Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno CountySuper. Ct. No. F05901998-5. Gregory T. Fain, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Jose Francisco Valladares was convicted of the second degree murder of Ray Rodarte (Rodarte) and assault with a deadly weapon against Rodarte’s brother, Fabian Duran (Duran). In addition, the jury found that defendant personally used a knife during the murder of Rodarte and committed both crimes for the benefit of a criminal street gang. Defendant appeals, claiming the evidence is insufficient to support his convictions, the expert’s reliance on hearsay violated his right to confront and cross-examine the witnesses against him, and the trial court erroneously imposed a $10,000 parole revocation fine. Except to remand for clarification concerning fines, we affirm.
FACTS
On the evening of March 11, 2005, a birthday party was held for Duran. Rodarte and Bladimir Urbina exchanged words at the first party. Rodarte was a Sureno gang member and Urbina was a member of a rival gang, the Nortenos. The mother of the person giving the party came home and made everyone leave. The partygoers left and went to a second location to continue the party.
Although there was no testimony that defendant was present at the first party, C and G testified that they rode from the first party to the second party in a car with defendant and others.
There were about 30 people at the second party; most of them were males. Rodarte and Urbina exchanged words at the second party. Rodarte was called a “scrap,” a derogatory term for a Sureno gang member. Urbina, defendant, and others were arguing with Rodarte in the house. Defendant was talking “smack” inside the house.
Several people called Rodarte a scrap. In addition, they yelled to take him down, to kill him, and to get him. Defendant was heard saying that he was “strapped” (a slang term for carrying a weapon), saying, “Let’s get him,” and “Let’s take him down.”
Several females and Duran led Rodarte outside so he could leave. As the females led Rodarte down the street, a group of males exited the house. They followed and continued to yell “scrap,” “kill him,” “get him,” and “take him down” at Rodarte.
The group of males following Rodarte rushed him. Defendant was part of that group. Rodarte started fighting. Duran ran toward the group to help his brother. Rodarte was pushed onto a car.
C was the only witness who could identify the person who stabbed Rodarte. She saw defendant take a knife out of his pants pocket. Defendant was right in front of Rodarte when defendant “launched” his knife at Rodarte. Defendant held the knife in his left hand. The thrust of the knife was slightly up. C was 100 percent sure at trial that defendant stuck a knife in Rodarte’s chest.
Duran was fighting with two males. One of the two had a knife and stabbed him. Duran saw about five members of the group with knives. Someone yelled out that the “cops” were coming, and the fight broke up. Defendant walked away from the fight and said, “Remember who did it. East Side Reedley Norte. Remember who put him down.”
A neighbor heard his dog barking violently. The neighbor ran outside with a bat and saw 10 to 12 people by his car fighting. The group was cursing and yelling “East Side Reedley,” a gang name. The group moved away from the neighbor’s car when he came out with the bat. The fight broke up and he saw four or five of the fighters run to a maroon four-door vehicle.
C testified that as defendant left the fight he held the knife in the air and waved it around. He said to Rodarte, “Remember who brought you down. It was me.”
Rodarte walked away after the fight. He collapsed and died shortly thereafter. Rodarte was stabbed three times. The cause of death was perforation of the heart from a sharp cutting instrument. The wound to his chest was 1-1/2 inches in length and 4-1/2 inches in depth. The cut started at the skin, went through bone and then into Rodarte’s heart. Rodarte also had a stab wound to his left arm and a stab wound to the left side of his back.
G and C were both shown photographic lineups. In the first photographic lineup, they each identified a photograph of defendant’s brother as “Pacman” and as being involved in the fight that evening. After it was learned that defendant’s brother was not present at the party that evening and that defendant’s nickname was Pac or Pacman, another lineup was prepared containing defendant’s photograph. G identified defendant’s picture in the second photographic lineup as a person she saw involved in the fight that evening and thought he was the same person she had identified in the previous lineup. C realized she made a mistake in her identification during the first lineup after she saw the second lineup. She identified defendant’s photograph as Pacman and as the person she saw stab Rodarte in the chest.
Defendant was interviewed at the police station. During the interview he repeatedly denied being at the party that night. After 48 minutes of questioning, he finally admitted being at the scene but claimed he was hit in the back of the head after he exited the house. After he was hit in the back of the head, he got in a car and left. He denied going down the street in the group that followed and then rushed Rodarte.
James Lyman, an expert on criminal street gangs. testified that the East Side Reedley Nortenos is a criminal street gang and that defendant is a member of that gang. He testified that Rodarte was a member of the Surenos, a rival gang of the Nortenos. Lyman testified regarding the predicate crimes and the other elements necessary to show that a gang is a criminal street gang. It was his opinion that the crimes here were committed for the benefit of and in association with a criminal street gang.
Defense
Defendant’s mother testified that Carlos Gonzalez came to her home after defendant was arrested for the murder of Rodarte. Defendant’s girlfriend, Jesenia Becerra, was there and defendant’s mother told her to stay back in the hallway while the mother spoke to Gonzalez. Defendant’s mother testified that Gonzalez told her not to worry--that he killed the guy and he was going to turn himself in. The mother also testified that defendant writes with his right hand.
Becerra testified that defendant was her boyfriend in March of 2005 and is currently her fiancé. She testified that she overheard Gonzalez tell defendant’s mother that he, Gonzalez, was the person who stabbed the guy and if something went bad in court he would turn himself in.
Serena Alvarez attended the party where Rodarte was killed. She went to the party in a red Camry four-door car. She saw a group of men around Rodarte and saw him pushed against the car. She could not see defendant. The group broke up and she went to the car and got in with Amy, the driver. Four males jumped in the car with them. The males were defendant, Juanito, Gonzalez, and a drunken person she could not identify. She said Gonzalez was holding a knife with red liquid on it. He was wiping the knife and said he stuck the victim a “grip” of times.
Alvarez and the others drove to Juanito’s house and went inside. Others came to the house also, and they talked about what had happened. Gonzalez had the knife in the bedroom; he was stroking it and cleaning it.
About two weeks after the murder, Alvarez was with Amy cleaning the Camry. Alvarez found a knife underneath the driver’s seat. She took the knife home and kept it for about a year. She then turned the knife in to a defense investigator. She washed the knife before she turned the knife in. She said she did not turn the knife in earlier because she was afraid.
Rebuttal
When defendant’s mother was interviewed by police, she said that defendant was asleep the night of the murder and there was no way he left the house or she would have heard him.
DISCUSSION
I. Substantial Evidence of Murder
Defendant contends the evidence was insufficient to establish that he killed Rodarte. He claims that the testimony of C was both physically impossible and inherently improbable. In particular, he highlights portions of C’s testimony that did not exactly match the testimony of the autopsy physician. To support his assertion, he points to the fact that no other witnesses positively identified him as the person who stabbed Rodarte, that another man was seen with a knife in his hand, and that C had a motive to lie because Juan Pantoja was implicated as the killer by other witnesses and he was the ex-boyfriend of C’s cousin.
“‘The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.) In considering the evidence in a light most favorable to the judgment we “presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
C testified that she saw defendant remove a knife from the left pocket of his pants and “launch” it into Rodarte’s chest using his left hand. She demonstrated the motion to the jury as a thrusting motion out in front and slightly up. On cross-examination, she was reminded that she told detectives that the knife was launched and then twisted in Rodarte. She then demonstrated what she saw, making the same motion she made during her earlier demonstration and adding a clockwise twisting motion. She testified the twisting occurred after she saw the knife go in. On redirect examination, she clarified that she saw the motion of defendant’s hand; she did not see the motion of the knife.
The physician who performed the autopsy testified that he did not see any evidence of twisting, although he noted twisting can occur without leaving any evidence of twisting in the injury. The physician said the knife wound path was front to back and slightly downward.
The physician noted his description of front to back and downward was based on the universal position of a person in a flat position, it does not take into account that the person could be leaning forward or backward when the wound is inflicted. He also testified that the movement of the body or the knife is a dynamic process and both could be moving at the same time. In that situation, one may or may not see twisting in the wound. He said there was some evidence of twisting in Rodarte’s chest wound. In addition once a knife has gone into a bone there is resistance that can minimize the amount of twisting.
We do not agree with defendant when he states that C’s description of the stabbing was physically impossible. We further find there is nothing in the record to show that a right-handed person is incapable of inflicting a stab wound using his left hand. The stabbing as described by C was not physically impossible. Her testimony, standing alone, was more than sufficient to support the murder conviction.
“‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”…’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
II. Sufficient Evidence of Assault with a Deadly Weapon
“[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Defendant was convicted of assault with a deadly weapon (a knife) on Duran based on the fact that he aided and abetted the assault. Defendant claims that because there was no evidence that he knew prior to the fight that anyone was armed with a knife, all that was shown was that he participated in a fistfight. Defendant relies on People v. Butts (1965) 236 Cal.App.2d 817 to support his position.
We find the answer to defendant’s argument in the case of People v. Montes (1999) 74 Cal.App.4th 1050. In Montes, the defendant claimed his conviction for assault with a semiautomatic rifle had to be reversed because at the time he involved himself in a gang confrontation with a rival gang he did not know that his co-gang member, Cuevas, was armed with a firearm. The defendant in Montes placed reliance on the Butts case just as defendant does here. The appellate court rejected his argument, and we find its analysis precisely on point.
“In Butts, defendants Otwell and Butts were involved in a brawl with a group of strangers. Although the altercation began as a fistfight, Otwell eventually pulled a knife and fatally stabbed one of his foes. The court decided Butts could not be held responsible for the killing under aiding and abetting principles because there was ‘no evidence that [he] advised and encouraged use of a knife, that he had advance knowledge of Otwell’s wrongful purpose to use a knife or that he shared Otwell’s criminal intent to resort to a dangerous weapon.’ (People v. Butts, supra, 236 Cal.App.2d at p. 836.) In other words, Butts was off the hook for the stabbing because he was aware only of a fistfight, not a knife fight. (Id. at p. 837.)
“To the extent Butts requires one accused of aiding and abetting to know of and encourage the perpetrator’s intended use of a weapon, it is out of step with Supreme Court authority. (People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) ‘The only requirement is that defendant share the intent to facilitate the target criminal act and that the crime committed be a foreseeable consequence of the target act. [Citation.]’ (Ibid.)
“Butts is also more than three decades old, a remnant of a different social era, when street fighters commonly relied on fists alone to settle disputes. Unfortunately, as this case illustrates, the nature of modern gang warfare is quite different. When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. Given the great potential for escalating violence during gang confrontations, it is immaterial whether Montes specifically knew Cuevas had a gun.” (People v. Montes, supra, 74 Cal.App.4th at pp. 1055-1056.)
Here it is immaterial whether defendant knew that others had knives when the clash occurred. The assault with a deadly weapon was a natural and probable consequence of the initial confrontation. It was reasonably foreseeable that the confrontation would escalate to an assault involving knives. Substantial evidence supports defendant’s conviction as an aider and abettor of assault with a deadly weapon.
III. Expert’s Reliance on Hearsay
In addition to convicting defendant of murder and assault with a deadly weapon, the jury found that defendant committed the crimes for the benefit of a criminal street gang. Officer Lyman testified as a gang expert. He testified about gangs in general. To show the existence of predicate offenses, necessary to prove the gang enhancement, he utilized court documents to prove the convictions of two East Side Reedley Norteno gang members.
The expert relied on validation memos concerning defendant, and he also had at least one contact with him. Defendant had previously said he was a gang member of the East Side Reedley Nortenos. The expert testified that Rodarte was a member of the Sanger Surenos. On cross-examination, the expert stated that he based his opinion that Rodarte was a validated gang member on an interoffice memo that indicated that while Rodarte was in jail he admitted he was a Sureno member.
Relying on Crawford v. Washington (2004) 541 U.S. 36, defendant claims that it was error for the expert to rely on the validation memos, the interoffice memo, and the court documents to prove the gang enhancements because the expert’s reliance on this hearsay evidence violated defendant’s right to confront and cross-examine the witnesses against him.
In Crawford, the United States Supreme Court held that testimonial out-of-court statements are inadmissible unless the declarant is unavailable and the accused has had an opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. 36.)
Defendant’s argument has been rejected in People v. Thomas (2005) 130 Cal.App.4th 1202, a case that defendant claims in wrongly decided. In Thomas, other gang members told the expert that defendant was a member of a gang. The expert utilized this evidence in reaching his conclusion that the defendant was a gang member. The defendant claimed on appeal that the statements were hearsay and their introduction violated his Sixth Amendment rights as explained in Crawford. The Court of Appeal disagreed. “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citation.]” (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)
Subsequent to the Thomas decision, the court in People v. Ramirez (2007) 153 Cal.App.4th 1422 followed Thomas and rejected the defendant’s argument that the court “denied him his right to confront witnesses when it allowed hearsay testimony about the facts of the predicate crimes.” (Id. at p. 1426.)
We find the Thomas and Ramirez opinions to be well reasoned, and we reject defendant’s suggestion that we disagree with Thomas. In addition, we note that there was an abundance of evidence presented at trial demonstrating the gang nature of the offenses here, and present conduct may be used in determining the group’s primary activities (People v. Sengpadychith (2001) 26 Cal.4th 316, 323); that defense counsel did not object to the admission of the evidence based on Crawford; and it was the defense that brought up the interoffice memo to demonstrate that Rodarte was a gang member.
Defendant has not demonstrated error.
IV. Restitution and Parole Revocation Fines
Penal Code section 1202.4, subdivision (b) requires the trial court to impose a restitution fine unless it finds compelling and extraordinary reasons for not doing so. The fine can range from $200 to not more than $10,000. In addition, pursuant to Penal Code section 1202.4, subdivision (f), the court shall require the defendant to make restitution to the victim for actual economic loss claimed by the victim in an amount to be determined by the court. Under subdivision (f), when the victim has received assistance from the Victim Compensation Program, the court shall order that the restitution be deposited to the Restitution Fund. (Pen. Code, § 1202.4, subd. (f)(2).) Under Penal Code section 1202.45 the court shall assess a parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4.
The probation report recommended that defendant pay a restitution fine of $10,000 in compliance with Penal Code section 1202.4. The report did not specify a subdivision for the section 1202.4 fine. In addition, the report recommended that defendant be ordered to pay a $10,000 parole revocation restitution fine in compliance with Penal Code section 1202.45.
Attached to the probation report was a report from the district attorney’s office regarding victim compensation. This report recommended that defendant pay a restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and direct restitution to the Restitution Fund under subdivision (f)(2) of the same section in the amount of $5,000. The $5,000 was the amount paid by the Victim Compensation Government Claims Board for funeral and burial expenses. In addition, regarding the victim Duran the district attorney asked that restitution be payable to the restitution fund under Penal Code section 1202.4, subdivision (f) in an amount to be determined for possible future expenses and that a restitution fine be imposed under Penal Code section 1202.4, subdivision (b).
The court directed the payment of fines as follows: “Pursuant to Penal Code Section 1202.4, there is a restitution fine of -- I believe it should be $10,000. I’ll allocate $5,000 directly though -- you know, I don’t
“Mr. Romanacce [prosecutor], I think it should be to restitution fund. I’ll make it $5,000 under Penal Code Section 1202.4(f)(2) and for each count. So it’s a total of $10,000 as recommended in the probation report. But I’m making it specifically to (f)(2).”
The abstract of judgment lists a $5,000 restitution fine pursuant to section 1202.4, subdivision (b), a suspended $10,000 parole revocation restitution fine pursuant to section 1202.45, and a $5,000 restitution fine pursuant to section 1202.4, subdivision (f).
Defendant contends that the imposition of a $10,000 fine under section 1202.45 was erroneous because it exceeded the fine imposed under section 1204.4, subdivision (b).
Respondent asserts that the record is ambiguous and unclear and the matter should be remanded back to the trial court for clarification.
We agree with respondent. The record is unclear as to what fines the court was imposing and under what section and subdivision. The court never mentioned Penal Code section 1202.4, subdivision (b), yet it is required to impose fines under that section unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. We cannot discern what the court intended when it imposed the restitution fines and parole revocation fines; thus the matter must be remanded to the trial court for clarification.
DISPOSITION
The matter is remanded to the trial court for clarification concerning the imposition of restitution and parole revocation fines. In all other respects the judgment is affirmed.
WE CONCUR: WISEMAN, J., LEVY, J.