Opinion
F059451
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO RUIZ, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF170418B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
After a first jury trial ended in a mistrial, a second jury convicted appellant Jose Alfredo Ruiz of first degree murder committed by an active participant in a criminal street gang and carried out to further the activities of the gang, and perpetrated by means of discharging a firearm from a motor vehicle (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21) & (22); count 1), attempted premeditated murder (§§ 187, subd. (a), 664; counts 2 & 3), and discharging a firearm from a motor vehicle at another person (§ 12034, subd. (c); counts 4-6). The jury also found true criminal street gang and firearm use enhancements (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e), respectively) as to each count.
All statutory references are to the Penal Code.
Daniel Hernandez was jointly charged with, but tried separately from, appellant. His case is not before us on this appeal.
Appellant's motion for a new trial was denied, and he was sentenced to life in prison without the possibility of parole plus additional terms, and was ordered to pay restitution, fees, and fines. He filed a timely notice of appeal, and now raises various claims of error. For the reasons that follow, we will affirm the judgment in its entirety.
FACTS
I. Prosecution Evidence.
A. The shooting.
On the evening of September 12, 2006, 19-year-old Alejandro Ramos and his friends, David Stephen and 17-year-old Lorenzo Leon, walked to a market in Terra Bella and then headed back toward Stephen's house. As they walked, a two-door, green Thunderbird traveling on Avenue 96 caught Stephen's attention. He could hear faint music coming from the car.
All dates are in the year 2006 unless otherwise stated.
Ramos, Stephen, and Leon crossed Road 237 and continued walking eastbound on Camphor. At the time, they were walking on the sidewalk. Stephen saw the Thunderbird turn on Road 238 and then onto Camphor. It came toward them from the east and passed them, and the three moved off the sidewalk and into the street. Stephen could now hear the music better; it was by a group called PBC, which stood for "Proud By Choice."Ramos and Stephen heard someone in the car yell "Norte" as the vehicle passed them.
According to Stephen, a Southerner would not play PBC's music.
The car stopped 10 to 12 feet from the group. However, because Stephen had seen that Daniel Hernandez was driving and he knew Hernandez, it did not really mean anything to him.
It looked to Stephen as if there was also someone in the front passenger seat and three more people in the back. Ramos could not see how many people were inside the car, but he could see that Hernandez was driving. Although Ramos did not personally know Hernandez, the two attended the same high school.
Stephen and Leon walked toward the car. Stephen stopped near the taillights; Ramos was a few feet behind him. Leon walked up to the passenger window and looked inside. Stephen was going to walk up to the driver's side to tell Hernandez to leave Leon alone, because Stephen knew Leon and Hernandez had had problems before. Stephen saw Leon talking to Hernandez; Leon squatted down and lifted up his arms halfway and said, "Daniel, I thought you didn't bang." When he said that, Stephen saw a flash from the passenger's side and heard a gunshot, although he did not see a gun or anything extending through the car window. Leon grabbed his chest and fell back.
Ramos recalled remaining with Stephen where they were standing when the car stopped, and only Leon walking back to the vehicle. Leon said not to worry, that everything was all right.
Ramos took off running down Camphor, toward Stephen's house. At some point, he turned around and went back to Leon's location. The Thunderbird was gone. Stephen ran to some nearby apartments, as there were already police in the alley behind them. As he was running, he heard five or six more gunshots coming from the Thunderbird. Once, he turned around and looked, the front passenger was halfway out of the window, facing in Stephen and Ramos's direction. This was while Stephen was hearing the gunshots, although he was unable to see anything in the passenger's hands and did not recall seeing any flashes. The car looked like it was still parked, but after the gunshots were fired, it took off. Neither Stephen nor Ramos was hit.
Shortly after 10:00 p.m. on September 12, Tulare County Sheriff's Deputies O'Neill, Womack, and Giefer were in an alleyway just south of Camphor, between Roads 237 and 238, handling a disturbance call. At about 11 minutes after the hour, O'Neill heard a gunshot from Camphor. He immediately ran through an alleyway toward the street. As he did, he heard an additional four to five gunshots, and saw the reflection of muzzle flashes. Only a second or two elapsed between the first shot and the additional ones. Based on O'Neill's experience with firearms, he opined that all shots were fired from either the same handgun or identical guns containing identical loads. Giefer heard approximately five shots in succession. The shots sounded like they came from the same gun.
Stephen came from between two apartment buildings and ran toward the deputies. He yelled that he needed assistance, as his friend had been shot. Ramos came from behind the deputies. The deputies found Leon lying in the street with what appeared to be a single gunshot wound to the chest. Medical aid arrived almost immediately, but Leon was dead. No shell casings or bullets were found at the scene.
Leon died from a gunshot wound to the chest. The wound, which was front to back and approximately 20 degrees upward, would have been immediately incapacitating and death would have followed within minutes. A deformed bullet and bullet fragment were recovered from the body during the autopsy.
At approximately 11:06 p.m., firefighters were dispatched to a vehicle fire in the vicinity of Road 248 and Avenue 84 in Tulare County. Upon arrival, they found a fully engulfed Ford Thunderbird.
Meanwhile, Stephen gave a statement in which he named Hernandez as the driver of the car involved in the shooting. Tulare County Sheriff's Sergeant Hunt went to Hernandez's residence. Shortly after midnight, while Hunt was there, Hernandez and his brother pulled up in a red Chevrolet pickup. Hunt arrested Hernandez. A search of the residence revealed a bedroom in which were found a CD with "scrap music" handwritten on it, a number of items of red clothing, and a couple of 12-gauge shotgun shells.
Appellant's residence was searched later that morning. In the bedroom containing appellant's high school diploma were found two red bandannas and a red and black notebook. The notebook bore the name "Jose" and had "X4," "14," four small dots, "XIV," and "Norte" written in it. In dresser drawers in that bedroom was some .357-caliber ammunition, as well as some red sports shorts and a white shirt. The white shirt appeared to be dirty; it and the red shorts were rolled up underneath some folded clothes. Shoes collected with the clothes could not be excluded as possible contributors to a set of tracks found near the burned Thunderbird. A .357-caliber Smith and Wesson revolver was recovered from the closet. The gun, which would not eject shell casings, was not loaded; however, subsequent examination established that the bullet recovered from Leon's body was fired from this gun. Appellant was arrested later that day.
Gunshot residue kits were taken from both appellant and Hernandez on September 13. No gunshot residue was found. A finding of no gunshot residue particles is an inconclusive finding, because it is possible that (1) the person did not discharge a firearm, (2) the person discharged a firearm but had no gunshot residue particles deposited on the hands, or (3) the person discharged a firearm and particles were deposited, but they were removed by the time the sample was collected. Thus, for instance, if an individual took a shower after discharging a firearm, it would affect the results.
Following his arrest, appellant was interviewed by Sergeant Franks and Detective Shade. Appellant initially related that he had been working, then "some guy Danny from Terra Bella" called him to go do something, so appellant went to Danny's house in his car and they went "for a cruise" in appellant's white Nissan. Appellant did not bring a gun, but Danny did, and he kept showing it to appellant. As they were driving, they passed "some guy's house" and something was thrown at appellant's car. Finally, appellant dropped Danny off at Danny's house, and then appellant's girlfriend called appellant. Shortly after, Danny came to appellant's house with a couple of friends in a gray or green Thunderbird. They told appellant to come with them so that if they got into a fight, appellant could back them up. Appellant refused. Later, Danny returned with only one person on the passenger side, and left a gun and ammunition with appellant. Appellant had never seen the gun before, but he took it inside so his father would not find it. Later, he saw a flash and heard a boom about a block away.
The video and audio recordings of the interview were played for the jury.
Appellant denied "bang[ing]" (being involved with a gang). He claimed that the CD's with "Norte" on them belonged to his brother.
As the interview progressed, appellant admitted telling his father he was present, but not that he shot anybody. Appellant claimed, however, that he lied to his father and was not there. Instead, he was at home.
Eventually, appellant related that he did not know if Danny "bang[ed]," but when appellant and Danny went cruising, Danny was looking for some Sureno who shot him in the leg the previous year. Danny said he wanted to get back at them.
At approximately 8:00 p.m. on August 17, 2005, Deputy Guy was dispatched to a location near some railroad tracks in Terra Bella. There, he made contact with Hernandez, who had suffered a gunshot wound to the leg. Hernandez was wearing a red shirt.
Appellant related that Danny was looking for someone and told appellant to drive by some houses. There were "some guys" in the bushes in front of the house. This was by a trailer park behind the post office. Danny said not to go past there anymore because they might shoot, so appellant went into the trailer park and cruised around there. Danny then asked to be dropped off back at his own house. Appellant later stated that Danny told him that he had done the shooting.
Appellant subsequently said that Danny was the one telling appellant what to do. Before this happened, Danny would call appellant's cell phone a lot and leave messages, saying that somebody was trying to shoot him or that they threw something at his car. Danny would then try to pick up appellant, but appellant would say no. The night of the shooting, however, appellant picked Danny up and they went cruising in appellant's car. They saw the "guys" in the bushes, then Danny told appellant to go to Danny's house, because Danny needed to do something. Appellant refused.
Appellant later told the detectives that when the shooting occurred, he was driving the green Thunderbird. He had never seen the car before and did not know if it belonged to Danny. Danny was in the front passenger seat. A third male was in the car. He was seated behind Danny and was the person who had the gun. Danny had picked appellant up at appellant's house and had asked if appellant wanted to "do it." Appellant said no, but Danny kept showing appellant the gun. When appellant's father came outside, Danny left and went down the street. Danny subsequently returned and, when appellant again said he did not want to do anything, said they would not shoot anyone unless they tried to get crazy. Appellant still did not want to shoot anyone, although the Surenos had broken the window of his father's car a couple of months earlier because of appellant's brothers, and had shot at one of the brothers and burned down the house of the brother's girlfriend.
Danny waited for appellant down the street. Danny was driving and the other male was in the passenger seat, but when appellant appeared, this person moved to the back and Danny to the front passenger seat. Appellant knew they were going to try to do something, because they had gloves and they loaded the gun after he got into the car. Appellant reiterated that he did not want to do anything.
They were returning to his house when they passed the one street. The car was traveling west, and the other group was walking east in the street. One of them flipped off appellant's group, and a rock or something hit the car. Danny had his hand out of the window and he opened the door, then the person in the back seat pushed Danny and got out of the car. That person said "this is for Norte," and someone in the other group said "Southside" or "this is Southside." Appellant heard one shot, then more. Appellant was going to drive off, but Danny had hit the shifter when he opened the door, and so the car was in neutral. When the shooter heard appellant press on the gas pedal, he looked back and Danny told the shooter to give him the gun. The shooter dropped the gun, then ran after the other group. Danny told appellant to hold the gun for him and not to say anything, and Danny then drove appellant home.
The car was a two-door vehicle, and the person in the back seat pushed Danny to get the seat to go forward so he could get out.
At appellant's house, Danny put the gun by a tractor and then put a bandanna over it. Appellant told him not to leave it where appellant's father would see it, but Danny did not want to take it. He told appellant he would come back, then jumped in the car and started screaming at some men, who arrived at the same time as appellant and Danny, to follow him. Appellant ran back to get the gun to give it to Danny, but Danny left. At some point, appellant said he was going to take a shower and would see Danny some other day. Danny also said something about showering and his clothes and "a gun throws powder back." Appellant woke up his sister; they went outside and heard a big boom and saw a flash. Danny had taken the car and burned it. Appellant and his sister later drove in appellant's Nissan to look at the car on fire.
Appellant related that those in the other group tried to jump appellant a week or two earlier. They had a bat and almost hit him in the back of the head. Appellant said he did not "claim 'North'" anymore, having stopped doing so a couple of years earlier. He admitted, however, that if Northerners asked him to back them up in a fight with Surenos, he would do it. He would "box," but not shoot anyone.
After the conclusion of the interview, appellant was placed in a single cell at the jail so his telephone calls could be monitored and recorded. In one of the calls (a recording of which was played for the jury), appellant apologized to his parents and told them that he messed up.
On the evening of September 14, Tulare County Sheriff's Sergeant Velasquez contacted appellant at the jail to discuss what happened. After reminding appellant of his rights, which had been read to him by Franks, Velasquez explained that he was aware of the statements appellant had given Franks, and had also recently overheard some telephone calls that appellant made to his family and in which he said he had messed up.
Appellant, who would not agree to have his statement recorded, explained to Velasquez that he was a known Northerner, along with his friends. According to appellant, Southerners—specifically, the SSK and the SSD (South Side Ducor)—also lived in town, and Leon was South Side Ducor. Appellant had had issues with Southerners, and related that Hernandez had been shot in the leg, while appellant himself had been threatened at a gas station by two Southerners who had a knife. In addition, the windows of his brother's vehicle had been shot out, and the residence of one of his friends had been burned down. When Velasquez asked how this was pertinent to the shooting, appellant explained it was how "they" were when "they" were in town, and that Southerners were his enemies.
Asked about the night of the shooting, appellant related that he and Hernandez were together. Appellant was the driver of the vehicle, and Hernandez was the passenger. They passed a residence on a corner in Terra Bella; there were 10 to 12 Southerners in front of the house. On the first pass, a knife or other object was thrown at the vehicle. Appellant and Hernandez went back around; this time, the person who threw the knife had a shotgun. Appellant showed Velasquez how this person manipulated the weapon; appellant portrayed it as racking a round. Appellant said that as he and Hernandez left again, he heard someone say, "'it's all about the South Side' or 'it's all about the South.'"
Appellant related that he and Hernandez passed the house a third time, although he did not explain why they kept driving by it. This time, they exchanged seats, so that now Hernandez was the driver and appellant was the passenger. On the third pass, the person with the shotgun fired one round in the air. As appellant and Hernandez were leaving, appellant believed three more rounds were fired toward them, and appellant shot in the direction of the individuals.
At this point, Velasquez told appellant that he needed to put this on tape, and so Velasquez turned on the tape recorder he had with him. Appellant related some other instances of trouble between Southerners and him or members of his family. He also related that when Hernandez was shot in the leg, it was with a shotgun. Appellant said that on the third pass, the person with the shotgun fired toward the car. He was not very far away from appellant and Hernandez. Appellant denied shooting at him, and said he and Hernandez simply left. He heard six shots.
The recording was played for the jury.
B. The gang evidence.
At the time of the shooting, Ramos affiliated with Southerners, who were also known as Surenos. The gang liked the color blue and number 13. Northerners (Nortenos) were the enemy of Southerners. Northerners liked the color red and number 14. Ramos considered himself an associate, not an actual gang member. He did not know if Leon was affiliated with a gang. When he attended Porterville High School, Ramos "hung around" with the Southerners. Hernandez "hung around" with Northerners. Ramos did not know appellant or whether he was a Norteno.
Stephen was not affiliated with any particular gang, but associated with Southerners, some of whom considered themselves gang members. Leon did not affiliate with any gang, but simply "h[u]ng out" with Stephen and some of the people Stephen was with. Hernandez was a year ahead of Stephen when they attended high school together. As a freshman, Stephen associated with Southerners, while Hernandez associated with various people. After Hernandez was shot, however, he began associating more with Northerners. Appellant attended the same high school; he was a junior or senior when Stephen was a freshman. Appellant associated with Northerners. His nickname was "Dirty."
On the night of the shooting, Stephen was wearing a dark blue shirt and blue pants. Ramos was wearing blue pants and a white shirt, and had a blue shirt over his shoulder. Leon was wearing a blue T-shirt, blue belt, and tan pants, and had two blue bandannas in his pockets.
Each person being booked into the jail fills out an inmate classification questionnaire. According to jail records, Hernandez wrote "Northerners" in response to the question whether he associated with any street or prison gangs. In response to the question who his enemies were, Hernandez wrote "Surenos." Appellant was initially classified as a Northerner, as he wrote on his questionnaire that he associated with Norte and listed Surenos as his enemies. In November 2007, appellant was moved to a different facility and, as a result, reclassified. At some point, someone added "D/O" for "dropout" to the gang portion of his questionnaire.
On November 27, 2007, appellant was the victim of an assault with a deadly weapon in the recreation yard of one of the jail units that housed Northern gang members. Appellant told the investigating officer in part that he associated with Northerners both in and out of jail. As a result of the assault, appellant was removed from the unit. Prior to this time, appellant had been "programming" with the other Northerners inside the unit, meaning he had been following the program devised by the Northern hierarchy. He appeared to get along with the other Northerners. Someone who was not a Northerner would not have been able to last 14 months in that module. The assault consisted of appellant being cut on the cheek. That kind of mark may signify a snitch or someone who repeatedly fails to follow Northern rules.
Tulare County Sheriff's Detective Garcia, a member of the gang violence suppression unit, testified as an expert on gangs. Garcia described the traditional enmity between Nortenos (also known as Northerners or Norte, and, derogatorily, busters) and Surenos (also known as Southerners or Sur, and, derogatorily, scraps or scrappas), and their signs, symbols, and colors. He also gave his opinion concerning the primary activities of Northerners and that the gang had engaged in a pattern of criminal gang activity, and he described certain predicate offenses committed by members of the gang. He explained the place of firearms in gang culture, and the concept of backing up a fellow gang member. He also explained the importance of respect in gang culture.
In light of the issues raised on appeal, we omit many of the details of Garcia's testimony.
Appellant was not involved in any of these offenses, which were committed by members of various cliques that fell under the Northerner umbrella.
In light of everything he had reviewed concerning appellant and this case, Garcia opined that appellant was affiliated with the northern gang at the time Leon was shot, and that he was an active participant in the gang during Leon's murder. In response to a hypothetical question based on the evidence adduced at trial, Garcia further opined that the shooting of Leon was committed for the benefit of or in association with a northern gang. In Garcia's opinion, the shooting benefited the northern gang members, and they committed this crime to further their dominance and instill fear in their rival gang members, the Southerners. The crime also instilled fear in citizens living in and outside the area, by giving the gang notoriety. The crime was also committed in association with a northern gang, in that appellant had another Northerner with him, and so two northern gang members were out shooting at southern gang members. In Garcia's opinion, the shouting of "Norte" prior to the shot being fired was "like a business card being left at the crime scene." The perpetrators wanted their enemy and any witnesses to know who committed the crime. Word getting out that a Northerner killed a Southerner would elevate the Northerners' reputation as being violent, and that would benefit the gang. In Garcia's opinion, the murder of Leon qualified as gang activity, and was consistent with taking out a rival gang member.
II. Defense Evidence.
A. The shooting.
Appellant presented evidence of incidents of violence involving David Stephen. He also presented evidence it was dark at the location of the shooting.
Appellant testified that on the night of the shooting, Hernandez telephoned a little before 10:00 and invited appellant to go cruising. Appellant accepted. Someone— appellant believed it was one of Hernandez's cousins—was in the backseat, but appellant did not talk to him. All told, there were three people in the car. Hernandez was driving.
There are certain streets in Terra Bella where people cruise, and the three drove inside and around the trailer parks where a lot of people tended to congregate. Hernandez was not looking for anyone. They then saw a group walking down the street (not Camphor), probably on the way to the store. This group, which contained more than three but less than 10 or 12 individuals, included Leon, Stephen, and Ramos, whom appellant knew from school. Appellant did not know anyone else in the group, and did not have any problems with those three.
Appellant and Hernandez saw the group a second time. Appellant believed they were walking back to Stephen's house. Hernandez drove around the block, and said something about Leon. The car passed Leon's group, which was now walking on Camphor. Nobody in the car yelled anything. Appellant looked back, and somebody shot at his group. Hernandez stopped, and appellant saw Leon coming toward the car. Hernandez had a gun on the console, and appellant grabbed it and shot at the other group. Appellant believed he only shot two or three times. Leon's group shot back. Appellant saw two guns in this group of people.
The gun was already in Hernandez's car, loaded, when Hernandez and the other person picked appellant up. When appellant first saw the gun, it surprised him. Although it bothered him, he did not ask about it. Hernandez never said anything about killing someone and appellant did not know anything was going to happen. Nevertheless, at some time during the drive, appellant asked Hernandez to take him home, but Hernandez did not comply.
Appellant felt he was defending himself, as Leon's group shot first. Appellant saw Leon with a gun, although he was not sure what kind. It was dark, and appellant had no experience with shotguns or rifles. Appellant saw somebody—he believed it was Leon—with what appeared to be a shotgun, moving quickly toward the car. Someone in Leon's group fired, and appellant shot back. That was when Leon came out from behind a parked car. Appellant shot toward Leon, and everybody ran as appellant's group drove off.
Appellant, who was afraid of retaliation if he called the police or said anything, went home. Hernandez and the third person in the car left the gun at appellant's house, so he hid it in his room. Appellant did not see Hernandez anymore after that. Appellant went to see the car being burned because he wanted to give Hernandez the gun back. Appellant did not burn the car. He went alone to see it burning, then he went home, woke his sister, and told her to look. The flames could be seen from appellant's house. Appellant did not call the fire department because he thought it was none of his business. He fell asleep, and his father woke him up at around 3:00 the next morning, as they were scheduled to go to Los Angeles.
Appellant testified that most of what he told Franks and Shade was a lie. He explained that he had never been in trouble before and it was new to him, so he tried to get out of it by lying. When telling his parents he messed up, he meant that if he had stayed home, he would not be in jail. Appellant told Velasquez the truth; Velasquez interviewed him differently than Franks and Shade in that Velasquez was calmer, did not yell at him, and was more respectful.
B. The gang evidence.
Appellant denied being a Norteno gang member. He had multiple bandannas of various colors, not just the red and burgundy ones that were seized. One notebook that was seized belonged to his brother. The other notebook was from when appellant was 12 years old. It was in his mother's room. The red shorts that were found were not his.
With respect to the jail classification form, appellant filled out only one. A deputy was with him; when appellant said he supposedly had murdered someone, the deputy asked if appellant had murdered a "scrap." Appellant said no, but, when he came to the gang question and told the deputy he did not "bang anything," the deputy said appellant could get killed, because on the paperwork, it said the person killed was a Southerner. The deputy told appellant to put "Northerner" on the form and to put "south" for the question about enemies.
Appellant denied telling Velasquez that he was a known Northerner along with his friends. In reality, appellant told him that a lot of people knew appellant as a Northerner because of appellant's brother, who "backed up" the north, although he was not part of a gang. Appellant had no idea if Leon was South Side Ducor, a Southerner.
Albert Ochoa, who had over 26 years of experience with gangs, testified as an expert on the subject. In pertinent part, having reviewed materials related to this case, he opined that on the date of the shooting, appellant was not an active gang member, but associated with gang members due to his environment. Terra Bella and Porterville were "gang infested pretty much." Ochoa recognized that appellant admitted he was known as a Northerner, but explained that there was a difference between being known as one and being an active gang member.
Ochoa distinguished between gang affiliation and gang association. Someone with a gang affiliation was involved in a gang. Someone with a gang association was someone who associated with gang members because of his or her environment, such as residing in the same area or growing up together.
Ochoa did not feel the offenses were committed for the benefit of a criminal street gang. Based on Ochoa's experience in working with the gang culture, what happened was simply not classic gang activity or an incident that would occur as a result of two rival gangs confronting each other. In response to a hypothetical question based on the evidence adduced at trial, Ochoa opined that Surenos would not walk up to a Norteno car because of the possibility of a physical confrontation, but instead would try to avoid the car and walk away in the opposite direction. Under the circumstances, if the Surenos walked up to the car and spoke to its occupants, it would indicate they knew the people inside the car and were not enemies.
DISCUSSION
I. Voluntariness of Appellant's First Statement.
Appellant contends his first statement (the one given on September 13 to Franks and Shade) should have been excluded as involuntary. Although he was advised of and purportedly waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), he says, given the way Franks read him his rights and then commanded him to say "yes," the waiver was neither knowing and intelligent nor voluntary. Appellant maintains that because his first statement provided most of the evidence impeaching his credibility at trial, reversal is required.
A. Background.
Prior to trial, appellant moved to exclude his September 13 interview with Franks and Shade. In pertinent part, appellant contended that, when Franks told appellant that he had the right to remain silent and asked if appellant understood, Franks told appellant to just say yes, which appellant did. Appellant claimed Franks took advantage of appellant's youth, physical and mental exhaustion, and inexperience with the law in coercing him to speak about events. Appellant relied primarily on the following portion of the transcript of the interview:
"DET. FRANKS: Okay. Like I say, we need to talk to you about what happened last night. You obviously - since - since we've got you in like this, and I'm going to read you your rights. Okay. So I just need you to listen to me and then go ahead and answer each one, and then we'll talk, you'll explain to me afterwards.
"MR. RUIZ: Okay.
"DET. FRANKS: You have the right to remain silent.
"Do you understand? Just say yes.
"MR. RUIZ: Yes.
"DET. FRANKS: Anything you say may be used against you in court.
"Do you understand?
"MR. RUIZ: Yes.
"DET. FRANKS: You have the right to the presence of an attorney before and during questioning.
"Do you understand?
"MR. RUIZ: Yes.
"DET. FRANKS: If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.
"Do you understand that?
"MR. RUIZ: Yes.
"DET. FRANKS: Okay. With these rights in mind we'd like to talk to you about what happened last night.
"Do you want to talk to us about that?
"MR. RUIZ: Yeah." (Italics added.)
An evidentiary hearing was held. Franks testified that when he asked if appellant understood, appellant nodded affirmatively. Because the audio portion of the recording of the interview did not record a nod, Franks told appellant to just say yes.
The video recording of the interview was played for the court. Defense counsel asserted the video did not show that appellant nodded, and that Franks advised appellant—an 18-year-old who had been up all night and had never been arrested—of his right to remain silent and told him to say yes very quickly, almost as one statement.
The trial court denied the motion and ruled the evidence was admissible. In its formal written ruling, the court stated it had reviewed the relevant portions of the transcript of the interview, and had watched and listened to the relevant portions of the recording. It found the requisite Miranda warnings were given to appellant prior to the custodial interrogation, appellant expressly waived each of his rights, and appellant's subsequent conduct ratified his express waivers.
These proceedings took place before appellant's first trial. Appellant resubmitted his motion, and the trial court implicitly adopted its prior ruling, following the mistrial.
As described in the statement of facts, ante, the recording of the interview was admitted into evidence and played for the jury. Appellant subsequently testified that most of what he told Franks and Shade was a lie. After his conviction, he moved for a new trial, in part based on the trial court's refusal to exclude the interview. The motion was denied.
B. Analysis.
"Under the due process clauses of both the Fourteenth Amendment to the United States Constitution and article I, sections 7 and 15, of the California Constitution, these principles are established: an involuntary confession or admission is inadmissible; a statement is involuntary if it is the product of coercion or, more generally, 'overreaching'; involuntariness requires coercive activity on the part of the state or its agents; and such activity must be, as it were, the 'proximate cause' of the statement in question, and not merely a cause in fact. [Citation.]" (People v. Mickey (1991) 54 Cal.3d 612, 647.) "In assessing allegedly coercive police tactics, '[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.]" (People v. Smith (2007) 40 Cal.4th 483, 501.) "Under both state and federal law, courts apply a 'totality of circumstances' test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are '"the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health."' [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576.) "In determining whether a confession was voluntary, '[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" (Ibid.)
In addition, the Fifth Amendment to the United States Constitution guarantees that a suspect in a criminal case "may not be compelled to be a witness against himself in any respect." (Colorado v. Spring (1987) 479 U.S. 564, 574.) To implement this "prohibition against compelled self-incrimination" (People v. Mickey, supra, 54 Cal.3d at p. 647), the United States Supreme Court in Miranda devised the following "prophylactic" rule (Michigan v. Tucker (1974) 417 U.S. 433, 446): "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444.)
Article I, section 15 of the California Constitution contains the same guarantee.
"... Miranda holds that '[t]he defendant may waive effectuation' of the rights conveyed in the warnings 'provided the waiver is made voluntarily, knowingly and intelligently.' [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (Moran v. Burbine (1986) 475 U.S. 412, 421; see also People v. Smith, supra, 40 Cal.4th at pp. 501-502.) "... Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." (Moran v. Burbine, supra, at pp. 422-423, fn. omitted.)
"[A] suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. [Citation.]" (People v. Cruz (2008) 44 Cal.4th 636, 667; see North Carolina v. Butler (1979) 441 U.S. 369, 373.) "A valid waiver may be express or implied. [Citation.] Although it may not be inferred 'simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained' [citation], it may be inferred where 'the actions and words of the person interrogated' clearly imply it. [Citation.]" (People v. Cortes (1999) 71 Cal.App.4th 62, 69; see also North Carolina v. Butler, supra, 441 U.S. at p. 373.) As the United States Supreme Court recently stated, "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berghuis v. Thompkins (2010) 560 U.S. ______, ______[130 S.Ct. 2250, 2262]; see also People v. Cruz, supra, 44 Cal.4th at pp. 667-668 [suspect's expressed willingness to answer questions after acknowledging understanding of Miranda rights sufficient to constitute implied waiver of such rights].)
The prosecution has the burden of proving voluntariness, both of the defendant's statements and Miranda waiver, by a preponderance of the evidence. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169; Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "On appeal, we review independently the trial court's legal determinations of whether a defendant's statements were voluntary [citation], [and] whether his Miranda waivers were knowingly, intelligently, and voluntarily made [citation], ... [citation]. We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers, and '"accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence."' [Citations.]" (People v. Rundle, supra, at p. 115.)
Appellant contends he did not voluntarily waive his Miranda rights. He bases this claim, in large part, on an assertion that he did not nod affirmatively when Franks asked if he understood that he had the right to remain silent. We have viewed the pertinent portion of the videotape. It clearly shows appellant quickly and repeatedly nodding his head up and down—in other words, affirmatively—as Franks is asking if he understands. Franks is looking at appellant at the time, and his direction to appellant to "[j]ust say yes" follows "Do you understand?" almost immediately because appellant is nodding before Franks finishes asking the question. Substantial evidence thus supports the trial court's implicit determination that Franks's testimony, that he told appellant to say yes because the audio portion of the tape would not record a nod, was credible; hence, that finding is binding on us. (People v. Brewer (2000) 81 Cal.App.4th 442, 455.) The evidence does not support a conclusion appellant was coerced into saying "yes" to the requested waiver of his rights; rather, it amply demonstrates that he expressly affirmed his understanding of each of his rights and his desire to talk to the detectives about the shooting. He then proceeded to answer questions and make statements. This constituted a voluntary, albeit implied, waiver. (See People v. Whitson (1998) 17 Cal.4th 229, 247-248 & cases cited; People v. Sully (1991) 53 Cal.3d 1195, 1233.)
Appellant says, however, that the totality of the circumstances shows he could not have known he had the right to refuse to talk, or that having once begun talking, he had the right to invoke his Miranda rights at any time. Appellant points out that he was only 18 years old; had little prior experience with the criminal justice system, having suffered his only other arrest more than four years earlier; was outnumbered during the interview by two detectives, both of whom were older than appellant, took turns speaking, and occasionally switched seats; and that Franks had a very rapid and forceful way of speaking.
We reject appellant's claim. Appellant was legally an adult. He had attended high school, and the record does not suggest he had any trouble understanding or expressing himself in English, or that he lacked the capacity to understand the meaning of his rights and consequences of waiving those rights and giving a statement. He was not completely unfamiliar with the legal system, having previously been arrested, and the notion he was intimidated by Franks and felt as if it was two against one is conjecture that finds no support in the record. Indeed, it appears appellant attempted to use the situation to his own advantage by pretending to cooperate fully while adamantly insisting he was not lying. (See People v. Davis (1981) 29 Cal.3d 814, 825-826.) He engaged in a dialogue with the detectives, even arguing with them on occasion, belying any suggestion he was intimidated. The interview's location and duration, and the presence and movement of two detectives who were older and larger than appellant, are not enough under the circumstances to show coercive police activity or to render appellant's statement or waiver of rights involuntary. (See, e.g., Berghuis v. Thompkins, supra, 130 S.Ct. at p. 2263; People v. Leonard (2007) 40 Cal.4th 1370, 1403). Although the factors to which appellant points must be considered when a court evaluates the voluntariness of a confession or statement (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; In re Anthony J. (1980) 107 Cal.App.3d 962, 971-972), they do not militate against a finding of voluntariness in the present case (see, e.g., People v. Boyette (2002) 29 Cal.4th 381, 412; People v. Lewis (2001) 26 Cal.4th 334, 383-384).
An examination of the totality of the circumstances concerning appellant and the interview further causes us to reject appellant's claim that he could not have known he had the right to invoke his rights at any time. His rights were read to him one by one, in simple, everyday language. (See Florida v. Powell (2010) 559 U.S. ______, ______[130 S.Ct. 1195, 1204 [question is not precise formulation of warnings, but whether warnings reasonably would convey to suspect his or her rights as required by Miranda]; People v. Samayoa (1997) 15 Cal.4th 795, 830 [same].) The standard Miranda warnings "protect [a defendant's Fifth Amendment] privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time." (Colorado v. Spring, supra, 479 U.S. at p. 574, italics added.) Appellant had no right to be explicitly told that he had a continuing right to cut off questioning at any time. (People v. Castille (2005) 129 Cal.App.4th 863, 885-886 & fn. 9.) Appellant expressly stated he understood each of his rights and was willing to give a statement. This was sufficient to show a knowing and intelligent waiver by appellant of his rights. The lack of coercion and absence of evidence that his will was overborne sufficiently also show the waiver was voluntary. (See Colorado v. Spring, supra, 479 U.S. at pp. 574-575.)
We conclude, after independent review, that appellant's statement was legally obtained. Accordingly, it was properly admitted into evidence at trial.
Although we do not reach the question of prejudice, we note that in his discussion, appellant quotes People v. Allen (1992) 9 Cal.App.4th 1619 as stating the applicable test. That opinion was ordered depublished on December 31, 1992 (S029471), and therefore may not be cited.
II. Sufficiency of the Evidence.
Appellant contends that either count 2 or 3, and either count 5 or 6, must be reversed due to insufficient evidence he shot at both surviving victims. He also says the gang special circumstance and gang enhancements must be reversed due to insufficient evidence he intended solely to benefit or further the future criminal activities of his gang.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to enhancements and special circumstances as well as to substantive offenses (People v. Wilson (2008) 44 Cal.4th 758, 806 [enhancements]; People v. Ochoa (1998) 19 Cal.4th 353, 413-414 [special circumstances]).
A. Counts 2, 3, 5, and 6.
Counts 2 and 3 charged appellant with the attempted premeditated murder of David Stephen and Alejandro Ramos, respectively. Counts 5 and 6 charged appellant with discharging a firearm from a motor vehicle at Stephen and Ramos, respectively. Appellant was convicted on all four counts, but says the evidence was insufficient to prove he shot at both victims, since they ran in different directions when Leon was shot. Accordingly, he concludes, his convictions on the counts involving one victim or the other must be reversed.
We disagree. Appellant is correct that there was evidence Leon was shot first, then Stephen and Ramos ran in different directions. However, the jury reasonably could have concluded both were in the line of fire, however briefly, while appellant was shooting, and appellant shot at them both before they split up. For instance, Stephen testified that while he was running away, he turned around and looked back once. The passenger in Hernandez's car—inferentially, appellant—was halfway out the window and facing "our" direction. The passenger was in this position while Stephen was hearing the gunshots, even though Stephen did not recall seeing any muzzle flashes. In addition, appellant himself testified that he shot "at them." (Italics added.)
Although the evidence did not compel a finding appellant shot at both Stephen and Ramos, it was sufficient to permit a reasonable juror to conclude he did so. Accordingly, reversal is unwarranted. (See People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Gang allegations.
Detective Garcia, the prosecution's gang expert, testified that in his opinion, the shooting in this case benefitted the northern gang members, and that they committed this crime to further their dominance and instill fear in members of their rival gang, the Southerners. He also opined that the crime was committed in association with a northern gang, because two northern gang members were out shooting at southern gang members. In his further opinion, the principle that no disrespect goes unanswered, applied here.
Defense counsel questioned Garcia about an interview L.R. gave Detective Hunt on May 2, 2007. In that interview, which Garcia considered, L.R. related that she was Leon's girlfriend at the time of his death. She further related that Hernandez had been flirting with her and that, about a month before the shooting, he approached her, said he was attracted to her and wanted to date her, and said that if she did not call it off with Leon, he would shoot Leon. L.R.'s statement did not change Garcia's opinion, however, as the taking of a rival's girlfriend would be an ultimate sign of disrespect that would embarrass the rival in front of his fellow gang members.
Garcia acknowledged that someone could have more than one motive for murdering someone. In addition, there could be instances in which a known gang member could commit a violent crime and it would not benefit his gang. If a gang member wanted to establish a relationship with a woman and so he shot her boyfriend, the crime would be for his benefit, although it would still instill fear in the public. If being with the girl was the gang member's only motive for killing the boyfriend, however, Garcia could not see how the gang would benefit, unless the gang member shouted something prior to the shooting or was in association with another gang member at the time of the crime.
Defense counsel also questioned his own expert, Albert Ochoa, about the subject. In Ochoa's opinion, the shooting would not be gang-related because it would benefit the individual, not a gang. Although Ochoa agreed with the prosecutor that a person could have more than one motive for doing something, he did not see a dual motive in the shooting, even assuming the person yelled "Norte" right before shooting the Southerner in the chest. Although Ochoa took into consideration that Leon and the people walking with him were Southerners, and that appellant was with a Northerner (or at least a "wannabe"), Ochoa opined that the shooting did not benefit the gang, but rather was a personal vendetta between two people over a girlfriend.
Based on the purported existence of a non-gang-related motive for the shooting, appellant now contends the evidence was insufficient to sustain the jury's true findings on the gang special circumstance and enhancements. This is so, he says, because it failed to establish that he had the sole specific intent to benefit his criminal street gang, or to further or promote future criminal activity by his gang, when he shot Leon.
As a preliminary matter, we observe that a jealousy/love triangle reason for the shooting was never actually established. L.R. did not testify. The fact the experts considered her hearsay statement did not transform that statement into independent proof of any fact. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) "Hearsay relied upon by experts in formulating their opinions ... is not offered for the truth of the facts stated but merely as the basis for the expert's opinion. [Citations.]" (People v. Cooper (2007) 148 Cal.App.4th 731, 747; see also People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210 [discussing opinion testimony from gang experts].)
In any event, section 186.22, subdivision (b)(1) provides for imposition of a sentence enhancement upon "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 ...." (Italics added.) Section 190.2, subdivision (a)(22) provides for imposition of a sentence of death or life in prison without the possibility of parole where "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, ... and the murder was carried out to further the activities of the criminal street gang." (Italics added.) Nothing in either statute, including the emphasized portions, precludes their application if there were multiple purposes for the offense at issue, so long as one of the purposes was that specified by the statute. To read the statutes as narrowly as appellant does would be irrational in light of the broad reasons they were enacted.
Section 186.22, subdivision (b) is part of the Street Terrorism Enforcement and Prevention Act (STEP Act) (§ 186.20 et seq.), the express purpose of which is "to seek the eradication of criminal activity by street gangs" (§ 186.21; see People v. Gardeley (1996) 14 Cal.4th 605, 609). Subdivision (a)(22) of section 190.2 was enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. (People v. Shabazz (2006) 38 Cal.4th 55, 65.) "Proposition 21 was enacted to combat gang crime." (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 905.) The electorate's intent in enacting Proposition 21 was "to punish all gang crime more severely ...." (Id. at p. 907, italics added.)
Appellant relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 (Briceno). In those cases, the Ninth Circuit Court of Appeals took the position that the gang enhancement under section 186.22, subdivision (b) applies only when the defendant had the specific intent to facilitate gang members' criminal activity other than the charged crime. (Briceno, supra, at pp. 1078-1083; Garcia, supra, at pp. 1102-1103.)
We do not view these cases as suggesting a defendant cannot be held liable under section 186.22, subdivision (b) and, by analogy, section 190.2, subdivision (a)(22), if he or she possessed multiple simultaneous intents and purposes. Moreover, the California Supreme Court has rejected the federal court's statutory interpretation. In People v. Albillar (2010) 51 Cal.4th 47 (Albillar), the state high court recognized that, in subdivision (b) of section 186.22, "the Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the STEP Act only if the crime is "gang related."' [Citation.] Not every crime committed by gang members is related to a gang." (Albillar, supra, 51 Cal.4th at p. 60.) Because the evidence showed the defendants actively assisted each other in committing the charged crimes, and their common gang membership ensured they could rely on each other in committing the crimes and that they would benefit from committing them together, the court found substantial evidence the defendants "came together as gang members to attack [the victim] and, thus, that they committed these crimes in association with the gang. [Citations.]" (Id. at p. 62.)
With respect to the enhancement's specific intent requirement, the court rejected the argument that the crime must be committed with the specific intent to promote, further, or assist other criminal conduct by gang members, and instead agreed with the People that section 186.22, subdivision (b) requires the specific intent to promote, further or assist in any criminal conduct by gang members, including the current offense(s). (Albillar, supra, 51 Cal.4th at pp. 64-65.) The court expressly spurned the Garcia-Briceno interpretation of the statute. (Id. at pp. 65-66.) The court further rejected the notion that the statute requires the specific intent to promote, further, or assist a gang-related crime or a gang; "the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Id. at p. 67.)
The requirement of section 190.2, subdivision (a)(22), that the murder must have been "carried out to further the activities of the criminal street gang," "substantially parallels the language of section 186.22, subdivision (b)(1) ...." (People v. Carr (2010) 190 Cal.App.4th 475, 488.) We do not see any reason to interpret the two statutes differently on the point at issue in appellant's case, and appellant suggests none.
The Ninth Circuit Court of Appeals has recognized that in Albillar, the California Supreme Court "has overruled Briceno and Garcia's interpretation of section 186.22(b)(1)." (Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1215.) As a result, the federal court now follows California's interpretation of the statute. (See id. at pp. 1215-1216.)
Under Albillar's reading of section 186.22, subdivision (b), an offense is subject to increased punishment only if the crime is gang related, not if the crime is only gang related. That there is a practical, and not merely semantic, difference between the two is clear, as Albillar presents a classic case of multiple simultaneous intents or purposes. There, the three defendants lived together and were members of the same family and same gang. One of them took a female acquaintance into the bedroom, where he began to kiss and undress her. When the other two defendants opened the bedroom door and asked to join in, the girl refused and yelled at them to get out, but they paid her no heed. All three defendants then forcibly sexually assaulted her. (Albillar, supra, 51 Cal.4th at pp. 51-53.) Nothing in the Supreme Court's opinion remotely suggests the gang enhancement was invalid because, as seems obvious, the defendants' purpose in committing the acts included obtaining sexual gratification.
Appellant says, however, that there is state law in support of his position that in order for the gang special circumstance and enhancements to be upheld, the evidence must show he committed the crimes solely at the direction of, or to benefit, his criminal street gang, or solely to further the activities of the gang. As authority, he relies on People v. Ramirez (2009) 172 Cal.App.4th 1018. However, that case was ordered depublished on July 8, 2009 (S173336), and so may not be cited.
Appellant's opening brief was filed on November 8, 2010.
Appellant also cites a case from this court, People v. Ramon (2009) 175 Cal.App.4th 843. In that case, the People's gang expert relied on the fact that the defendants were gang members in their gang's territory. From these two facts, along with the crime the defendants were accused of committing, the expert opined that the crime was committed for the benefit of the gang and was intended to promote that gang. (Id. at p. 849.) On appeal, we found insufficient evidence to uphold the gang enhancement. (Id. at pp. 851-852.) Appellant seems to suggest we did so because the possibility the crimes were committed to benefit the gang was only one conceivable scenario, and mere possibilities are not substantial evidence. To the extent our holding might be so summarized, it does not support appellant's claim the evidence is insufficient if it shows the existence of dual intents or purposes. Rather, we concluded that "[t]he People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding." (Id. at p. 851.) Because "[t]he facts on which [the expert] based his testimony were insufficient to permit him to construct an opinion about [the defendant's] specific intent in this case," that opinion could not "constitute substantial evidence to support the jury's finding on the gang enhancement." (Id. at p. 852.) Such was not the situation in appellant's case.
The gang evidence in the present case is set out at length, ante, and we need not repeat it here. Although gang members can jointly commit crimes that have nothing to do with the gang (Albillar, supra, 51 Cal.4th at p. 62), here the evidence at most showed multiple simultaneous intents and purposes. A rational juror easily could have found the crimes in this case did indeed have something to do with gangs, especially given the evidence that "Norte" was yelled just before Leon was killed, and that even the purported love triangle was not free of gang connotations.
Reversal on the ground of insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the gang enhancements and special circumstance].' [Citation.]" (People v. Bolin, supra, 18 Cal.4th at p. 331.) The evidence presented at appellant's trial was more than adequate. Appellant's argument to the contrary fails.
III. Jury Instructions.
Pursuant to CALCRIM No. 370, jurors were instructed: "[The] People are not required to prove that defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may, however, consider whether Mr. Ruiz had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." Appellant did not object or request clarification or amplification. He now says, however, that because motive is an element of the gang enhancements and gang special circumstance alleged in this case, the trial court erred by failing to instruct the jury that CALCRIM No. 370 did not apply to those allegations. Since CALCRIM No. 370 contradicted CALCRIM Nos. 736 and 1401, the argument runs, appellant's constitutional right to due process was violated.
Pursuant to CALCRIM No. 736, jurors were told that in order to prove the special circumstance of committing murder while an active participant in a criminal street gang, the People had to prove, inter alia, "the murder was carried out to further the activities of the criminal street gang." Pursuant to CALCRIM No. 1401, jurors were told that in order to prove the enhancement that the felony was committed for the benefit of a criminal street gang, the People had to prove, in pertinent part, that "the defendant committed or attempted to commit the crime for the benefit of, at the direction of or in association with a criminal street gang; and ... the defendant intended to assist, further or promote criminal conduct by gang members."
In light of appellant's argument that motive is an element of the gang enhancements and special circumstance, we reject respondent's assertion that appellant forfeited his claim by failing to raise it below. (§ 1259; see People v. Hillhouse (2002) 27 Cal.4th 469, 503.) However, we disagree with appellant on the merits.
"Motive is the emotional urge that induces a particular act. It is different from intent, for a person may intend to steal property, or to injure or kill another, and will be guilty of the crime regardless of his or her motive (e.g., need, avarice, revenge, jealousy, fear). [Citation.]" (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 4, p. 202, italics added.)
As appellant acknowledges, we rejected an argument almost identical to his in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes). There, the defendant claimed CALCRIM No. 370 "conflicted with the instructions for the substantive offense of criminal street gang participation and the sentence-enhancement and special circumstance provisions related to criminal street gangs and lessened the prosecution's burden of proof on those issues" because, "although each of [those] instructions required a finding that he had an intent to further gang activity, the motive instruction contradicted this, telling the jury it did not have to make that finding." (Id. at p. 1139.) We disagreed, explaining:
"An intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. Fuentes claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error.
"If Fuentes's argument has a superficial attractiveness, it is because of the commonsense concept of a motive. Any reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing a murder: A wish to kill the victim was a reason for the shooting, and a wish
to further gang activity stood behind that reason. The jury instructions given here, however, were well adapted to cope with the situation. By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror.
"People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127, on which Fuentes relies, [as does appellant,] does not conflict with what we have said. Maurer held that the standard motive instruction was erroneous when given in conjunction with an instruction on section 647.6, which prescribes punishment for '[e]very person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child' where the conduct would be an offense if the other person really were a child. Since this offense includes a 'motivation' as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant's motive. Due to this peculiarity in the definition of the offense ..., the combination of instructions could not successfully tell the jury where to cut off the chain of reasons for the defendant's action which the prosecution had to prove. If section 647.6 referred to, say, persons acting 'with an intent to gratify an unnatural or abnormal sexual interest in children' instead of a motivation, the standard motive instruction would have been no more problematic than it is here." (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
Appellant says Fuentes was wrong and asks us to reconsider it. We decline to do so. We find its analysis both dispositive of appellant's claim and fully supported by the California Supreme Court's opinions in People v. Cash (2002) 28 Cal.4th 703, 738-739 and People v. Hillhouse, supra, 27 Cal.4th at pages 503-504, as well as the Court of Appeal's opinion in People v. Lynn (1984) 159 Cal.App.3d 715, 727-728. Moreover, there is no reasonable likelihood appellant's jury understood CALCRIM No. 370 as appellant now asserts. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1321; see People v. Rogers (2006) 39 Cal.4th 826, 873.) Other instructions given drew a clear distinction between mental state or specific intent, and motive. Jurors expressed no confusion concerning these concepts. In addition, as given, CALCRIM No. 370 expressly referred to the "crimes charged." "'[A]ny reasonable juror would have understood the instruction as referring to [the] substantive offense[s] only and not to any special circumstance [or enhancement] allegation.'" (People v. Noguera (1992) 4 Cal.4th 599, 637; see also People v. Heishman (1988) 45 Cal.3d 147, 178.)
IV. Sentencing.
A. Constitutionality of "Drive-By" special circumstance.
Appellant mounts an "unconstitutional-as-applied" challenge to the special circumstance established by section 190.2, subdivision (a)(21), which requires that "[t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death." He complains that the jury was permitted to use the same facts to establish both first degree murder and the special circumstance. As a result, he says, there was no meaningful basis upon which the jury could distinguish the factual findings necessary for a verdict of first degree murder, from those necessary for a true finding on the special circumstance. The special circumstance therefore did not narrow the class of persons eligible for the death penalty, as required by the Eighth Amendment to the United States Constitution. Although appellant's argument is not a model of clarity, respondent interprets it as also asserting the special circumstance is unconstitutionally overinclusive.
Under section 189, "any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree."
Jurors were instructed that the People were proceeding on two theories of first degree murder: premeditation and discharge of a firearm from a motor vehicle. With respect to the latter theory, the trial court instructed that the People had to prove three things: "One, he [appellant] shot a firearm from a motor vehicle; two, he intentionally shot at a person who was outside the vehicle; and three, he intended to kill that person."
Jurors were further instructed that there were two special circumstances: discharge of a firearm from a motor vehicle pursuant to section 190.2, subdivision (a)(21), and killing by a gang member pursuant to section 190.2, subdivision (a)(22). As to the former, the trial court instructed that the People must prove: "One, the defendant shot a firearm from a motor vehicle killing Lorenzo Leon; two, the defendant intentionally shot at a person who was outside the vehicle; and, three, at the time of the shooting, the defendant intended to kill."
In light of the nature of the issues raised by appellant, we decline to find them forfeited by virtue of appellant's failure to raise them in the trial court. (See In re Sheena K. (2007) 40 Cal.4th 875, 888; People v. Smith (2001) 24 Cal.4th 849, 852.)
Since we have rejected appellant's claims of error with respect to the gang special circumstance (§ 190.2, subd. (a)(22)), ante, any impropriety with respect to the drive-by special circumstance cannot possibly have harmed appellant. Once a single special circumstance allegation was found true, imposition of a sentence of life in prison without the possibility of parole was mandatory. (§ 190.2, subd. (a).) In any event, as appellant acknowledges, the California Supreme Court has consistently rejected his claims. (See, e.g., People v. Williams (2010) 49 Cal.4th 405, 469 [section 190.2 is not impermissibly overbroad in violation of the federal Constitution; number of special circumstances is not so high as to fail to perform constitutionally required narrowing function; special circumstances are not overinclusive, either on facially or as interpreted by California Supreme Court]; People v. Abilez (2007) 41 Cal.4th 472, 528 [double counting charged felonies—once to elevate degree of homicide to first degree murder and again to render defendant eligible for death penalty—is permissible]; People v. Kennedy (2005) 36 Cal.4th 595, 640 [same], disapproved on another ground in People v. Williams, supra, 49 Cal.4th at p. 459; People v. Pollock (2004) 32 Cal.4th 1153, 1195 [statutory special circumstances adequately narrow class of persons subject to death penalty]; People v. Catlin (2001) 26 Cal.4th 81, 158 [Eighth Amendment is not offended where first degree murder liability and special circumstance findings are based on common elements]; People v. Lewis (2001) 25 Cal.4th 610, 676 [California's death penalty sufficiently narrows class of death-eligible defendants]; People v. Jenkins (2000) 22 Cal.4th 900, 1050 [special circumstances set forth in section 190.2 are not overinclusive by number or terms and have not been construed in unduly expansive manner]; People v. Marshall (1990) 50 Cal.3d 907, 945-946 [triple use of same facts—to support conviction for first degree murder on theory of felony murder, finding of felony-murder special circumstance, and imposition of death penalty—does not violate federal Constitution]; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 241-246 [rejecting challenge to death sentence on ground that sole aggravating circumstance found by jury at sentencing phase was identical to element of capital crime of which defendant was convicted]; People v. Rodriguez (1998) 66 Cal.App.4th 157, 163-164, 172-174 [upholding constitutionality of section 190.2, subdivision (a)(21) against claims it impermissibly duplicates elements that elevated homicide to first degree murder and that it is overbroad and permits excessive sentence for possibly unpremeditated murder].)
We are bound to follow the pronouncements of our state's high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject appellant's claims.
B. Imposition of parole revocation restitution fine.
On count 1, the trial court sentenced appellant to life in prison without the possibility of parole (LWOP) for the murder plus 25 years to life for the firearm use enhancement. On counts 2 and 3, the court sentenced him to life in prison with the possibility of parole for the attempted murder plus 25 years to life for the firearm use enhancement on each count, and ordered sentence on all counts to run consecutively. On counts 4, 5, and 6, the court sentenced appellant to five years for the discharge of a firearm from a motor vehicle at another person plus 25 years to life for the firearm use enhancement plus 10 years for the gang enhancement on each count, but ordered the terms to run concurrently. In pertinent part, the court ordered appellant to pay a restitution fine in the amount of $10,000 pursuant to section 1202.4 and a parole revocation restitution fine in the same amount pursuant to section 1202.45, but ordered the latter fine suspended.
Appellant says that because his sentence included a term of life without parole, the parole revocation restitution fine should be stricken. Relying on People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), respondent disagrees, because, in addition to the LWOP term, appellant's sentence included an indeterminate term of 75 years to life, which technically would render him eligible for parole. Appellant seeks to distinguish Brasure on the basis that his sentence does not include any determinate terms that were not ordered to run concurrently. Although as a practical matter it will not make the slightest bit of difference to appellant, we conclude the fine was properly imposed and suspended, albeit for somewhat different reasons than that propounded by respondent.
Section 1202.45 provides, in pertinent part: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall ... assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine ... shall be suspended unless the person's parole is revoked." A "case," for purposes of section 1202.45, is "a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number." (People v. Soria (2010) 48 Cal.4th 58, 64-65.)
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), the defendant was sentenced, on count 1, to an indeterminate term for second degree murder plus an additional four-year term for a firearm use enhancement. On count 2, he was sentenced to LWOP plus 10 years, for first-degree special-circumstance murder with a firearm use enhancement. Although the trial court imposed a restitution fine pursuant to section 1202.4, the People claimed its omission of the section 1202.45 fine constituted error. The defendant agreed that if the fine applied to him, the trial court had a jurisdictional duty to impose it. He argued section 1202.45 did not apply, however, because he received a sentence of LWOP. The Court of Appeal agreed. (Oganesyan, supra, at pp. 1181-1182.)
The appellate court found the issue to be one of statutory interpretation, subject to the standard principles of review applicable to such matters. (Oganesyan, supra, 70 Cal.App.4th at pp. 1182-1183.) Applying those principles, the court concluded: "The issue of whether section 1202.45 applies when only a sentence of life imprisonment without possibility of parole is imposed is the easiest to resolve. When there is no parole eligibility, the fine is clearly not applicable. The statutory language itself is clear, the additional restitution fine is only imposed in a 'case' where a sentence has been imposed which includes a 'period of parole.' [Citation.] Simply stated, the ... legislative intent which can be derived from the language of the statute is clear; if there is no parole eligibility, no section 1202.45 fine may be imposed." (Id. at p. 1183.)
The appellate court observed that in the case before it, however, there were two sentences, under one of which (15 years to life for second degree murder plus the additional firearm use enhancement) the defendant conceivably could be eligible for parole. Nevertheless, it rejected the People's argument that this therefore was a case in which a sentence had been imposed that included a period of parole. (Oganesyan, supra, 70 Cal.App.4th at pp. 1183-1184.) The court reasoned: "[T]he language of section 1202.45 indicates that the overall sentence is the indicator of whether the additional restitution fine is to be imposed. Section 1202.45 indicates that it is applicable to a 'person ... whose sentence includes a period of parole.' At present, defendant's 'sentence' does not allow for parole. When we apply a commonsense interpretation to the language of section 1202.45 [citations], we conclude that because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed." (Id. at p. 1185.)
In Brasure, supra, 42 Cal.4th 1037, the trial court sentenced the defendant to death on count 1, stayed execution of sentence on four other counts pursuant to section 654, and imposed an aggregate determinate prison term of two years eight months on the remaining counts. (Brasure, at p. 1049.) The California Supreme Court disagreed with the defendant's claim the parole revocation fine imposed but suspended under section 1202.45 was unauthorized. The court stated:
"... Defendant here, in addition to his death sentence, was sentenced (for counts 5, 6, 7, 9, 10, 11 & 12) to a determinate prison term under section 1170. Section 3000, subdivision (a)(1) provides that such a term 'shall include a period of parole.' Section 1202.45, in turn, requires assessment of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' The fine was therefore required, though by statute and the court's order it was suspended unless and until defendant was released on parole and his parole was revoked. [Citation.]
"[Oganesyan], upon which defendant relies, is distinguishable as involving no determinate term of imprisonment imposed under section 1170, but rather a sentence of life without the possibility of parole for first degree special circumstance murder and an indeterminate life sentence for second degree murder. [Citation.] As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked." (Brasure, supra, 42 Cal.4th at p. 1075.)
We find ourselves perplexed by the manner in which Brasure distinguished Oganesyan, and its lack of discussion of Oganesyan's reliance on the overall sentence as the indicator of whether a section 1202.45 fine is to be imposed. Within the context of section 1202.45, either a sentence does not include a period of parole if at least one component precludes parole (as in Oganesyan), or we consider the sentence components individually (as in Brasure). If the sentence components are considered individually, it seems logical that there should be no difference between a sentence of life with the possibility of parole and a determinate term. The literal language of section 1202.45 would appear to apply to each, and section 3000, subdivision (a)(1) specifies that both determinate and indeterminate sentences are to include a period of parole unless waived or otherwise specified.
Section 3000, subdivision (a)(1) provides, in pertinent part: "The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship.... A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, or as otherwise provided in this article."
Nevertheless, the California Supreme Court has drawn a distinction between indeterminate sentences with the possibility of parole and determinate terms (Brasure, supra, 42 Cal.4th at p. 1075), and we are bound by its conclusion (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). Under Brasure and Oganesyan, appellant was not subject to a section 1202.45 fine on count 1 because his sentence thereon did not include a period of parole, or on counts 2 and 3 because he was sentenced thereon to indeterminate terms.
Respondent argues the fine was properly imposed under Brasure because appellant also received a sentence of 75 years to life. As we have just explained, however, Brasure distinguishes between determinate and indeterminate sentences, and 75 years to life is, as respondent recognizes, an indeterminate term. Moreover, appellant's 75-years-to-life term comprises three 25-years-to-life enhancements imposed pursuant to section 12022.53, subdivisions (d) and (e). "[E]nhancements are not convictions. [Citations.]" (People v. Manning (1992) 5 Cal.App.4th 88, 91.) They "do not define a crime but merely impose an additional punishment to that which accompanies the criminal offense itself. [Citation.]" (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; see Cal. Rules of Court, rule 4.405(3).) They cannot be imposed "separately from the underlying crime." (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.) Thus, in appellant's case, the firearm use enhancements "were not separate crimes and cannot stand alone. Each one is dependent upon and necessarily attached to its underlying felony." (Id. at p. 1311.) Just as a felony and its attendant enhancement cannot be separated so that, for instance, a concurrent term may be imposed for one while a consecutive term is imposed for the other (ibid.; accord, People v. Bui (2011) 192 Cal.App.4th 1002, 1016), so too they cannot be separated so that a period of parole is included in a sentence by virtue of the enhancement when parole is precluded by the conviction itself (see People v. Jenkins (2006) 140 Cal.App.4th 805, 809, 819).
Appellant says he is serving "a wholly indeterminate term"; hence, the section 1202.45 fine must be stricken. He acknowledges determinate sentences were imposed on counts 4, 5, and 6, but in essence says this does not matter since those terms were ordered to run concurrently with the indeterminate terms on counts 1, 2, and 3.
We disagree. Had the sentences imposed on counts 4, 5, and 6 been stayed pursuant to section 654, then a section 1202.45 fine could not have been imposed based on those counts. This is so because "[s]ection 654 when applicable precludes punishment 'under' more than one criminal provision." (People v. Miller (1977) 18 Cal.3d 873, 887, overruled on another ground in People v. King (1993) 5 Cal.4th 59, 79, as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.) Generally speaking, and as applicable here, a defendant may not be "disadvantaged in any way as a result of the stayed convictions"; those convictions may not be used "for any punitive purpose" if sentence thereon was stayed. (People v. Pearson (1986) 42 Cal.3d 351, 361.) As a result, section 654 applies to stay a parole revocation restitution fine if such a fine is punitive in nature. (See People v. Sharret (2011) 191 Cal.App.4th 859, 865.) Since restitution fines are punishment (People v. Hanson (2000) 23 Cal.4th 355, 361-362), it follows that so are parole revocation restitution fines. Accordingly, a parole revocation restitution fine may not be based on a sentence that has been stayed pursuant to section 654. (See People v. McWhorter (2009) 47 Cal.4th 318, 324, 380; Brasure, supra, 42 Cal.4th at pp. 1049, 1075; People v. Carr (2010) 190 Cal.App.4th 475, 482 & fn. 6; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1074-1075, 1097; cf. People v. Le (2006) 136 Cal.App.4th 925, 934.)
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
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A term that is ordered to run concurrently is treated differently than a term that is stayed pursuant to section 654, however. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) Where a concurrent term has been imposed, "the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously." (People v. Miller, supra, 18 Cal.3d at p. 887.) This being the case, appellant here was sentenced to a determinate term that, under Brasure's interpretation of section 1202.45, included a period of parole. Accordingly, the parole revocation restitution fine was properly imposed and suspended.
DISPOSITION
The judgment is affirmed.
LEVY, J.
WE CONCUR:
WISEMAN, Acting P. J.
KANE, J.