Opinion
B229387
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS ENRIQUE YSLAS, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA335428)
APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Luis Enrique Yslas appeals from the judgment entered following his conviction by jury of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true firearm (§ 12022.53, subds. (b)-(d)) and criminal street gang allegations (§ 186.22, subds. (b)(1)(C) & (b)(4)). The court sentenced defendant to 25 years to life, plus a consecutive term of 25 years to life for the firearm enhancement.
All further undesignated statutory references are to the Penal Code.
Defendant contends that (1) the judgment should be reversed because the trial court erred in admitting evidence of a gun found in defendant's home which was not the weapon used in the murder, (2) there was insufficient evidence to support the jury's true finding on the allegation that the murder was committed to benefit a criminal street gang, and (3) expert opinion testimony should not have been admitted on the subject of criminal street gangs where the prosecutor described the gang evidence as being within the common sense understanding of the jury. We find no merit in defendant's contentions and therefore affirm the judgment.
FACTUAL BACKGROUND
I. The Prosecution's Case
A. The Shooting
The victim in this case was Moises Salinas (hereafter Moises). Luis Diaz, a marijuana dealer who purchased marijuana from Echo Park gang members for resale to others, testified he was acquainted with both the victim and the defendant. Defendant was a member of the Echo Park gang, and was known by the monikers "Boxer" and "Lefty." Diaz had also met Roland Vega on a few occasions; Vega was with the victim when the shooting occurred.
On the day of the murder, November 21, 2007, defendant, Joe Coreas, and another man known as "White Boy" were at Diaz's apartment, playing chess and smoking marijuana. Diaz received a call on his cell phone and said he was going downstairs to sell marijuana. Defendant left with him, saying he was going home. Coreas saw that defendant was carrying a black beanie in his hand and had a gun in his waistband.
Initially, Diaz did not know the identity of the person who had called asking to buy marijuana. When he and defendant reached the sidewalk outside, Vega was standing outside his car, and defendant asked him where he was from, while reaching for his waistband. Diaz told defendant Vega did not belong to a gang. Defendant said to Vega, "I know you are cool, but this fool is not." Defendant continued walking toward Vega's car as Diaz and Vega began talking. As he approached the car, defendant said, "What's up, what's up," in an aggressive, challenging manner. Defendant fired four or five gunshots into the front passenger side of Vega's car, where the victim was sitting.When the gunshots were fired, Diaz and Vega ducked down. Defendant fled. Vega drove the victim to a hospital, but it did not have an emergency room. Paramedics came and transported the victim by ambulance to another hospital. The victim died of multiple gunshot wounds. Four bullets were recovered from his body and given to the police.
Coreas testified that about 50 seconds after Diaz and defendant left the apartment, he heard about four gunshots.
At some point, Vega went back to Diaz's apartment. Diaz apologized for what had happened and gave Vega some marijuana.
B. The Police Investigation
After police responded to the medical center where Vega took the victim, Vega accompanied the police to the location of the shooting. A resident who lived nearby gave the police shell casings he had found in the street.
Vega later said regarding a photograph of defendant that the person depicted looked like the person who shot the victim. Diaz identified a photograph of defendant as being the shooter.
Los Angeles Police Detective Gilbert Alonso interviewed the victim's brother, Vincent Salinas, in December 2007. Salinas told Detective Alonso that three to six months prior to the shooting, he had seen a man confronting his brother Moises at gunpoint. Salinas ran toward Moises and the gunman, but the gunman got into a car and left. Moises told Salinas that the gunman was "Lefty" from "Echo Park." Salinas identified defendant in a photograph. He wrote on the photograph that it "'looks like Lefty from E X P,'" referring to the Echo Park gang. Salinas also wrote, "'When I used to go and buy weed from Louie on West Kensington, I have saw Lefty point a gun at my brother Moises on his forehead six months ago, near Sunset and Glendale.'" At trial, however, Salinas testified he did not recall telling the police about seeing defendant pointing a gun at his brother. He also denied telling police that someone named "Joe" had told him that Lefty shot Moises. Salinas generally denied having any knowledge regarding defendant or his brother's murder.
Jennifer Zamora, the victim's sister, said she had been walking near Echo Park when defendant approached and told Moises that he should not be at the park, as defendant had previously told him. Zamora did not see a gun, but saw the outline of one in the front waistband of defendant's pants when he lifted his shirt and told Moises to take a walk with him. Moises declined, and Zamora tried to intervene but defendant told her to stay out of it. Zamora feared they were going to be attacked. Defendant accused Moises of being a gang member known as "Mojo" and of writing graffiti on the walls. Defendant told Moises to stop crossing out Echo Park gang graffiti and writing his own name. Moises denied doing so. Zamora thought they were going to be jumped, but defendant's friends drove up and defendant left with them. Zamora said Moises was known as "Pounder." She did not think Moises was involved in a gang, although he was friends with people who looked like gang members. Zamora had seen the name "Lefty" in Echo Park gang graffiti that was located near where Moises lived.
Police arrested defendant on January 23, 2008, and executed search warrants at defendant's home. They recovered a .40 caliber semiautomatic firearm and its magazine from the bottom drawer of a nightstand inside a closet. The magazine contained nine hollow point bullets. They also recovered 18 additional .40 caliber rounds, six of which were hollow points. Defendant had a cabinet on which photographs were placed, and which appeared to be a sort of shrine, with the words "rest in peace" and "in loving memory," along with some religious articles. The name Rudy Anthony Castillo appeared on the shrine, with a date of birth and date of death. There was also a brown paper bag which contained a large beer can on which "'Rest in peace, Nesio,' E P" and "'Lefty'" were written in graffiti.
Los Angeles police criminalist Stella Chu examined the bullets and fragments recovered from the victim's body, a bullet recovered from Vega's car, five .40 caliber cartridge cases, and a firearm. The five cartridge cases had been fired by one .40 caliber firearm. The expended bullets had been fired from one firearm and were hollow point bullets. Chu could not say whether the bullets had been fired from the same gun as the cartridge cases. Neither the bullets and bullet fragments, nor the cartridge cases, had been fired from the firearm Chu examined (the gun found at defendant's home).
C. Gang Evidence
Coreas was reluctant to testify because he feared retaliation, and said he did not feel comfortable returning to the Echo Park area after testifying. He did not wish to tell police that a photograph they showed him was of defendant. Vega was also fearful of returning to the Echo Park area. He said it was taboo to testify against a gang member and he was risking his life by doing so.
Diaz did not tell police right away who the shooter was because he was afraid. Defendant saw Diaz at the park later on the day of the shooting and told Diaz, "You didn't see nothing. Right[]?" Defendant went to Diaz's apartment the next day to check on Diaz. Diaz believed that the Echo Park gang had put a "green light" on him, meaning gang members would "come to get [him]" for testifying against defendant. A member of the Echo Park gang saw Diaz testifying in an earlier proceeding in this matter and made a slashing motion across his throat. Diaz said, "on a case like this, I'm nervous. . . . I'm dead already."
Los Angeles Police Detective Michael Chang testified that he was familiar with the Echo Park gang, which had over 100 members. Chang said the primary activities of the gang included murders, assaults, weapon use, extortion, robberies, narcotics sales, public vandalism, and graffiti. Chang said that gang members use graffiti to demonstrate their willingness to break the law on behalf of the gang, advertise their gang, mark their territory, and disrespect other gangs and their members. Rival gangs frequently had disputes over gang territory, and gangs often would cross out other gangs' graffiti. Chang knew the victim as "Pounder," a member of the Crazy Riders gang. Chang said defendant admitted to being "Lefty" from the Echo Park gang. Chang said the fact that Lefty had twice approached the victim at gunpoint and claimed membership in Echo Park, and had gang paraphernalia in his home (including the shrine mentioning Rudy Castillo, who Chang knew to have been a member of Echo Park who was murdered), were indicative of his membership in the Echo Park gang.
Asked to assume that a member of the Crazy Riders gang had been confronted twice at gunpoint by a member of the Echo Park gang regarding graffiti being crossed out, and a few months later the Echo Park gang member shot the Crazy Riders gang member multiple times as the latter sat in a car outside a drug dealer's apartment, Chang was asked whether, in his expert opinion, the shooting was done for the benefit of the Echo Park gang. Chang answered in the affirmative, explaining that the victim had disrespected defendant by not backing down when defendant confronted him, and shooting the victim was pay back. Such crimes created fear and intimidation in the community and resulted in increased status for the gang and the perpetrator. Fear of the gang was useful to the gang to prevent citizens from reporting gang activity to the police.
II. Defense Evidence
The office manager for defendant's employer testified regarding the hours defendant worked between November 12, 2007, and November 26, 2007. Defendant's supervisor stated that defendant's time card for November 21, 2007, the day of the shooting, indicated that defendant left work at 3:00 p.m. However, the witness acknowledged that defendant could have left earlier. In fact, the supervisor could not say where defendant was on the afternoon of November 21.
Coreas testified the shooting occurred in the afternoon. Diaz said the incident took place sometime during daylight hours.
DISCUSSION
I. The Admission of the Firearm Did Not Constitute Prejudicial Error
Defendant contends that the judgment of conviction must be reversed because the trial court committed prejudicial error by permitting evidence to be admitted regarding the firearm recovered from his home even though it was not the murder weapon. He acknowledges that his trial counsel failed to object to admission of this evidence, but argues that his counsel provided constitutionally deficient representation by not doing so. We conclude that regardless of whether the evidence was relevant, its admission constituted harmless error. Defendant has not established that admission of the evidence was prejudicial because he has not shown that the trial was fundamentally unfair or demonstrated a reasonable probability that the verdict would have been more favorable absent the purported error.
Respondent contends that defendant, by failing to present any argument supported by authority on the subject, forfeited any claim of error as to admission of evidence regarding the bullets found in defendant's home. Whether we consider admission of the ammunition evidence, the result is the same because the evidence was not prejudicial.
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As previously noted, the jury heard testimony that police recovered from defendant's home a .40 caliber firearm and its magazine, along with numerous hollow point bullets and regular bullets. A police criminalist examined the bullets and fragments recovered from the victim's body and Vega's car, five .40 caliber cartridge cases found at the crime scene, and the firearm found in defendant's home. The expended projectiles were hollow point bullets and were the same size as the cartridge cases. However, neither the bullets nor the cartridge cases had been fired from the firearm recovered from defendant's home.
Defendant contends that it was error for the trial court to allow the firearm to be admitted into evidence because it was irrelevant. He cites People v. Riser (1956) 47 Cal.2d 566, 577 (Riser) (disapproved on another ground in People v. Chapman (1959) 52 Cal.2d 95, 98), as follows: "When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]"
Respondent counters that the evidence was relevant as tending to establish defendant's identity as the gunman, based on his affinity for using .40 caliber, hollow point bullets. To wit, in his closing statement, the prosecutor told the jury: "We know that on the day of the murder, he's got a 40-caliber weapon, hollow-point tips, and we know that, two months later, although he apparently ditched the actual murder weapon, he replaces it. Apparently, he's a fan of the 40-caliber hollow-point tips, because that's what he still has with him, a 40-caliber hollow-point tip." Respondent argues defense counsel's failure to object to admission of the firearm evidence at trial forfeits the issue on appeal.
Defendant contends that even if we conclude that he forfeited his claim of error, the claim is still cognizable on appeal under the rubric of ineffective assistance of counsel. We conclude, however, that defendant has not demonstrated ineffective assistance of counsel. "'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]'" (In re Avena (1996) 12 Cal.4th 694, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) However, the assessment of prejudice is not "solely one of outcome determination. Instead, the pertinent inquiry is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' [Citation.]" (Avena, supra, 12 Cal.4th at p. 721.) "[T]he petitioner must establish 'prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.'" (In re Clark(1993) 5 Cal.4th 750, 766.) Where a defendant fails to show prejudice, a reviewing court may reject a claim of ineffective assistance of counsel without reaching the issue of deficient performance. (Strickland, supra, 466 U.S. at p. 697.)
We conclude that it is unnecessary for us to decide whether the firearm evidence was irrelevant and improperly admitted, such that counsel's performance was deficient. Even if we were to conclude that the admission of the evidence was an abuse of the trial court's discretion, any error in that regard was harmless under both state (People v. Watson (1956) 46 Cal.2d 818, 836) and federal (Chapman v. California (1967) 386 U.S. 18) harmless error analyses because the admission of the evidence was not prejudicial.
Defendant merely contends the eyewitness (presumably Diaz) was not a credible person and had been smoking drugs, and "[t]he balance of the case against [defendant] was premised solely on [his] membership in a gang, and the claim by the victim's sister that [defendant] had threatened Moises about a half a year prior to the shooting." In fact, the evidence of defendant's guilt was overwhelming without regard to the firearm evidence. Vega and Diaz witnessed the shooting and both unequivocally identified defendant as the perpetrator. Diaz was well acquainted with defendant and identified defendant as the shooter even in the face of defendant's intimidation after the shooting. Coreas corroborated the fact that defendant had a gun in his waistband when he left the apartment with Diaz, and less than one minute later, Coreas heard gunshots. Defendant had threatened the victim at gunpoint on two prior occasions, and the two were members of rival gangs engaged in a dispute over graffiti. On this record, defendant cannot establish prejudice.
II. The True Finding on the Gang Enhancement Allegation Was Supported by Substantial Evidence
Defendant contends there is insufficient evidence to show that the murder was committed for the benefit of, at the direction of, or in association with the Echo Park gang, or that defendant specifically intended to promote, further, or assist in gang-related conduct. (§ 186.22, subd. (b)(1).) He contends the testimony of the prosecution's gang expert was the only evidence offered to support the gang allegation, and "there was no specific evidence upon which Chang relied to conclude the shooting was committed for the benefit of the gang other than the fact [defendant] was a member of the gang, and the crime was committed." We disagree.
There was ample evidence to support the true finding on the gang allegation. At the time of the murder, defendant was associating with Diaz, who was selling marijuana supplied by the Echo Park gang. Defendant was armed and immediately challenged Vega regarding his possible gang affiliation by asking, "Where are you from?" After Diaz said Vega did not belong to a gang, defendant's attention turned to the victim. Defendant said words to the effect that Vega was "cool, but this fool [Moises] is not." He then began firing into the car, shooting the victim numerous times at close range. Defendant had threatened the victim twice within the preceding months, accusing him of marking over the Echo Park gang's graffiti. The victim was a member of a rival gang, the Crazy Riders. Defendant warned the victim not to come to Echo Park (his gang's territory), but the victim disrespected defendant by refusing to back down.
Chang testified that rival gangs frequently had disputes over gang territory, and gangs often would cross out other gangs' graffiti as a means of showing disrespect and claiming territory. Asked to assume that a member of the Crazy Riders gang had been confronted twice at gunpoint by a member of the Echo Park gang regarding graffiti being crossed out, and a few months later the Echo Park gang member shot the Crazy Riders gang member outside a drug dealer's apartment, Chang opined that the shooting was done for the benefit of the Echo Park gang. Chang testified that exacting revenge in this manner created fear and intimidation in the community and resulted in increased status for the gang and the perpetrator. Fear of the gang was useful to the gang to prevent citizens from reporting gang activity to the police. The truth of this statement was demonstrated by the fact that many of the witnesses were fearful about testifying and felt they could not return to the Echo Park area because their lives would be at risk. They managed to testify, but they were demonstrably frightened about retaliation for having done so. This evidence was undoubtedly sufficient to support the true finding as to the gang enhancement.
III. The Court Properly Allowed Expert Opinion Testimony Regarding Gangs
Finally, defendant contends that Chang should not have been allowed to testify as a gang expert because the prosecutor stated that the expert gang evidence related to matters of common sense, and was therefore outside the permissible scope of expert testimony. We disagree.
During opening statement, the prosecutor told the jury: "And you may or may not know just from common experience, but we will have an officer, Officer Michael Chang, and he's worked gangs for a couple years, and he will tell you about gang culture, and why is it important for gangs to have territory, why is it important for them to defend that territory, and how it's an affront for one gang to start crossing out another gang graffiti. I think it's kind of to the point of common sense, but we will hear that from Officer Chang." The prosecutor stated again at the conclusion of the case, "And so it's kind of common sense, I think, at this point, in the society that we live in, about how gangs create that fear and why people, gangs, proliferate."
An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) Expert testimony "concerning the culture, habits, and psychology of gangs" meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez); see Gardeley, supra, 14 Cal.4th at p. 617.) A properly qualified gang expert may therefore, where appropriate, testify to a wide variety of matters, including whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gang's culture, habits, size, composition, existence, territory, and primary activities; a defendant's gang membership; rivalries between gangs; and gang graffiti, tattoos, hand signs, and attire. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
A gang expert's testimony may properly be admitted to prove motive and intent. (See People v. Carter (2003) 30 Cal.4th 1166, 1196; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the "motivation for a particular crime, generally retaliation or intimidation" and, as relevant here, "whether and how a crime was committed to benefit or promote a gang." (Killebrew, supra, 103 Cal.App.4th p. 657.) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury's common experience. (Valdez, supra, 58 Cal.App.4th at pp. 507-509.)
Here, Chang offered appropriate expert testimony that, taken as a whole, provided the jury with information that surpassed the knowledge commonly possessed by jurors based on personal experience. The prosecutor's assertion that the gang expert's testimony would resonate with the jury as a matter of common sense could not alter the fact that Chang's testimony was a proper subject for which expert opinion is commonly admitted. Courts have repeatedly found the admission of similar examples of expert testimony proper. (See, e.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209 [expert could properly opine that the defendant committed the shooting to reestablish and bolster his reputation within the gang, reestablish the gang within the community, and send a message to the community and rival gangs]; Gardeley, supra, 14 Cal.4th at p. 619 [approving gang expert's testimony that hypothetical attack based on the facts of the case was a classic example of gang-related activity, in that gangs rely on such assaults to frighten residents].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
WILLHITE, Acting P. J.
MANELLA, J.
SUZUKAWA, J.