Opinion
E064387
04-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO ARTURO RUIZ, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1303506) OPINION APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Alberto Arturo Ruiz was involved in a brawl, in which he knocked down one victim, and then assaulted him and two other victims with his car, before fleeing the scene. Defendant testified he thought he and his passenger were being threatened by gang members.
A jury convicted defendant of four counts of assault with a deadly weapon upon four different victims. (§§ 245, subd. (a)(1), 667 and 1192.7, subd. (c)(31).) Count 1 specially alleged that defendant inflicted great bodily injury, causing one victim to become comatose due to brain injury. (§ 12022.7, subd. (b).) The court sentenced defendant to an aggregate term of 11 years in prison.
All statutory references are to the Penal Code unless stated otherwise.
On appeal, defendant argues the trial court prejudicially erred by allowing gang evidence and by not giving an instruction on self-defense on counts 1, 2, and 3. We reject these contentions and affirm the judgment.
II
FACTUAL BACKGROUND
Prosecution's Evidence
On the morning of October 20, 2013, two brothers and their two adult sons visited the Pomona Swap Meet, where three of them drank beer all day. James Sr. did not consume alcohol because he was driving. The men left the swap meet between 5:00 and 6:00 p.m.
James Sr. began driving to Home Gardens to take home his brother, Richard M. A green car passed James Sr.'s truck, travelling at a high speed. The car crossed the railroad tracks and went airborne, landing in the truck's lane and almost hitting the truck. James Sr. flashed the truck lights and gestured with his hands. The green car pulled adjacent to the truck and defendant, the driver, made eye contact with the truck's occupants.
After the light turned green, defendant drove in front of the truck and blocked it. James Sr. and defendant exited their vehicles and confronted each other. Defendant yelled profanities and complained about the truck lights flashing and the men in the truck saying things to him.
James Sr. called for his nephew, Jon, to help him. Defendant called for help from his passenger. James Sr. and his nephew told defendant he should leave. James Jr. exited the truck.
Theresa C. was driving near the intersection of Lincoln Avenue and Magnolia Avenue when she saw a group of men "acting macho." Theresa C. watched as defendant and his passenger thrust their chests out and held their arms back. Theresa C. stopped and used her cell phone to record the confrontation.
As cars began to back up, Richard M. drove the truck across the intersection and parked it on the side of the road. Defendant rushed at James Jr. and kicked him, causing him to fall down unconscious. James Sr. and Richard M. picked up James Jr. to move him off the street. Theresa C. screamed when she saw defendant drive the green car and strike James Sr., James Jr., and Richard M.
Richard M. evaded defendant's car by dropping to the ground and rolling away but his knee was shattered and the action caused bulging disks in his spine. James Sr. was hit and lay on the ground unconscious with his leg bent abnormally. He was transported by ambulance to the hospital. He did not regain consciousness for five days. James Sr. still suffers pain, memory loss, and cognitive difficulties.
Theresa C. left her car and directed traffic around the three men. She held James Jr.'s head when he regained consciousness. James Jr. told a police officer one of the attackers had tattoos on his head and all over his body and one yelled out, "18th Street."
The green car's side view mirror was recovered at the scene. A few hours later and a few miles away in Home Gardens, police found the abandoned green car with a missing side view mirror and damage to its windshield.
Defendant and his passenger were longtime friends, once associated with the 18th Street criminal street gang in Los Angeles County. They both had multiple gang tattoos although defendant claimed they were no longer affiliated with the gang at the time of the incident.
Defense Evidence
Defendant testified he had stopped to get gas when he saw James Jr. vomiting out of the window of the truck on an off-ramp. When defendant tried to avoid the vomit hitting his car, the truck drove up to the adjacent left-turn lane and its occupants looked over and made hand gestures.
Everyone exited the vehicles. One of the truck occupants was shirtless, displaying tattoos on his stomach and chest. The tattooed man asked, "Where are you from?" The truck occupants also said, "Do you guys know where you're at?", "This is my town", and "This is Southside Rivas." Defendant believed the other men were active gang members, who were protecting their turf, and that the confrontation would become violent.
Defendant and James Sr. argued but then agreed they should mutually return to their vehicles and leave. James Jr., who had vomit on his chin, punched defendant in the chest. The fourth man, Jon, called out to defendant, assumed a fighting stance, displayed his tattoos, and punched defendant's collarbone. Jon pulled off defendant's shirt, revealing defendant's "L.A." tattoo on his left shoulder and "18" tattoo on his stomach. The men told defendant and his cohort they were in the wrong area and threw punches at them.
James Jr. was very drunk, spitting and slurring his speech, and in no condition to fight. James Jr. and defendant's passenger exchanged punches and James Jr. fell down. The other men tried to help James Jr.
Defendant had to block Jon's punches to enter his car. Defendant was distracted and nervous and trying to avoid the other men when he accelerated. Instead, the car struck the victims. Defendant drove off and parked the car a few blocks away. Defendant later turned himself in to the police.
Defense clinical forensic psychologist, Dr. Michael Kania, testified about how adrenaline causes a person to have a "fight or flight" response to a sudden perceived threat. Vision and hearing are affected. The person loses fine motor control but gains a strong muscular reaction. A person's ability accurately to recall and describe events is also affected.
Rebuttal
In rebuttal to Dr. Kania's testimony, Deputy Johnson testified about gang culture and the 18th Street criminal street gang. The deputy testified that gang members will respond to perceived disrespect with violence, or they risk losing the gang's reputation within the community. The display of gang tattoos shows support for the gang and intimidates other people. It is ingrained in criminal street gang culture that gang members cannot permit acts of disrespect to go unchallenged. Acts of disrespect like cutting off a driver, laughing, or spitting can require a violent response.
III
GANG EVIDENCE
Even though defendant claims he reacted violently to the victims because he thought he was facing a gang confrontation, defendant argues the evidence about gang culture was not relevant because defendant is not an active gang member. We conclude the trial court properly admitted testimony about how gang members respond to perceived disrespect to rebut Dr. Kania's expert testimony that defendant experienced a "fight or flight" response. The gang evidence was relevant both to the prosecution and the defense to show whether defendant acted with knowledge and intent in hitting the victims with his car.
In ruling on pretrial motions, the trial court commented that the gang evidence could be used to rebut the defense expert's testimony. The trial court noted that the issue was "not so much that the defendant is or is not a gang member." Instead the relevance was, "that the conduct that would be utilized in this particular incident could be viewed in a different fashion, in other words, not as an accident, but in regards to the way a gang member or a person affiliated with a gang might handle a situation like this, or why it might give rise to something other than accidental, given the argument it is an accident." The trial court reasoned that, if the jury was presented with evidence that the injuries were caused by accident due to a defendant's fight or flight physiological response, it could be properly rebutted with the relevant contrary explanation that defendant acted intentionally based on his past gang member experience. After a foundational hearing, the trial court ruled that Dr. Kania could testify as an expert witness. In rebuttal, Deputy Johnson testified about the concept of gang members violently responding to acts of "disrespect."
Gang expert testimony can be relevant to prove an element of a substantive crime if such testimony is "logically relevant to some material issue in the particular prosecution other than as character trait evidence." (People v. Ruiz (1998) 62 Cal.App.4th 234, 240; People v. Avitia (2005) 127 Cal.App.4th 185, 192, citing People v. Carter (2003) 30 Cal.4th 1166, 1194.) "Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran (2007) 149 Cal.App.4th 214, 224, citing Carter, at p. 1194.)
The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. (People v. Wallace (2008) 44 Cal.4th 1032, 1058; Evid. Code, § 210.) A trial court has broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) Such "discretion extends to the admission or exclusion of expert testimony." (People v. Richardson (2008) 43 Cal.4th 959, 1008.) The trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. (Evid. Code, § 352.) The statute "'uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' (People v. Farmer (1989) 47 Cal.3d 888, 912.)" (People v. Zapien (1993) 4 Cal.4th 929, 958.) This court reviews evidentiary rulings under an abuse of discretion standard. (People v. Linton (2013) 56 Cal.4th 1146, 1181; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772; People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Defendant was charged with assault with a deadly weapon, a general intent crime. (See People v. Golde (2008) 163 Cal.App.4th 101, 108.) The California Supreme Court, in People v. Williams (2001) 26 Cal.4th 779, held a defendant need not intend to harm the victim: "Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
California courts have held that, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Here, the defense advanced a theory that the "fight or flight" response so impaired defendant's senses and motor skills such that his driving the car and striking the victims was accidental. Therefore, the trial court properly allowed rebuttal evidence that defendant, who had a gang history, would knowingly and intentionally react violently against the men who had purportedly "disrespected" defendant and his cohort.
Albarran, relied upon by defendant, was "one of those rare and unusual occasions where the admission of [gang] evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (People v. Albarran, supra, 149 Cal.App.4th at p. 232.) Contrary to defendant's claim here, this case is not one of those rare and unusual occasions. Deputy Johnson's testimony regarding the concept of "respect" in the gang culture is distinguishable from the highly inflammatory and prejudicial evidence submitted in Albarran. There the proffered gang evidence included references to the Mexican Mafia, a threat to murder a police officer, and evidence of crimes by other gang members. The evidence had no connection to the underlying charges and was irrelevant. (Albarran, at p. 228.) In contrast, Deputy Johnson's testimony was relevant because defendant implicitly asserted he lacked intent and knowledge when he struck the victims with his car. The deputy's testimony established defendant may have acted based on a motive derived from gang culture. The testimony about respect and gangs was general and did not suggest defendant was a gang member, even though defendant himself asserted he was acting from fear of gang violence. Therefore, the rebuttal testimony was actually relevant to both the prosecution and the defense's theory of the case.
Finally, defendant argues that the admission of gang evidence was prejudicial under both the Chapman and Watson standards. Even if defendant could show the trial court erred by admitting the rebuttal expert witness's testimony, it is not reasonably probable an outcome more favorable to appellant would have resulted in the absence of the expert's testimony. (People v. Clark (2011) 52 Cal.4th 856, 940-941 [applying Watson standard of harmless error].) Here, the jury was instructed, based on CALCRIM No. 332, to "consider the [expert] opinions, but [the jury was] not required to accept them as true and correct." It also told the jury that it could "disregard any opinion that [it] find[s] unbelievable, unreasonable, or unsupported by the evidence." The jury is presumed to understand, follow, and apply these instructions. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229, disapproved on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Independent of the expert witness testimony, the jury was presented with substantial evidence that defendant used his car knowing and intending to injure the victims. Any error was harmless.
Chapman v. California (1967) 386 U.S. 18, 24 [state must prove that error did not contribute to the verdict]; People v. Watson (1956) 46 Cal.2d 818, 837 [error warrants reversal if it appears reasonably probable that a result more favorable to the defendant would have occurred absent the error].) --------
IV
SELF-DEFENSE
The trial court instructed the jury that the People had the burden of proving that defendant did not act in lawful self-defense only as to count 4—assault with a deadly weapon on Jon. Defendant contends the trial court erred by not instructing the jury on self-defense as to counts 1, 2 and 3 because evidence supported giving the instruction as to those counts and it was not inconsistent with the defense of accident. We disagree because the evidence did not support giving the self-defense instruction on counts 1, 2 and 3. Furthermore, defense counsel agreed that the self-defense instruction only applied to count 4, so he has forfeited this claim on appeal.
During the discussion on jury instructions, defense counsel requested that the jury be instructed with CALCRIM No. 3470 on the right to self-defense. The prosecutor argued that the defense of accident and self-defense were mutually exclusive. Defense counsel countered that defendant first said it was self-defense and later claimed it was an accident. The court commented that, other than Jon, posing a threat of harm by blocking entry to defendant's car, the other three victims did not pose any threat to defendant. A self-defense theory only applied to Jon and not the other victims. Both lawyers then agreed that the only possibility of self-defense existed as to Jon. The trial court and the lawyers then discussed and agreed the court would instruct the jury with CALCRIM No. 3404 on the defense of accident for all the counts and with CALCRIM No 3470 on the right to self-defense in count 4 only.
It is well-settled that "a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .'" (People v. Salas (2006) 37 Cal.4th 967, 982.) But if the evidence of the purported defense is minimal or insubstantial there is no duty to instruct. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
By agreeing the self-defense instruction only applied to count 4—assault with a deadly weapon upon Jon—defendant forfeited any claim that the trial court erred by not instructing the jury on self-defense as to counts 1, 2 and 3. (People v. Bolin (1998) 18 Cal.4th 297, 326 [forfeiture found where defense counsel did not object to an instruction and agreed that it be given].) When the trial court ultimately instructed the jury that self-defense applied only in count 4, defense counsel did not object.
Even if not forfeited, defendant's claim lacks merit. The trial court properly determined there was insufficient evidence presented to instruct the jury on self-defense regarding the other victims and counts. The evidence supported that Jon was on the only victim who may have threatened defendant by punching him to block entry to his car. Defendant's car struck the other three victims as two of them were trying to move one to safety. The evidence supported the trial court's conclusion, to which defense counsel agreed, that self-defense was not applicable to James Sr., James Jr., and Richard M. because those victims were not about to attack defendant when he hit them with his car. (People v. Barnett, supra, 17 Cal.4th at p. 1145.) The trial court did not have a duty to instruct the jury on self-defense as to counts 1, 2 or 3.
The trial court's failure to instruct on self-defense may be harmless if other aspects of the jury's verdict establish that the jury rejected the factual basis necessary for a finding of self-defense: "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646; People v. Turner (1990) 50 Cal.3d 668, 695 [no reasonable probability of error by not giving instruction that adversely affected the verdict].) Because the jury rejected self-defense and found defendant guilty on count 4, it necessarily rejected the factual basis necessary for self-defense. Any error was harmless under either the Chapman or Watson standard.
V
DISPOSITION
The trial court did not err in allowing gang evidence and in not giving a self-defense instruction on counts 1, 2, and 3.
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.