Opinion
B205545.
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. HECTOR RUBEN TORRES, Defendant and Appellant.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be published in Official Reports
Appellant Hector Ruben Torres appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with special circumstance findings, shooting from a vehicle, and possession of a firearm by a felon, with gang and firearm use findings. Appellant contends that comments made by the trial court and defense counsel during voir dire contaminated the jury with an anti-gang bias. He further contends that insufficient evidence supports the jurys finding on the gang murder special circumstance allegation. We find no impropriety in the trial courts remarks during voir dire, but agree that the evidence did not support the special circumstance.
FACTS
On October 27, 2005, 13-year-old O.M. had been a member of the Florencia 13 gang for about two months. He went to a house on East 59th Place that served as a "hangout" for Florencia 13 gang members to socialize. At some point, appellant arrived. Appellant was 30 years old. O.M. had never met appellant, but he had seen him before and knew that appellant was a member of the 64th Street clique of the Florencia 13 gang. O.M. did not think appellant held the respected status of an "O.G." O.M. saw appellant spray paint some graffiti on the sidewalk outside the house on East 59th Place. Appellant did not "hang out" with O.M., but was drinking with four other older members of the gang and one neighbor.
At some point, appellant approached O.M. and said they were going to go get beer. O.M. hesitated, but other people told him to go. Appellant drove his red Blazer and O.M. sat in the front passenger seat. Appellant drove to a neighborhood that was outside the territory claimed by Florencia 13. Appellant paused for about 20 seconds near a teenaged boy and his mother who were outside in front of a house, then appellant drove on.
Appellant stopped again in front of a house where Humberto Nava and his 16-year-old nephew Mark Hernandez were standing on opposite sides of a car parked at the curb. Appellant asked them where they were from. Someone said "38th Street," which was a gang rival of Florencia 13. Appellant said, "Fuck Tramps" — a derogatory reference to members of the 38th Street gang. Appellant pulled a revolver from under his seat, leaned halfway out the drivers side window, and fired repeatedly at the men. Nava escaped injury, but Hernandez died as a result of multiple gunshot wounds. Appellant quickly drove back to the house on East 59th Place. As they drove, appellant said, "Yeah, we got him."
In addition to Nava and O.M., Stephanie Alford witnessed the shooting. She testified that she was driving on the same street and her vehicle was alongside appellants vehicle twice: just before and again immediately after the shooting. Each time, she looked directly at the occupants of the vehicle. Before the shooting she made eye contact with the driver, and after the shooting, she made eye contact with the young passenger. At trial, Alford and Nava joined O.M. in identifying appellant as the shooter.
When appellant and O.M. got back to the house, appellant went into the back yard for a time. O.M. saw something in appellants hand as he walked toward the back. O.M. did not tell anyone at the house about the shooting. When appellant came back to the front, he looked at everyone and said, "I feel that Im not wanted here." He got back in his truck and started to leave, but quickly returned.
The police arrived at the house. Appellant said to O.M., "You dont know nothing. The officers detained almost everyone at the house and brought Nava and Alford to the house for a field lineup. Nava identified appellants vehicle, but did not identify any person. Alford also identified appellants vehicle, appellant, and O.M.
The police searched the house and appellants truck, but did not find a gun. Later, however, an officer answered the mobile phone of one of the men arrested at the home and heard a man say he had put "the burner," i.e., gun, in a pipe in back. Officers returned to the house on 59th Street Place and found the murder weapon in a drainage pipe behind the house.
The prosecutions gang expert, Los Angeles Police Department Officer Eric Rose, testified that there was abundant Florencia 13 graffiti outside the house on East 59th Place, including the names of four cliques, including the 64th Street clique and the Neighborhoods clique, to which O.M. belonged. There was also a "roll call" graffiti naming members of the gang. No evidence attributed any particular graffito to appellant, and no one testified that appellant was listed in the "roll call." Another police officer testified that the house was a known hangout for the Florencia 13 gang, and that he had previously contacted members of the gang at that house.
Rose did not know appellant and had never had contact with him. No other police officer testified to any prior contact with, or knowledge of, appellant.
Rose testified that Florencia 13 was a huge gang with over 3,000 members in several cities and unincorporated areas of Los Angeles County. The gang had 25 to 30 cliques. Rose testified the cliques conduct "formal meetings where they get together and discuss things that are going on." These meetings are necessary to keep the gang structured and consistent. At these meetings, members talk about crimes they have recently committed and boast about their criminal exploits.
Rose further testified that appellant has several Florencia 13 tattoos, a "smile now, cry later" tattoo, and a tattoo meaning "East Coast Crips Killer." The East Coast Crips gang is another rival of Florencia 13. In response to a hypothetical question based upon the facts of this case, Rose opined that the shooter was an active gang member and the shooting was committed for the benefit of the gang and to promote or further criminal activity by the gang.
When appellant was first tried for the charged offenses, the jury was unable to reach a verdict, and the court declared a mistrial with respect to all counts.
At the retrial, the jury convicted appellant of first degree murder, shooting from a vehicle (Pen. Code, § 12034, subd. (c)), and possession of a firearm by a felon. The jury found that each of these offenses was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. It further found that appellant personally fired a gun, causing death and great bodily injury, in the commission of the murder and shooting from a vehicle (§12022.53, subd. (d)). The jury also found both of the alleged special circumstances true, i.e., the 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 (§ 190.2, subd. (a)(21)) and appellant intentionally killed the victim while appellant was an active participant in a criminal street gang, as defined in section 186.22, subdivision (f), and the murder was carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)). The jury could not reach a verdict regarding the attempted murder charge. The court declared a mistrial as to that count, which was later dismissed.
All further statutory references pertain to the Penal Code, unless otherwise specified.
The court found appellant had suffered one prior serious felony conviction within the scope of section 667, subdivision (a)(1) and the Three Strikes Law. It sentenced appellant to life in prison without parole, plus 25 years to life for the section 12022.53, subdivision (d) enhancement, plus 5 years for the section 667, subdivision (a) prior serious felony enhancement. The court imposed and stayed, pursuant to section 654, the terms for shooting from a vehicle and felon in possession of a firearm convictions.
DISCUSSION
1. The comments by the trial court and defense counsel during voir dire were not improper.
Appellant contends that the trial court contaminated the jury with an anti-gang bias by its remarks during voir dire that "repeatedly and affirmatively validated" the preconceptions and prejudices expressed by several jurors who were subsequently excused for cause. We disagree.
In order to fulfill its critical functions, the trial court must have sufficient latitude to ask questions that acknowledge commonly held preconceptions, even if acknowledging them emphasizes that they exist. Without the ability to raise and discuss such issues in plain language, the trial court would be prevented from pointing out that such preconceptions must be put aside. The trial court must be able to speak realistically in a way that reaches real people. Our courts have long recognized the need to allow the trial judge to accomplish these ends.
"Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judges responsibility to remove prospective jurors who will not be able impartially to follow the courts instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendants right to exercise peremptory challenges . . .." (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 (Rosales-Lopez).) "[I]n carrying out its duty to select a fair and impartial jury . . ., the trial court is not only permitted but required by inquiry sufficient for the purpose to ascertain whether prospective jurors are, through the absence of bias or prejudice, capable of participating in their assigned function in such fashion as will provide the defendant the fair trial to which he is constitutionally entitled.. . . [W]hat is necessary is an inquiry calculated in its design and broad enough in its extent to accomplish its intended object, that is, to ascertain whether one satisfies constitutional requirements having to do with jurors." (People v. Fimbres (1980) 104 Cal.App.3d 780, 788-789.)
"Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judges function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." (Rosales-Lopez, supra, 451 U.S. at p. 188.) Accordingly, the trial court retains great latitude in deciding what questions should be asked on voir dire, and the trial courts exercise of discretion is entitled to considerable deference on appeal. (MuMin v. Virginia (1991) 500 U.S. 415, 424; People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.)
Appellant bases his claim on the trial courts statements during its questioning of seven prospective jurors, none of whom ultimately sat on the jury that tried the case.
As a preliminary matter, we note that appellant forfeited the claim by failing to object to any of the courts comments during the trial. (People v. Monterroso (2004) 34 Cal.4th 743, 759.) After the court made many of the statements challenged on appeal, appellant moved to disqualify the panel based upon the prospective jurors comments, but expressly noted that he did not think the court was at fault. After the court made the remainder of the statements challenged on appeal, it denied appellants motion.
In any event, appellants error claim has no merit. We address each of the courts comments in turn, italicizing the portions of which appellant complains.
Prospective Juror No. 5
The court asked prospective jurors whether they or anyone "close to" them lived in "a neighborhood where criminal street gang activity is considered a problem." Prospective Juror No. 5 stated he or she grew up around gangs and his or her mother still lived in an area where there was a gang. The court asked whether the prospective juror had friends while growing up who ultimately became gang members. The prospective juror replied, "Unfortunately, yes." The court asked, "And so you saw the transition from being someone that you maybe played with and then later on someone that you wouldnt associate with; correct?" The prospective juror agreed. The court asked if that would affect the prospective jurors ability to decide the case impartially. The prospective juror said it would not, and the court asked,
"You dont think so? What Im trying to get at here is this: no one likes criminal street gangs; right? Is there anyone here who likes criminal street gangs? No. Right? So in order for the defendant to receive a fair trial, we have to recognize that the society, whether its wrong or right, has certain prejudices that it places on certain kinds of people. [¶] So criminal street gangs are a group of people that, if you asked anyone whos a tax-paying citizen is going to say, `We dont like criminal street gangs. But just because somebody is alleged to be a member of a criminal street gang or the crime is alleged to be gang-related does not mean that we throw away fairness and just convict the person; correct? We have to still apply the rules and act fairly towards the process. [¶] Do you understand?"
Prospective Juror No. 5 agreed that he or she understood and would not have a problem being fair. The prosecutor subsequently exercised a peremptory challenge against Prospective Juror No. 5.
Reading the courts entire statement in context, we conclude the trial court did not abuse its discretion or make any statement likely to improperly influence any of the remaining jurors who were ultimately seated on appellants jury. The principal thrust of the courts comments was that appellant was entitled to a fair trial by impartial jurors who would not be swayed by animosity toward criminal street gangs. To the extent the court stated that no one, or at least no "tax-paying citizen" liked criminal street gangs, it merely acknowledged the potential juror bias it sought to uncover.
It is unlikely to have had any prejudicial effect in any case because it is unlikely the concept that tax-paying citizens dislike street gangs would have suggested to any juror something that he or she did not already know. The existence of widespread public animosity toward criminal street gangs has long been recognized by the courts of this state. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 905 ["In Southern California, Chicano youth gangs have received widespread media publicity for their purported criminal activities."]; People v. Perez (1981) 114 Cal.App.3d 470, 479 ["It is fair to say that when the word `gang is used in Los Angeles County, one does not have visions of the characters from the `Our Little Gang series. The word gang as used in the case at bench connotes opprobrious implications. The trial judge in Zammora recognized that the use of the word `gang takes on a sinister meaning when it is associated with activities."]; People v. Plasencia (1985) 168 Cal.App.3d 546, 553 ["[G]ang membership may have a significant number of unsavory connotations in present day society. . .."].)
Furthermore, our public policy expressly recognizes the unacceptability of criminal gang conduct. In enacting the Street Terrorism and Prevention Act, the Legislature expressly found that "the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected.. . . It is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." (§ 186.21.) Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, approved by the voters on March 7, 2007, similarly declared, "Criminal street gangs and gang-related violence pose a significant threat to public safety and the health of many of our communities." (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (b), p. 119.)
In accordance with our public policy and the Legislatures findings, our statutes condemn and penalize criminal gang conduct. (See, e.g., §§ 186.22 [establishing crime of active participation in criminal street gang and providing for penalty enhancement where a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang], 186.22a [providing for injunction or abatement of nuisance constituted by places used by criminal street gangs or in which criminal conduct by gang members takes place], 186.26 [establishing crime of recruitment or coercion of another to participate in a criminal street gang], 186.30 [requiring members of criminal street gang to register under certain conditions], 190.2, subd. (a)(22) [establishing special circumstance for murder committed by an active participant in a criminal street gang to further the gangs activities].)
Accordingly, the trial courts remarks to Prospective Juror No. 5 acknowledging the potential for bias against a member of a criminal street gang and societys condemnation of criminal gang activity were well supported by the law and public policy. The remarks merely addressed what every reasonable, intelligent juror would already know and quickly learn in greater detail when instructed upon the gang enhancement and gang special circumstance allegations.
Moreover, the jurors who were actually empanelled were instructed upon the presumption of innocence and the burden of proof (CALCRIM No. 220), along with the elements of all of the charges, enhancement allegations, and special circumstance allegations (CALCRIM Nos. 520, 521, 600, 601, 700, 735, 736, 968, 1401, 2511, 3150). The jury was further instructed not to allow bias, prejudice, or public opinion to influence its decision (CALCRIM No. 200) and that it should not take anything the court said as an indication of what the court thought about the facts, witnesses, or proper verdict (CALCRIM No. 3550).
We conclude the courts remarks were not the kind of remarks that would inject prejudice into the proceedings or improperly influence the jury.
Prospective Juror No. 34
The court also asked prospective jurors if anyone had "an issue or a problem with the defendants right to a presumption of innocence." Prospective Juror No. 34 said he or she agreed "they have the right, but" gang members went into a life of crime and deserved whatever punishment they received. The prospective juror added that a child he or she previously supervised at a Boys and Girls Club was murdered by a gang member as a result of an argument. The court then had the following exchange with Prospective Juror No. 34, whom the court later excused for cause:
The Court: A lot of it is very senseless. But are you going to blame him for that — Mr. Torres?
Prospective Juror No. 34: I just feel a gang member is, you know, goes into a life of crime and what happens to them they deserve. Its like you go into the Mafia, youre not going to a life of, you know, pleasure its a life of crime. You get caught. You pay the price.
The Court: Right. But doesnt it have to be proven first?
Prospective Juror No. 34: You know, its — as far as Im concerned, theyre guilty of something. If they werent caught in the past, you [dont] get them off the streets now, it causes another problem later on.
The Court: So you dont think anyone who is accused of being a gang member deserves a fair trial?
Prospective Juror No. 34: No.
The Court: Everyone?
Prospective Juror No. 34: They deserve a fair trial but are they most likely innocent? No. Theyre guilty of something in the past.
The Court: Well, I think thats a logical thought that probably many people have. But are you saying that because the defendant is accused of possibly being a gang member that you would not be able to perform the task of being a fair juror in this case?
Prospective Juror No. 34: No.
. . .
The Court: Heres the thing: it really bothers me when people say — you know, I dont want to get too much into my own personal history, but Im a victim of a violent crime. I got stabbed by a gang member, but I dont let that affect my ability to process cases fairly and objectively because justice requires it. [¶] Justice means that a person digs within themselves and calls on their highest self to do the right thing. Its easy to say, well, hes accused of being a gang member. He must be guilty of something. So lets just convict him. Very easy to take that path. But that isnt justice. It is not justice. Justice requires that the prosecution prove that the crime happened and that they prove it to an unbiased juror beyond a reasonable doubt so that you as a juror calling upon your highest self, looking at the evidence, can say to yourself at the end of the trial, "I have no reasonable doubt in my mind that the defendant is guilty." [¶]If you reach that point of analyzing the facts and being able to say to yourself there is no reasonable doubt in my mind, you should convict the defendant; however, if you intellectually cannot say that just because a person is accused of being a gang member, you cannot convict him, you cannot say hes guilty because he must be guilty of something; so lets just get him on this. That is not fairness. That is not justice. [¶] And our system is better than that. Our system has to be better than that and it requires that every single person, if youre able to — if you cannot do it, fine. But, if youre able to, that you reach inside of yourself and bring that kind of a person out to serve as a juror. Because if at the end of it youve done that, a defendant could still be upset that he or she was convicted but they will know that the judge involved in the case and the jurors involved in the case did their best to be as fair as possible. [¶] Thats the best we can do in our system. And so Im not trying to lecture anybody. But as a judge I have a duty and a responsibility to make sure that Mr. Torres is given a fair trial, that the prosecution is given a fair trial, and that the jurors do their jobs appropriately, which is to be fair and impartial. We are not advocates, you and I. We are not advocates. Were not on a side. Were not trying to make society safe. That isnt the job of a judge or a jury. Youre not here to think about, "Well, my neighborhood has gangs. I want to put gang members away because I want my neighborhood to be safer." That is not an appropriate thought process to be entertaining as a juror. [¶] All right. Now, Im sorry I had to get into that, but its necessary sometimes that I say these things so that you understand were not here to just do whatever we want. We have to hold ourselves accountable to rules of law and apply them as jurors.
Considered in their entirety, the trial courts statements forcefully and eloquently addressed the purpose of a trial, the proper role of jurors, the presumption of innocence, and the necessity of proof beyond a reasonable doubt. In the first brief, isolated portion of which appellant complains, the court did not endorse the view expressed by the prospective juror, i.e., that a gang member, if not guilty of the present crime, was at least guilty of some other past crime or would commit a crime in the future, but merely acknowledged that it was a potentially widespread view with a measure of simplistic appeal. The court then emphatically denounced that view and explained to the prospective jurors why they could not adopt such a reasoning process.
In the second portion of which appellant complains, the court did not inform the jury that gang members were dangerous or emphasize their dangerousness. The commission of violent crimes by gang members is a matter of public knowledge. In context, the courts reference to the stabbing was an example of rising above personal grievances and acting objectively. Nothing stated by the court risked injecting prejudice into the proceedings or improperly influencing the jury.
Prospective Juror No. 50
Immediately after the above-quoted exchange involving Prospective Juror No. 34, Prospective Juror No. 50 told the court that he felt the "system" and the government allowed gangs to exist and terrorize neighborhoods, whereas "were not supposed to have any gangs existing in the first place." The prospective juror said he could not be fair and added, "[T]he government system doing [sic] nothing about it and he feels free to do so and he grabs a gun and kills somebody because hes free to do so because of the system." The prospective juror told the court he was from Armenia, and the court asked him why he came to the United States. The prospective juror cited freedom. The court stated,
The reason why it seems to me that many immigrants come to the United States is because here there is freedom. Why is it that we have freedom here? The reason is because we have rules of law that apply, that insures that freedom. That means that you have to apply the rules to everyone, not just to the people that you think are good people and not apply it to people that you think are bad people. [¶] Every single person under the rule of law is afforded the rights under the law. So right now Mr. Torres has all of the rights that you have. If you were a defendant, you would have the same exact rights. Every single person is treated the same. So the fact that Mr. Torres is accused of being a gang member does not alter that. He is still entitled to all of the rights.
After additional discussion or debate between the court and Prospective Juror No. 50 regarding "the system," the court engaged in the following exchange with him:
The Court: If a person of a certain ethnic decent [sic] was singled out because someone said that ethnic group is bad, theyre bad people
Prospective Juror No. 50: Thats wrong.
The Court: — and then brush them all aside and did not give that person dignity and allowed them the rules of law, would that be wrong?
Prospective Juror No. 50: Thats very wrong.
The Court: Being a gang member is not being a part of a minority group. It is a criminal enterprise.
Prospective Juror No. 50: Yes, sir.
The Court: And I understand that its not the same thing, but anyone can accuse anybody of anything. There is no proof here that Mr. Torres is a gang member right now. No evidence has been shown. But you have already convicted him.
After Prospective Juror No. 50 again asserted that "the system" promotes gang activity, the court stated,
The law does not allow gang members to commit crimes, that is not correct. [¶] . . . [¶] The law prevents a person from committing a crime in that the law says that that activity is criminal, and so if a person is accused of having committed a crime, violating the law, the police, if there is probable cause to arrest that person, has [ sic] the authority to arrest them. Once that person is arrested on the accusation of another persons word that he or she has committed a crime, then the court system comes into play. The court system is separate from police and the D.A. [¶] There are three powers in our legislative or in our democratic system: the legislative branch, the executive branch, and the judicial branch. This is called the balance of power. The D.A.s office and the police department are under the executive branch of government. The judicial branch is separate from that branch. The judicial branchs role is to insure that the rule of law is applied correctly under our democratic system. [¶] The constitution affords each person accused of a crime certain rights, including a right to a trial by a jury. Jury is defined as the peers of the defendant. Now, peer is not an exact definition, but it essentially means someone who has no stake in the outcome, not involved in the government, not part of the judicial, legislative or executive branch who come here without knowledge of the case, prior knowledge of the case, to serve on a case fairly and impartially with unbiased viewpoints to the greatest extent possible to give the person accused a fair crime — a fair trial. That is our system.
The trial court excused Prospective Juror No. 50 for cause.
Viewed in context and in their entirety, the courts remarks were an explanation of the workings of "the system" in an apparent attempt to dispel the unusual view espoused by Prospective Juror No. 50 that "the system" permitted or promoted gang activity. The court again explained the purpose of a trial and the role of jurors, and alluded to the presumption of innocence.
In the first brief, isolated portion of which appellant complains, the court did nothing more than recognize the state of the law, albeit a little elliptically. The court might more accurately have said that a gang that commits crimes is a criminal enterprise or that gang members who participate in criminal activity engage in a criminal enterprise. However, the discussion between the court and Prospective Juror No. 50 pertained to criminal activity by gangs that terrorized cities, painted graffiti, and grabbed guns and killed people. In context, it is immaterial the court failed to make the distinction that it is the commission of crimes by gang members rather than simply membership in a gang that is a criminal enterprise.
The jurors who convicted appellant were fully instructed on the elements of the gang enhancement and gang murder special circumstance, and would therefore not have taken the courts comment to mean that merely belonging to a gang was a crime. Nothing stated by the court in its exchange with Prospective Juror No. 50 risked injecting prejudice into the proceedings or improperly influencing the jury.
Prospective Juror No. 54
Prospective Juror No. 54 told the court that about half of his or her family members belonged to gangs. The court asked if that would affect the prospective jurors ability to be fair. The following exchange ensued:
Prospective Juror No. 54: Kind of, yeah. Ive seen dirty and bad.
The Court: Dirty and bad?
Prospective Juror No. 54: On both sides.
The Court: Youve seen police activity that you thought was beyond the boundary of police work?
Prospective Juror No. 54: Yes.
The Court: And then youve seen gang activity that were [ sic ], I suppose you would consider violent and heinous; is that right?
Prospective Juror No. 54: Yes .
The Court: Okay. Now, Ive also been shot. Youve been shot?
Prospective Juror No. 54: Yes.
The Court: What happened in that incident?
Prospective Juror No. 54: It was a robbery attempt.
The Court: Who was the suspect?
Prospective Juror No. 54: Latino.
The Court: Did he appear to be a gang member?
Prospective Juror No. 54: No.
The Court: If you were asked to serve as a juror in this case, you have to be fair and impartial to both sides. You cannot allow those feelings that you have to impact your fairness. Now, that does not mean that thoughts and feelings might not come up. They may. Were not robots; so things do come up. But in the end, when youre deciding the case in the back, you cant allow that to dictate how you vote. [¶] So feelings might come up, but if it is an inappropriate feeling, you have to be able to set it aside.
The prosecutor exercised a peremptory challenge against Prospective Juror No. 54.
The court did not elaborate upon the circumstances of its own shooting, did not tie it to gang activity, and utilized it implicitly to illustrate the need to set aside personal "thoughts and feelings" in order to act fairly and impartially. Nothing stated by the court in its exchange with Prospective Juror No. 54 risked injecting prejudice into the proceedings or improperly influencing the jury.
Prospective Juror No. 37
Prospective Juror No. 37, who was subsequently excused by the prosecutor, announced that he or she believed that "once theyre in a gang, you stay there." The court then questioned the prospective juror as follows:
The Court: Do you think there are people who can get out of criminal street gangs?
Prospective Juror No. 37: I believe they can get out, but I believe its [easy] for them to go back in.
The Court: You think its a lifestyle choice thats hard to get out of?
Prospective Juror No. 37: Yeah.
The Court: That thought process, will it hinder your ability to be fair in this case?
Prospective Juror No. 37: Ill try to be fair.
The Court: In this attempt to be fair, Ive explained to several jurors how their prior experiences could not be deciding factors if there is reasonable doubt. If you had voiced some opinions that criminal street gangs were evil and that you believe that people who are in criminal street gangs are up to no good — now, that may be true, what youre saying, but that is not a fact that is going to decide this case. Because thats not evidence being presented here. That is your own idea of criminal street gangs. Will you use your prior experiences to decide whether or not to convict Mr. Torres?
Prospective Juror No. 37: No.
In context, the remark of which appellant complains pertained to the prospective jurors opinion, not the courts opinion. The court did not endorse the jurors view or agree that it was true, but simply said it may be true. Furthermore, the public policy of this state confirms that criminal street gangs are up to no good, and that their criminal activities are an evil that must be eradicated. Nothing stated by the court in its exchange with Prospective Juror No. 37 risked injecting prejudice or improperly influencing the jury.
Prospective Juror No. 43
Prospective Juror No. 43 told the court that he or she was concerned about possible retribution. The court engaged in the following exchange with the prospective juror:
The Court: Okay. You believe somehow there may be a spillover impact from this courtroom to your personal life?
Prospective Juror No. 43: Yes. Probably. I dont know what the affiliation is. It could be all of L.A., huge.
The Court: Anything is possible. Usually — and this is just anecdotal for you — but usually the attorney [ is ] in the most danger in terms of things happening is the criminal defense attorney. They sit next to the defendant. Then the witnesses who come to court, they testify and in some cases — I dont know what will happen here — but they point to the defendant and they say that that person did this or that. Then you have the prosecutor and the police officers who are prosecuting the case, then you have the judge whos sitting in front every single day, making decisions in the case, then there are l2 jurors who decide the guilt or innocence. [¶] Im not saying there is no possibility, but you should be aware, no one can ever guarantee that from the standpoint of things happening. Im not saying anything will happen. I dont know of any judges that have been killed, criminal defense attorneys who have been harmed, and I dont know of any prosecutors who have been killed, but Im saying this to sort of give you an example
. . .
The Court: You voiced a concern to me which means that youre going to be leaning towards the defendant unless its crystal clear. You simply have to stand back and be impartial, and then you take the evidence thats presented in the trial and then ask yourself do I have a reasonable doubt? If you do, not guilty. If you dont, then its guilty.
The court excused Prospective Juror No. 43 for cause.
The courts statement, in its entirety, responded to the prospective jurors concerns for his or her safety by explaining that there were many more likely candidates for retribution than a juror. The court did not effectively tell the prospective juror that appellant or any other gang member was dangerous; the jurors statements revealed that he or she already assumed appellant and other gang members were dangerous. The court also downplayed the assumed dangerousness of criminal defendants by stating it knew of no defense counsel who had been harmed, even though they sat next to their clients. Nothing stated by the court in its exchange with Prospective Juror No. 43 risked injecting prejudice into the proceedings or improperly influencing the jury.
Prospective Juror No. 44
Prospective Juror No. 44 told the court that, based upon her experience teaching sixth grade in inner city schools for 12 years, she thought that gangs did whatever they wanted to do. She added, "It breaks my heart. There is nothing I can do about it." The court responded as follows:
The Court: Right. Its horrible. I think everyone would agree with you. [¶] Will that affect your ability to be fair to Mr. Torres?
Prospective Juror No. 44: I hope not. I dont know.
The Court: Okay. Heres the thing, folks, hoping isnt going to cut it. Either you commit to it or youre not committing to it. Its a conscious choice you have to make. If you cannot be fair, then say you cannot [be] fair. Its okay to not be able to exercise fairness in a case. If you really think in the bottom of your heart you cannot be fair to Mr. Torres, I think both sides would rather know that you could be [sic] fair. [¶] So if you dont think you could do it, just let us know, "I cant be fair to Mr. Torres." I only ask that you be honest in the process, that youre not thinking of some other reason why you cant serve on this case to simply say," I cannot be fair." Because I cant get into your mind. I dont know why youre saying the things youre saying to me. Ive only spoken to most of you for just a few minutes; so there is no way for me to be able to assess that. [¶] What Im after here, ladies and gentlemen, as a judge in this case is to ensure that [the prosecutor and defense counsel] get a fair trial and that Mr. Torres is given a fair trial. If the jury believes beyond a reasonable doubt that hes guilty, then the jury needs to convict Mr. Torres. If, on the other hand, there is a reasonable doubt, then the jury needs to acquit him. Thats what were trying to do here, to do justice.
. . .
I need you to understand what your duty is, to be fair and impartial in the process. Again, if you believe you cannot do it, again, its okay. It really is okay for you to say, "I dont think Im going to be fair to Mr. Torres" or "to the prosecution."
So, you know, the example I give is this — I like sports; so I always give this example. If youre a referee and youre at a sporting event and you believe the referee has the fix on one side or another and youre watching the NBA and youre getting towards the end, they call a foul, you know, that seems sort of ticky-tacky, most jurors tell me when they see this they dont like it. It doesnt feel right. It doesnt seem straight. [¶] Have you ever experienced that before? It doesnt feel right. The referees job is to be fair. Theyre not supposed to be taking sides in the contest. Theyre not on one side or the other. Theyre supposed to do their job of being fair and impartial and call it as they see it.
Lets say its the good citizens against gang members, a basketball game. Right? Youre calling the game and you see a gang member going up for a layup and you see a good citizen do a flagrant foul on the gang member, gang member falls, doesnt make it. Youre going to call that foul. You have to call that foul. It doesnt matter if the person who fouls is a gang member or a good citizen, its a foul. You call it, you blow the whistle, foul. Why? Because thats what happened. Thats what youre supposed to do. Youre the referee. It doesnt matter what it is.
When you say that, there is certain sense of pride that comes up inside of you because, you know, Ive done the right thing. And thats what Im trying to convey to you, as a juror thats what you have to do. You have to reach inside yourself and find that part that aspires for justice, fairness, and employ that in your job as a juror. Thats it. And if you cant do it, its okay.
After the court stated it concluded Prospective Juror No. 44 could not be fair, it stated,
You see, Mr. Torres is a human being. Hes sitting here, watching this whole thing. Hes listening to the process. He sees it all happening. Hes hearing what hes hearing. Hes entitled to a fair trial. It does not matter that the prosecution has alleged hes a gang member. Hes entitled to a fair trial, and that is what Im trying to make sure that he gets. If the prosecutor proves the case and hes guilty, then convict him. But if the prosecutor doesnt prove it beyond a reasonable doubt, you have to acquit him. Thats it. Do you kind of see this?
Youre not sitting in his shoes; so you probably cant imagine it from his perspective. But its his life. Hes a human being. Hes watching this happen. Okay? Hes not an inanimate object. Hes a human being. Now, there is a victim in this case, too, someone who allegedly was killed. That is also very important for you to consider in assessing this case. But you have to see it and understand it, understand your role, and if youre able to do your role, do it. Okay?
Now, this gang issue, several people now have voiced strong feelings about criminal street gangs, and those of you seated in the back in the box, eleven of you, the questioning process actually is not open to you. We talked to you yesterday, but these ideas did not come out. So you didnt really get to participate in this part of it. [¶] Now, we did talk about gangs yesterday, but the sort of more visceral feelings did not come up. Im going to open it up to everybody on this issue. If you have feelings right now, those of you seated in seats one through twelve, you may raise your hand, and Ill follow up with you, too. [¶] Is there anyone seated in the box one through twelve that feels they cannot be fair to Mr. Torres because of the sentiments raised thus far about gangs? Do all of you seated in seats one through twelve believe you could give Mr. Torres a fair trial?
The reporters transcript indicated that the prospective jurors responded in the affirmative.
The trial court excused Prospective Juror No. 44 for cause.
The first remark to Prospective Juror No. 44 challenged on appeal simply acknowledged widespread public animosity toward and condemnation of criminal street gangs. As previously noted, our states laws and policies are in full accord. The courts ensuing commentary reminded the prospective juror of the impartiality and fairness required of jurors. The courts basketball metaphor merely attempted to illustrate that jurors must be able to set aside their biases to fairly determine the facts and apply the law. Although the court could have improved its metaphor by avoiding pitting "good citizens" against "gang members," its choice of "team" names did not, in context and in the entirety of the courts remarks, suggest that gang members are murderers or that appellants alleged gang affiliation indicated that he was a murderer who had committed the crime charged or any other crime. Moreover, the court went on to emphasize appellants humanity, his right to a fair trial by impartial jurors, and the presumption of innocence. Under the circumstances, we conclude that the courts remarks did not inject prejudice or improperly influence the jury. The basketball metaphor also created no risk that the jury would reverse the burden of proof, as appellant argues in his reply brief. The jury was fully and repeatedly instructed upon the presumption of innocence and the prosecutions burden of proof beyond a reasonable doubt.
Prospective Juror No. 37
Appellant also argues that one remark made by his trial attorney "essentially endorsed" the trial courts purportedly improper comments. This contention pertains to the italicized portion of the following exchange between defense counsel and Prospective Juror No. 37:
Counsel: Juror No. 37, maam, you also mentioned that youve been around gangs or been in neighborhoods with gangs. Have you ever met Mr. Hector Torres before?
Prospective Juror No. 37: No.
Counsel: Are you going to take it out on him or are you going to judge this case based on the evidence you hear in this case?
Prospective Juror No. 37: I am.
Counsel: Youll present it or judge him on the evidence you hear in this case; correct?
Prospective Juror No. 37: Correct.
Counsel: Heres another distinction that you need to make &m and the judge will give you the law — my client is not being charged with being a gang member. [¶] Do you understand that, Juror No. 37?
Prospective Juror No. 37: Yes.
Counsel: Hes being charged with committing the crime of murder, and then what is called a special allegation on that is if you believe he committed that murder, you have to be able to say whether you believe that murder was committed to benefit a gang or not. [¶] Do you understand that?
Prospective Juror No. 37: Yes.
Counsel: So let me give you one scenario, Juror No. 37. Lets assume the evidence shows that at the time October 27, 2005, my client was a gang member but he didnt pull the trigger and he didnt kill the victim in our case. [¶] Do you understand that?
Prospective Juror No. 37: Yes.
Counsel: What would your verdict be?
Prospective Juror No. 37: Not guilty.
Counsel: Correct. Even though you dont approve of gangs — and Ill be the first one to tell you I dont approve of gangs, I dont approve of gang members, but its choices people make and they make it, but the question is whether he committed the crime of murder. [¶] Does everybody here understand that?
Prospective Juror No. 37: Yes.
The challenged statement reflected the widespread public disapproval and condemnation of criminal gang activity by gang members. Defense counsel also reminded the prospective jurors of the presumption of innocence and burden of proof and pointed out that mere gang membership was not a crime and would not support a conviction of the charged offenses. Moreover, defense counsel may have seen a tactical advantage in making the challenged statement, in that he may have believed that the statement would imply appellant either was not a gang member or, if he was one, he was not guilty of the charged crimes. Accordingly, appellant cannot prevail on appeal on a claim of ineffective assistance of counsel based on defense counsels remarks. (People v. Majors (1998) 18 Cal.4th 385, 403.)
For all of the aforementioned reasons, we conclude that the remarks made during voir dire — considered singly or collectively — did not violate appellants right to an impartial jury.
2. The evidence was insufficient to establish that appellant knew that the gang had committed two or more of the offenses specified in section 186.22 on separate occasions, or by two or more persons, with the most recent of these offenses occurring within three years after a prior offense, as required by the statute.
The special circumstance set forth in Penal Code section 190.2, subdivision (a)(22) applies where "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." The parties agree that appellants subjective knowledge that members of the gang engage in or have engaged in a pattern of criminal gang activity was an element of this special circumstance, and the jury was so instructed.
The jury was instructed with CALCRIM No. 736, which includes the following element: "3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity." The comment to CALJIC No. 8.81.22, which also includes the knowledge element, explains the inclusion of this element: "In People v. Robles, 23 Cal.4th 1106, 99 Cal.Rptr.2d 120, 5 P.3d 176 (2000), the phrase, `active participant in a criminal street gang, as defined in subdivision (a) of section 186.22 was construed to mean that the elements of that crime were incorporated in Penal Code § 12031(a)(2)(C). Since that same language is found in Penal Code § 190.2(a)(22), the committee has included the pertinent elements of that section into its definition of the essential elements of this special circumstance allegation."
Appellant contends that the evidence was insufficient to establish that he knew that Florencia 13 members engage in or had engaged in a pattern of criminal activity. Applying the precise legal standard, that is to say that appellant knew that Florencia 13 members: (A) had committed two or more of the offenses specified in section 186.22, subdivision (e); (B) on separate occasions or; (C) by two or more persons; (D) with the most recent of those offenses occurring within three years after a prior offense.
At the time the charged offenses were committed, section 186.22, subdivision (e) defined "pattern of criminal gang activity" as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . .."
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
The prosecution introduced abundant evidence showing that appellant was a member of Florencia 13, e.g., his tattoos and his companionship with other Florencia 13 members at a known Florencia 13 gang "hangout" on the day of the crimes. The prosecution also introduced ample evidence proving that appellant committed the charged offenses for the benefit of the Florencia 13 gang, and with the specific intent to promote, further, or assist criminal activity by that gang. For example, appellant challenged the victims with respect to their gang affiliation and denigrated the gang that claimed the location at which appellant found the victims. The parties stipulated that Florencia 13 was a criminal street gang within the scope of section 186.22, subdivision (f).
No evidence, however, showed that appellant knew that Florencia 13 members had committed two or more of the offenses specified in section 186.22, subdivision (e), on separate occasions or by two or more persons, with the most recent of those offenses occurring within three years after a prior offense. Indeed, there was no evidence that appellant knew that Florencia 13 members had ever committed two or more of the statutorily enumerated offenses.
Respondents reliance upon the fact that the gang conducted periodic "formal meetings" also is insufficient because there was no evidence that appellant had ever attended such a meeting, let alone a meeting at which an attendee notified the group that a Florencia 13 member had committed two or more of the statutorily enumerated offenses.
Respondent also relies upon evidence showing that appellant was a member of the gang and socialized with other gang members at a graffiti-laden location frequented by members of the gang. At best, this creates suspicion that appellant would likely possess the requisite knowledge. Evidence that merely raises a strong suspicion of guilt is insufficient to support a conviction or finding. (People v. Thompson (1980) 27 Cal.3d 303, 324.)
Respondent also apparently argues that appellants knowledge of the charged offenses supported the special circumstance because "such a shooting would likely be discussed at a gang meeting where criminal activities by gang members were usually discussed." That such a meeting was conducted is pure speculation. Moreover, appellant was arrested about 20 minutes after the commission of the charged offenses, and therefore would not have been in attendance to hear his crimes discussed.
A more fundamental problem with respondents argument, however, is the circular reasoning entailed in permitting appellants knowledge of his own current offenses to prove that appellant "knew that members of the gang engage in or have engaged in a pattern of criminal gang activity." Acceptance of this reasoning would render the knowledge element of the special circumstance meaningless. Every sane defendant who is found to have committed the charged offense can be deemed to know that he or she committed it.
Such circular reasoning is impermissible. In the context of the offense of active participation in a criminal street gang (§ 186.22, subd. (a)), from which the knowledge element of the special circumstance stems, the California Supreme Court has indicated that the knowledge element is distinct from the pattern of criminal gang activity element, for which the charged offenses may be used in partial proof. (People v. Lamas (2007) 42 Cal.4th 516, 523-524.)
Accordingly, insufficient evidence supports the jurys "true" finding on the gang special circumstance, which must be reversed. Retrial of this allegation is barred. (People v. Lewis (2008) 43 Cal.4th 415, 509.) Given the remaining, unchallenged special circumstance, however, reversal does not alter appellants sentence or require resentencing.
DISPOSITION
The gang murder special circumstance (§ 190.2, subd. (a)(22)) is reversed. In all other respects, the judgment is affirmed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.