Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064452
RUVOLO, P. J.
Appellant is a gang member and drug dealer. He gave some methamphetamine to a woman he knew for safekeeping. While the woman was driving with the methamphetamine in her car, she was stopped by the police, and the methamphetamine was found and confiscated. The woman told the police that the drugs belonged to a friend of appellant’s who was in appellant’s gang. About two weeks later, appellant, his friend, and a third member of their gang tied up and shot the woman, her boyfriend, and the woman’s male roommate, who was a former member of a rival gang. The victims were injured, but survived.
Appellant was convicted of attempted murder and other crimes, and a gang allegation was found to be true. On appeal, he argues that the trial judge erred in admitting evidence of his participation in a gang-related convenience store robbery to prove the gang allegation. We disagree, and affirm.
Facts and Procedural Background
Because the only issue on appeal is whether the evidence of appellant’s prior crime was admissible, we will recite the underlying facts relatively briefly. As of November 2006, appellant was a drug dealer and a member of the Mountain View Surenos (MSV) gang. Appellant was friends with a man named Pedro Cardenas, who was dating a woman named Ruby Romero. Romero shared an apartment in East Palo Alto with a friend of hers named Eddie Ortiz. Cardenas and Romero were both methamphetamine users. Eddie was a heroin addict, an ex-felon, and a former member of the Nortenos gang.
This case also involves another man, Ramon Ortiz, who has the same surname as Eddie Ortiz. (There is no indication in the record that the two men are related.) To avoid confusion, and without intending any disrespect, we will refer to Eddie Ortiz and Ramon Ortiz by their respective first names.
In late November 2006, appellant, accompanied by Cesar Arrellano, whose nickname was Sleepy, gave Romero a fist-sized amount of methamphetamine and asked her to hold onto it for him. Romero was reluctant to take it, but kept the methamphetamine until December 4, 2006, when she decided to return it to appellant.
Arellano and his brother were both members of the MVS gang.
While Romero was driving to return the methamphetamine to appellant, accompanied by man named Jose Rendon, she was stopped by police. The police found and seized the methamphetamine, and arrested Romero and Rendon. Romero was afraid of what appellant would do when he found out she had lost the methamphetamine he gave her, so she told the police she had been holding it for Arrellano.
Shortly after Romero got out of jail, appellant came to her apartment and asked her what she had told the police. She explained that she had told them the drugs belonged to “Sleepy.” Appellant asked her to tell the police that the drugs actually belonged to Rendon, and when Romero refused to do this, appellant became angry.
In mid-December 2006, there was a party at Romero and Eddie’s apartment, which appellant and Cardenas attended. At the party, appellant found out from Cardenas that Eddie was a former Norteno. Appellant was upset by this, because he was a member of the rival Surenos.
On December 22, 2006, appellant came to Romero’s apartment three times. He said he was looking for Cardenas, and appeared upset. The last of appellant’s three visits to Romero’s apartment occurred at 9:00 p.m. He was accompanied by Arrellano and a man later identified as Ramon. Ramon, like appellant and Arrellano, was a member of the MVS gang. Romero, Cardenas, and Eddie were in the apartment when appellant and his companions arrived. Eddie noticed that appellant’s companions were standing watch in a way that looked like what gang members did during assaults Eddie had witnessed in prison. He tried to leave, but Arrellano and Ramon pushed him back into the apartment.
Ramon then took out a handgun and some black plastic zip ties. Appellant and Arrellano bound Romero, Cardenas, and Eddie with the zip ties while Ramon fetched two knives from the kitchen. Ramon then gave the gun to appellant and one of the knives to Arrellano, and asked the bound victims where the drugs and money were kept. Romero and Eddie told Ramon that they did not have any drugs or money, but invited him and his companions to take anything else they wanted from the apartment, and begged the intruders not to kill them. Ramon took Eddie’s tattoo kit.
Ramon then told appellant to do what they had come to the apartment to do, which was to kill the three occupants. Appellant shot Eddie, Cardenas, and Romero, all at close range. Ramon remarked that the victims were still alive, told appellant that they had to finish the job, and tried to stab Eddie. Eddie had managed to free himself, however, and was able to defend himself. Romero had also managed to free one of her hands, so when appellant tried to shoot her in the head, she raised her arm, and he hit her wrist instead. After that, appellant tried to shoot Eddie and Cardenas again, but his gun would not fire. Cardenas also managed to get free, and threw a table at appellant. At that point, the attackers turned and ran.
All three victims survived the attack. Romero and Eddie were able to identify all three of the attackers. Cardenas only identified appellant.
Four days after the attack, Ramon was stopped by the police while driving. The police found a loaded gun, a methamphetamine pipe, and gang paraphernalia in his car. Ramon admitted to the police that he was a member of the MVS, and that he knew appellant.
Appellant was arrested on January 11, 2007. An amended information filed during trial charged him with three counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664 ), all of which were alleged to have been committed willfully, deliberately, and with premeditation (§ 189), and to have involved appellant’s personal discharge of a firearm, causing great bodily injury as to two of the three counts (§ 12022.53, subds. (c), (d)). Appellant was also charged with three counts of assault with a firearm (§ 245, subd. (a)(2)), with allegations that in committing the assaults, appellant personally used a firearm and inflicted great bodily injury (§§ 12022.5, subd. (a)(1)). Finally, appellant was charged with one count each of residential burglary (§ 460, subd. (a)) and first degree robbery (§ 212.5, subd. (a)), each also with allegations of personal firearm use (§§ 1203.06, subd. (a)(1) and 12022.5, subd. (a)(1) as to burglary; §§ 1192.7, subd. (c)(8) and 12022.53, subd. (c) as to robbery). As to all of the counts except the robbery, appellant was alleged to have committed the crimes 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. (§ 186.22, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise noted.
At appellant’s trial, the prosecution introduced extensive expert testimony from a police officer, Ken Leal, regarding the culture and activities typical of criminal street gangs, and in particular of the MVS gang, to which appellant belonged. Leal explained that members of Sureno gangs, such as MVS, look with serious disfavor on friends or associates who live with a member or former member of a Norteno gang, because the Surenos and Nortenos are rivals. He also opined that committing violent crimes, or crimes that earn money for the gang, earns status and respect for a gang member within the gang and its rivals, and that gangs often punish not only their own members, but also victims and witnesses of gang crimes, for “snitching,” that is, cooperating with police investigations. Leal stated that the primary activities of MVS included assault (including assault with a deadly weapon and assault with force likely to cause great bodily injury); battery; auto burglary and auto theft; and robbery (either “strong armed” or armed). Leal knew several MVS members who were methamphetamine users, and many MVS members had been arrested for possession of drugs or drug paraphernalia. MVS was suspected of being involved in drug trafficking, though this had not been proven. The zip tie robberies were gang-related, and indeed, were examples of some of MVS’s primary activities. There was a pattern to the zip tie robberies. In all but one instance, the store clerks were tied up using zip ties. In each robbery, three or four MVS members would work as a team, with each person having a specific job: one person would secure the clerk, another would go to the cash register, and another would get alcohol or whatever other goods the group wanted from the store. Ramon, an admitted MVS member, pleaded guilty or no contest to committing three of the zip tie robberies, and was convicted of a gang enhancement in connection with them as well.
Appellant does not dispute the sufficiency of that evidence to prove that MVS was a criminal street gang and that he was a member of it, so we will only describe the portions of Leal’s testimony that are most relevant to this appeal.
Appellant was involved in one of the zip tie robberies, which occurred on December 20, 2006, and had admitted to Leal that he was an MVS member. Leal had known appellant for quite some time, and Leal believed that during the course of their acquaintance, appellant’s level of involvement in MVS had increased. When asked a hypothetical question about a criminal assault based on the facts of this case, Leal opined that such a crime would benefit the MVS by getting rid of a snitch, making a profit through the theft of drugs, money, or other assets such as the tattoo kit, and gaining respect by punishing “snitching” and assaulting a former member of a rival gang. He also opined that the facts of such a crime would be consistent with the manner in which MVS members had acted together as a team to commit the zip tie robberies.
On cross-examination, Leal admitted that MVS members and associates do sometimes commit crimes that do not benefit the gang and do not have gang-related motives. On redirect, he opined that if someone were arrested while in possession of drugs belonging to an MVS member, and then bailed out of jail shortly thereafter, any MVS member would want to know what that person had told the police; would be suspicious that the person might have agreed to work as an informant; and would want to eliminate them as soon as possible.
Another police officer, Cary Shueh, also testified about the zip tie robberies, and confirmed that zip ties were used in each of them. Shueh also explained that in one of the zip tie robberies, the surveillance camera footage depicted a person whom Shueh believed was appellant, so Shueh interviewed him about it. Four suspects were involved. At least one of them was armed, but appellant was not. At the time Shueh spoke with appellant, the other three had already confessed to their participation in the robbery. Confronted with this information, and with the surveillance camera footage, appellant admitted to Shueh that he had participated also, though he said he had only been involved in that one robbery. Appellant explained to Shueh that each participant in the robbery was assigned a duty, and that appellant’s job was to distract the clerk. Appellant declined to tell Shueh whose idea it was to commit the robbery, because he did not want to be a “snitch.”
Leal also testified that appellant’s role in this robbery was to distract the clerk, and opined that appellant’s refusal to discuss the other individuals involved in it was consistent with the policy among gang members, including those in MVS, against “snitching.”
The jury found appellant guilty of the three attempted murder counts, the three assault with a firearm counts, the burglary count, and a lesser included offense of attempted first degree robbery as to the robbery count. The jury found that the prosecution had proven all of the firearm use and gang enhancement allegations except for the firearm allegation as to the robbery account.
On November 12, 2008, the trial court sentenced appellant to an aggregate term of 115 years to life in prison. On November 26, 2008, appellant filed a timely notice of appeal. On February 20, 2009, the trial court issued an order recalling the sentence under section 1170, subdivision (d). On the same day, the trial court resentenced appellant to six years eight months plus 40 years to life in state prison. On April 16, 2009, appellant filed a second notice of appeal, which was also timely.
Section 1170, subdivision (d), creates a statutory exception to the normal rule that the filing of a notice of appeal divests the trial court of jurisdiction. Thus, under that statute, a trial court may recall a sentence and resentence the defendant even if an appeal is already pending. (See People v. Nelms (2008) 165 Cal.App.4th 1465, 1472; Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1836.)
Respondent’s brief contends that this appeal was not timely filed. This contention is without merit, because appellant filed timely notices of appeal both from the original judgment and from the revised judgment reflecting his resentencing under section 1170, subdivision (d). Respondent’s request that we dismiss the appeal is therefore denied.
Discussion
Prior to appellant’s trial, the prosecution argued that Leal and Shueh should be permitted to testify that appellant participated in one of the zip tie robberies, on the grounds that this evidence was admissible to prove the “pattern of criminal gang activity” required for the gang enhancement under section 186.22. The prosecution also argued that this evidence was admissible, under Evidence Code section 1101, subdivision (b), to prove a common scheme or plan, based on the use of black plastic zip ties to bind the victims both in the zip tie robberies and in the charged crimes. Appellant’s trial counsel objected, unsuccessfully, that the zip tie robberies were not sufficiently similar to the charged crimes to be used to show common scheme or plan, and that the evidence was actually being offered to show that appellant was disposed to commit the charged crimes, and was therefore inadmissible under Evidence Code section 1101, subdivision (a).
Appellant’s sole contention on appeal is that in allowing the prosecution to introduce the evidence of appellant’s uncharged participation in one of the zip tie robberies, the trial court abused its discretion under Evidence Code sections 352 and 1101, subdivision (a), and violated his federal and state constitutional due process rights. Specifically, appellant argues that the characteristics of the zip tie robberies were too dissimilar to those of the charged crimes for the evidence to be admissible under Evidence Code section 1101, subdivision (a) to show a common design or plan.
Appellant contends that his trial counsel’s objection under Evidence Code section 1101, subdivision (a), was sufficient to preserve the contentions he raises on appeal. Respondent does not argue otherwise, so we will assume for the sake of argument that appellant is correct.
This argument overlooks the actual relevance of the evidence. There was no real issue at appellant’s trial as to whether the charged crimes were committed, or as to whether appellant was the person who committed them. All three of the victims testified about what was done to them, and all three of them knew appellant beforehand and identified him without question as the perpetrator. Thus, the only real issues were ones of intent, including whether the gang enhancement statute applied – that is, in the words of the statute, whether appellant committed the crimes “for the benefit of, at the direction of, or in association with” the MVS, “with the specific intent to promote, further, or assist in any criminal conduct by [MVS] members.” (§ 186.22, subd. (b)(1).) Essentially, therefore, the evidence of appellant’s participation in one of the zip tie robberies was admitted to prove appellant’s gang-related motive and intent in committing the charged crimes. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of defendant’s gang affiliation and of gang’s beliefs and practices may be admitted, in cases involving gang enhancement, to show motive, intent, or other issues relevant to guilt of charged crime]; People v. Dominguez (1981) 121 Cal.App.3d 481, 497-500 [in case in which gang members were charged with murder and assault with a deadly weapon, evidence of defendants’ gang membership and nature of gang’s activities was properly introduced to show defendants’ motive for killing rival gang member].)
As appellant acknowledges, the degree of similarity between charged and uncharged crimes that is necessary in order for the evidence of uncharged crimes to be admissible varies depending on what the evidence is offered to prove. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds, as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) When evidence of uncharged crimes is offered to prove motive and intent, the least degree of similarity to the charged crimes is required. (Id. at pp. 402-403.) Thus, in the present case, the prosecution met its burden to show admissibility under section 1101, subdivision (b) by establishing that appellant’s uncharged crime was also gang-related, coupled with the common features of teamwork by the gang members and the use of black zip ties to bind the victims. Taken together, these facts tended to establish that appellant’s assault on Romero, Eddie, and Cardenas was perpetrated in furtherance of the activities of the MVS. (See People v. Williams (1997) 16 Cal.4th 153, 191-194 [evidence of defendant’s gang membership was admissible to show motive for killing victim who was dressed like member of rival gang].)
Appellant also argues that the challenged evidence was more prejudicial than probative, and therefore should have been excluded under Evidence Code section 352. Our standard of review of a trial court’s rejection of an Evidence Code section 352 objection is abuse of discretion. (People v. Kelly (2007) 42 Cal.4th 763, 787; People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Appellant argues that the evidence prejudiced appellant by causing the jury to believe that he had the propensity to commit the violent acts with which he was charged, and that he was a danger to society.
The jury was presented with uncontroverted evidence that appellant deliberately shot three bound, unarmed people at close range. Under the circumstances, it is well-nigh inconceivable that any reasonable juror would be improperly influenced by learning that on a previous occasion, appellant was an unarmed, nonviolent participant in a convenience store robbery in which the clerk was not physically harmed. Accordingly, we cannot find that the trial court abused its discretion under Evidence Code section 352 in admitting the challenged prior crimes evidence.
Disposition
The judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.