grounds was dismissed. In 2007, a violation of a court order was dismissed when Palacios was charged with murder, and two petitions alleging that Palacios possessed a controlled substance were dismissed. The probation report also indicated that Pleytez and her boyfriend were the “shot callers” initiating Palacios into the gang by shooting Flores. The probation report stated that Palacios was an illegal alien and tried to strangle himself while he was in police custody. The probation report identified the following circumstances in aggravation: (1) the crime involved great violence and great bodily harm; and (2) the facts indicated premeditation. The following factor was noted in mitigation: Palacios has no prior record or an insignificant prior record.
B. Federal Constitution
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Palacios relies on distinctions between adult and juvenile offenders to argue that his sentence violates the Eighth Amendment.
In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the United States Supreme Court found that the imposition of the death penalty on a juvenile violated the Eighth Amendment’s proscription against cruel and unusual punishment. The court noted the differences between a juvenile and an adult offender. Juveniles are more likely than adults to lack maturity and a sense of responsibility. (Id. at p. 569.) Juveniles are more susceptible to negative influence and their character is not as well formed as an adult. (Id. at pp. 569-570.) The court emphasized the irresponsible conduct by juveniles is “‘not as morally reprehensible as that of an adult.’ [Citation.]” (Id. at p. 570.) The Supreme Court again relied on these differences in concluding that a juvenile offender cannot be sentenced to life in prison without the possibility of parole for a nonhomicidal offense. (Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011, 2026-2028].)
Notwithstanding the differences between a juvenile offender and an adult offender, the United States Supreme Court affirmed a sentence of life without the possibility of parole for an offender who had been convicted of murder, committed when he was 17 years old. (Roper, supra, 543 U.S. at p. 560.) The court held only that the death penalty could not be imposed on the juvenile offender. Thus, the distinction between a juvenile and an adult upon which Palacios relies does not show that his sentence, which is less than that upheld in Roper, violates the federal Constitution. (See People v. Demirdjian (2006) 144 Cal.App.4th 10, 14.) Other cases decided by the high court support this conclusion. (Hutto v. Davis (1982) 454 U.S. 370 [a term of 40 years for possession with intent to distribute and distribution of marijuana was not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 30-31 [sentence of 25 years to life for a recidivist criminal who stole three golf clubs was not cruel and unusual punishment].)
C. California Constitution
Palacios also argues that his sentence constitutes cruel or unusual punishment under article I section 17 of the California Constitution. Palacios emphasizes that he was ordered by his gang superiors to commit the offense and his suicide attempt reflects a vulnerable mental state. He also emphasizes the fact that he was an illegal alien at the time of the shooting. As a result, he concludes his sentence is grossly disproportionate to his culpability.
Under the state Constitution, a punishment may be cruel or unusual if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) To analyze this, a court considers the nature of the offense and the offender, and compares the punishments imposed within California for more serious offenses and in other jurisdictions for similar offenses. (Id. at pp. 425-428; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) With respect to the nature of the offense and nature of the offender, courts may consider the facts of the crime in question including the motive, the manner, the defendant’s involvement and the consequences as well as the facts of the offender, including his culpability, prior criminality and state of mind. (People v. Dillon (1983) 34 Cal.3d 441, 479.)
In challenging his sentence, Palacios relies only on the first part of the test, considering the nature of the offense and the offender. Considering the nature of the offense, “[t]here can be no dispute that murder is a serious crime....” (People v. Em, supra, 171 Cal.App.4th at p. 972.) And, imposition of a 25-year-to-life term for the firearm use enhancement under section 12022.53 has been repeatedly held constitutional. (People v. Martinez (1999) 76 Cal.App.4th 489, 495; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 18-19.) Considering the nature of the offender, Palacios’s age and status in the gang do not “negate the coldblooded nature” of his crime. (People v. Em, supra, at p. 975.) He walked up to Flores’s car and shot multiple times at close range, hitting both Flores and L.B. Palacios shot the gun himself even if it had been given to him by another gang member.
Although Palacios was young at the time he committed the murder and had an insignificant prior record, the fact that his crime was a murder “matters” when considering his sentence. (People v. Em, supra, 171 Cal.App.4th at p. 976.) Considering the circumstances of the crime, Palacios’s punishment is not so disproportionate to the crime for which it is inflicted that it shocks the conscience. (See ibid.; see also People v. Demirdjian, supra, 144 Cal.App.4th at p. 16 [upholding two consecutive sentences of 25 years to life for 15-year-old offender].) Palacios’s emphasis on his postarrest suicide attempt and immigration status is misplaced as those factors are not probative of the constitutionality of his sentence, and he cites no authority holding otherwise.
Each appellant sought to join in the arguments of the other. Pleytez’s argument, however, is not applicable to Palacios because it concerns only the identification of her. Palacios’s arguments are applicable to Pleytez except for his claim that his sentence constitutes cruel and unusual punishment; a claim that is dependent on characteristics unique to each defendant. When necessary, we have applied Palacios’s argument separately to Pleytez. As we find no error, we need not consider Palacios’s argument that cumulative prejudice requires reversal.
DISPOSITION
The judgments are affirmed.
We concur: BIGELOW, P. J., GRIMES, J.