Opinion
C081632
05-16-2017
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ANTHONY SOTO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F04834)
A jury convicted defendant Vincent Anthony Soto of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and found true the allegation the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also convicted defendant of simple assault. (§ 240.) During the same trial, a separate jury convicted codefendant Andres Christian Lopez of assault by means of force likely to produce great bodily injury, found true the allegation the offense was committed for the benefit of a criminal street gang, and convicted him of simple assault. The trial court sentenced defendant to serve five years in prison, and imposed various fines and fees.
Undesignated statutory citations are to the Penal Code.
Because the codefendant, victim, and victim's family share the surname, Lopez, we refer to these individuals by their first names after their first introduction. --------
On appeal, defendant raises a single issue. He contends he received constitutionally deficient legal representation because his trial attorney did not object to the admission of video recorded evidence of his participation in a Norteño gang attack on an inmate in jail that occurred while he was awaiting trial.
We conclude defendant's trial attorney was not ineffective because the evidence was relevant and admissible to prove defendant committed the charged offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence of Attack on Daniel and Eddie Lopez
As a result of his participation in the Sureño criminal street gang, Daniel Lopez was in state prison from the time he was 17 until his mid-20s. In prison, he had a "big LA symbol [tattooed] on the back of [his] head." After being released from prison, Daniel changed his life for the better. Even though he became a family man, his tattoo continued to give him problems when rival gang members saw it. Although he would try to explain he no longer had anything to do with gangs, some rival gang members nonetheless would get into conflict with him.
On the evening of July 27, 2013, Daniel and his family went to the house of his brother, Eddie Lopez. Eddie's house is located in Sacramento County. Daniel and Eddie planned to do some barbecue cooking and have a few beers. Daniel was intoxicated because he had already drunk a few beers at a wedding they had attended earlier that day. At some point that night, Daniel was standing outside and talking on his cell phone.
A group of 10 to 15 young men came up to Daniel and called him a "scrap." Daniel understood the term to be a derogatory reference to a gang member. Daniel responded, "I ain't no scrap." Daniel thought to himself, "I hope they don't mess with me. I'm trying to hang out with my family. I got my kids out here." Some of the young men had weapons, including a chain and a baseball bat. One of the men, later identified as codefendant Andres, was on a bicycle and "he was probably the biggest problem out of the group, one with the biggest mouth." Daniel believed the men were up to no good. He attempted to explain he was not a gang member and they had the wrong house.
The group advanced on Daniel and started punching him. Daniel fought back and made Andres fall over his bike. Daniel lost track of exactly who was hitting him.
Eddie saw the attack commence and ran out of his house with a baseball bat, yelling, "Get the fuck out of here." The crowd looked spooked. Eddie then got "sucker punched" in the right side of his face by defendant. That punch knocked Eddie unconscious. Daniel recognized defendant as the person who had hit Eddie. When Eddie became conscious again, he saw Daniel fighting defendant and Andres. Daniel tried to help Eddie up and started getting hit from behind.
Andres advanced on the brothers while brandishing a long, shiny, sharp knife. Suddenly, Daniel yelled out that he had been stabbed. Daniel said he could not breathe. Andres started running at Daniel's and Eddie's wives with the knife.
Defendant was lying on the ground, badly beaten. Andres jumped on his bicycle, fell down, and then got up and rode away.
Daniel suffered multiple stab wounds - including one that punctured his lung and nearly killed him.
Gang Evidence
City of Galt Police Detective Jose Ramirez testified as an expert on criminal street gangs. Detective Ramirez testified the Norteños and Sureños are rival criminal street gangs. In Galt, Varrio Ghost Town is the dominant subset of the Norteños and Varrio Krooks Town is the dominant subset of the Sureños. As predicate acts for the Varrio Ghost Town criminal street gang in Galt, Detective Ramirez testified gang member Adrian Ponce was convicted of assault with great bodily injury with a gang enhancement, gang member Joel Anaya was convicted of assault after he fired a gun at Sureño gang members, and gang member Thomas Cruz was convicted of a drive-by shooting with a gang enhancement.
Detective Ramirez further testified it was his opinion defendant was an active Varrio Ghost Town member at the time of the attack on Daniel and Eddie. Presented with hypothetical facts similar to this case, Detective Ramirez opined a group assault that included members of a criminal street gang on a person believed to be a rival gang member would be done for the benefit of the criminal street gang "increasing their turf and solidifying their gang area." The attack would also increase the status of the gang by instilling fear in others.
City of Galt Police Detective Kyle Slater testified he validated defendant as a member of Varrio Ghost Town. The basis for Detective Slater's validation was the following: In 2007, defendant admitted to being a Norteño associate, was wearing Norteño gang colors, and fought with a Sureño gang associate. In June 2009, defendant was contacted in the presence of another validated Varrio Ghost Town member. During the contact, defendant again admitted being a Norteño gang associate, and had spray-painted a gang-related symbol on the ground. In February 2012, defendant was contacted in the presence of two other validated Varrio Ghost Town gang members. Detective Slater searched Facebook and found defendant in a photo with a validated Varrio Ghost Town member. In the photo, defendant was "holding a G with his hand" in a manner commonly associated with Varrio Ghost Town.
Evidence Regarding Defendant's In-custody Gang-related Violence
Sacramento County Sheriff's Department Deputy Josh Langensiepen testified about gang culture in the prison system. Deputy Langensiepen explained Nuestra Familia prison gang members are the highest ranking Norteño members in the prison system. Nuestra Familia gang members communicate in prison with the use of "huelas." Huelas are micro-scrolls about 12 inches in length and no more than an inch in width that "contain all kinds of vital information," including a listing of all Norteños in custody. Sometimes huelas list inmates on the "Bad News Lists" who are no longer in good standing with their gang. And some huelas give authorization to commit a "removal," i.e., an assault on identified individuals.
Deputy Langensiepen testified it was his opinion defendant was an active Varrio Ghost Town member in the custodial setting. Deputy Langensiepen based his opinion in part on defendant's participation in a "removal" - a coordinated attack by four or five Norteño gang members on a fellow inmate, Anthony Arroyo. Arroyo claimed to be part of a rival gang, the 4th Avenue Blood. During the attack, defendant ran over to hit and kick Arroyo several times after Arroyo fell to the ground. Defendant then stepped away to conceal himself. After the assault, Deputy Langensiepen conducted an investigation. During an interview, defendant "disclosed to deputies that he, while he was in custody, he associated, involved himself -- involved himself in Norteño politics; and while he was out of custody, he involved himself with people from Varrio Ghost Town Norteños." Defendant's participation in the attack on Arroyo "absolutely" would have elevated his status within the Norteño gang.
A video recording of the attack was played for defendant's jury without objection from defendant's trial attorney. Sacramento County Sheriff's Deputy Fernando Ruotolo narrated as the video was played for the jury. An inmate, Hodges, was identified as the "shot caller for the Norteños" and the two "channels" were defendant and inmate Marez. Defendant was the channel for the upstairs portion of the correctional facility's pod. A channel is "a Norteño who is in charge of making sure instructions or directives are carried out." Deputy Ruotolo stated that "the only people who can participate in this assault are Norteños. No one else. No one else can participate in this assault." A search of inmate Anthony Sewell's cell revealed a handwritten letter documenting, for Norteño gang purposes, the occurrence of the assault on Arroyo.
A search of defendant's cell revealed "drawings of an Aztec warrior with Aztec numerology, symbology for the number 14, which is significant for Norteño gang members." The day after the assault, defendant was interviewed by Sacramento County Sheriff's Deputy Farishta Jamil. Defendant admitted participating in the assault on Arroyo. Defendant also stated, "he's from the City of Galt and he hangs out with some Varrio Ghost Town Norteños when he is not in custody." And defendant acknowledged the attack on Arroyo "looked like a removal."
Defense Evidence
Defendant's trial attorney called as witnesses the wives of Daniel and Eddie to elicit evidence they never saw Eddie unconscious on the ground during the attack. Defense counsel also cross-examined Eddie to elicit testimony that he had not been knocked unconscious. However, on redirect, Eddie testified he had been knocked out.
DISCUSSION
Admission of Evidence Defendant Participated in an In-custody Norteño Gang Attack
on a Rival Gang Member
Defendant contends the trial court erred in admitting evidence he participated in an in-custody Norteño gang attack on a rival gang member. However, defendant's trial attorney did not object to the introduction of this evidence. For lack of objection, defendant argues he received ineffective assistance of counsel. Accordingly, we review the claimed error through the lens of defendant's constitutional right to the effective assistance of counsel. We conclude there was no evidentiary error and therefore no ineffective assistance of counsel.
A.
Review of Claims of Evidentiary Error
As the California Supreme Court has explained, "Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Alvarez [(1996)] 14 Cal.4th [155,] 201; accord, People v. Rowland (1992) 4 Cal.4th 238, 264.) Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. (E.g., People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Clair [(1992)] 2 Cal.4th [629,] 670-671.) That is because it so examines the underlying determination as to relevance itself. (E.g., People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Rowland, supra, 4 Cal.4th at p. 264.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)" (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
However, "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' Pursuant to this statute, ' "[the Supreme Court has] consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21, quoting People v. Partida (2005) 37 Cal.4th 428, 433-434.) "[T]he rule that a challenge to the admission of evidence is not preserved for appeal unless a specific and timely objection was made below stems from long-standing statutory and common law principles." (People v. Anderson (2001) 25 Cal.4th 543, 586.)
Here, defendant's trial attorney did not object to the admission of the evidence regarding defendant's participation in the Norteño gang attack on another inmate. Thus, the evidentiary claim is forfeited. Anticipating forfeiture, defendant asserts he received ineffective assistance of counsel for lack of an evidentiary objection. "To establish ineffective assistance of counsel, defendant must show that '(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.' " (People v. Johnson (2015) 60 Cal.4th 966, 980, quoting People v. Scott (1997) 15 Cal.4th 1188, 1211.) With these principles in mind, we turn to defendant's claims of evidentiary error.
B.
Relevance of the In-custody Gang Attack Evidence
As with other types of evidence, evidence of gang membership is admissible if it is relevant to a charged offense or sentence enhancement allegation, and is not more prejudicial than probative or merely cumulative to other evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224 (Albarran).)
"California courts have long recognized the potential prejudicial effect of gang evidence. As a result, our Supreme Court has condemned the introduction of such evidence 'if only tangentially relevant, given its highly inflammatory impact.' (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because gang evidence creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, 'trial courts should carefully scrutinize such evidence before admitting it.' (People v. Williams (1997) 16 Cal.4th 153, 193.)
"Nonetheless, evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1049; Evid. Code, §§ 210, 351.)
"Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. (See, e.g., People v. Frausto (1982) 135 Cal.App.3d 129, 140 [motive].) ' "[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' " (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168, quoting People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550, fn. omitted.)
Here, the prosecution alleged defendant committed felony assaults on Daniel and Eddie for the benefit of a criminal street gang. Subdivision (b)(1) of section 186.22 provides that "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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ." As the Supreme Court has observed, "Not every crime committed by gang members is related to a gang." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) Thus, the prosecution bears the burden of proving a charged felony was committed for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members. (Id. at pp. 59-66.)
The prosecution's burden to prove defendant's commission of the charged felonies for the benefit of a criminal street gang rendered evidence regarding his participation in the Norteño gang relevant. Defendant does not dispute the relevance of claims he made, prior to the attack on Daniel and Eddie, that he associated with Norteños. And defendant does not challenge the relevance of evidence he spray-painted a carpet with Norteño graffiti or that he was photographed displaying a gang sign. Instead, defendant argues only that evidence regarding his participation in an in-custody Norteño gang attack on another inmate was not relevant. We reject the argument.
The evidence defendant acted as Norteño channel during the in-custody attack was relevant to prove both that he was a member of the Norteño gang and committed violent offenses for the benefit of the gang. Both the in-custody attack and the prior assault on Daniel and Eddie showed defendant participated in violence coordinated by Norteño gang members. Combined with evidence violence by gang members increased both their standing within the gang and the gang's infamy within the surrounding community, the video recording of the in-custody attack was directly relevant to proving the gang enhancement with which defendant was charged. As the Albillar court noted, "if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (51 Cal.4th at p. 68.) Thus, the challenged gang evidence was relevant.
We reject defendant's argument the in-custody gang-related evidence was inadmissible simply because it occurred after commission of the charged felony assaults on Daniel and Eddie. Defendant cites no authority for the proposition evidence regarding events immediately after commission of a crime is irrelevant. To the contrary, evidence of a defendant's conduct after commission of a crime can be relevant and admissible. For example, it is well established that flight after a crime can be relied upon to prove consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055.) Defendant even cites additional circumstances in which post-crime conduct is relevant to establish elements of the charged offense. (See, e.g., People v. Abilez (2007) 41 Cal.4th 472, 506 [evidence showing defendant offered robbery-murder victim's stolen items for sale was "relevant circumstantial evidence of his intent at the time of the murder"].) Here, defendant's subsequent uncharged offense was relevant to proving his commission of an earlier charged offense was for the benefit of a criminal street gang. We reject defendant's proposed rule of evidence that would render irrelevant evidence regarding circumstances occurring after commission of the charged offense.
C.
Evidence Code Section 352
Defendant also contends the in-custody gang attack evidence was unduly prejudicial. " 'Under Evidence Code section 352, a court may in its discretion exclude evidence if the probative value of the evidence is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or mislead the jury.' (People v. Blair (1979) 25 Cal.3d 640, 664; People v. Lassell (1980) 108 Cal.App.3d 720, 724; People v. Guillebeau (1980) 107 Cal.App.3d 531, 549.) Probative value depends upon the degree of the relevancy, materiality and necessity of the evidence sought to be introduced. (People v. Schader (1969) 71 Cal.2d 761, 774; People v. Stanley (1967) 67 Cal.2d 812, 818.) 'Evidence Code section 352 vests the court with broad discretion to weigh the prejudicial effect of proffered evidence against its probative value.' " (People v. Mota (1981) 115 Cal.App.3d 227, 234, quoting People v. Pierce (1979) 24 Cal.3d 199, 211.) We review a trial court's ruling under Evidence Code section 352 for abuse of discretion and will not reverse "in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." (Avitia, supra, 127 Cal.App.4th at p. 193.)
The trial court did not abuse its discretion in admitting the evidence of the in-custody Norteño gang attack in which defendant participated. The evidence was directly relevant to prove defendant's membership in the Norteño gang and his active participation in gang violence for the benefit of the gang. The in-custody gang evidence was not unduly inflammatory. The in-custody gang attack evidence was no more incendiary than the evidence of the charged assaults on Daniel and Eddie for which the jury heard directly from the victims about the assault and its impact. Daniel told the jury he was attacked even though he professed he did not want any trouble. He nearly died as a result of the assault, and the jury viewed graphic evidence of his bloody stab wounds. The jury also heard evidence defendant had twice previously claimed to associate with Norteño gang members and had spray-painted Norteño gang graffiti. The in-custody gang evidence was not unduly prejudicial.
We reject defendant's reliance on Albarran, supra, 149 Cal.App.4th 214. Albarran involved an attempted murder and shooting at an inhabited dwelling for which there was no evidence the offense was committed for the benefit of a gang. The shooters did not announce their presence or purpose, no gang members claimed involvement, and the investigating police officer testified he did not know the reason for the shooting. (Id. at p. 227.) By contrast, the assault in this case was immediately preceded by use of a derogatory reference to a rival gang. And Daniel appears to have been targeted for the gang violence due to his large tattoo that suggested membership in a rival gang. Unlike Albarran, the evidence in this case showed the assault on Daniel and Eddie was gang related from the start.
In short, the trial court properly admitted relevant and nonprejudicial evidence of defendant's participation in the Norteño-coordinated in-custody gang attack on another inmate. Because the evidence was properly admitted, defendant did not receive ineffective assistance of counsel due to the lack of objection to the evidence regarding the in-custody attack.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
NICHOLSON, Acting P. J. /s/_________
BUTZ, J.