Opinion
B224529
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ESEQUIEL ZAMORA et al., Defendants and Appellants.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Esequiel Zamora. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Canales. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. BA349543 & BA305051
APPEALS from judgments of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed as modified.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant Esequiel Zamora.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Canales.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Esequiel Zamora and Edgar Canales timely appealed from their convictions. An information charged them with: count 1 -murder; counts 2 and 3 -attempted murder; count 4 -conspiracy to commit murder; and count 5 -criminal street gang conspiracy. As to counts 1 through 4, the information alleged the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang. The information also alleged firearm enhancements. At the close of the prosecution's case, pursuant to defendants' Penal Code section 1118.1 motion, the court dismissed count 5, the gang allegations and the gang-related firearm allegation.
All statutory references are to the Penal Code.
The jury found Zamora guilty as charged and the murder and attempted murders were willful, deliberate and premeditated. The jury found Canales guilty as charged, but found not true that the murder and attempted murders were willful, deliberate and premeditated. As to Canales, the jury found true the personal firearm discharge allegations. The court sentenced Zamora to a total term of 36 years and 4 months to life and sentenced Canales to a total term of 49 years and 4 months to life.
Defendants, who join each other's arguments, contend the court's improper admission of gang evidence violated their right to due process. We affirm as modified.
FACTUAL BACKGROUND
I. Prosecution Case
A. Luis Mazariegos
Luis is the older brother of the murder victim Ivan. On November 23, 2008, Luis and his family lived on the third story of an apartment building located on South Main Street in Los Angeles. Luis had just turned 18, and his sister Jackie was 15 years old. Luis was a member of the Easy Riders street gang.
At the time, Easy Riders got along with Wild Boys and Playboys. Wild Boys got along with Playboys. Luis did not know if Playboys got along with Carnales. Playboys did not get along with Ghetto Boys. Luis did not know if Carnales got along with Wild Boys or Ghetto Boys. There was no conflict between Carnales and Easy Riders. Luis, an Easy Rider, had shaken hands with Zamora, a Wild Boy, a few times prior to November 23.
On November 23, at about 3:00 or 3:30 p.m., Luis was at his apartment getting ready for work. Luis saw a white car parked at the intersection of Main and 70th Streets. Zamora, who appeared to be angry, exited the car and pointed at Luis. Luis was "in shock" and did not know what the problem was. Zamora started writing graffiti on the wall. With a spray can, Zamora crossed out Ghetto Boys graffiti and painted Wild Boys and Playboys graffiti. Luis understood that meant "there's a big conflict coming up."
Luis went to work and returned home about 8:30 p.m. Several people were at the apartment, including his mother, Jackie (his sister) and two of her friends, his cousins Fredy and Carlos Menendes, Fredy's friend Gilbert Hinojosa, Ivan, and Ivan's friend Tootie. Luis did not know if Tootie, Fredy or Carlos were gang members. Luis, who was outside talking to his girlfriend, heard loud music and saw the white car approaching. Luis tried to end the conversation with his girlfriend quickly.
About 11:15 p.m., Luis was lying on the couch inside the apartment. Fredy, Gilbert, Carlos and Ivan were talking with Luis. Tootie was outside on the porch. Fredy, Carlos and Gilbert went outside. Just before the shooting, Ivan told Luis to be careful and, "[I]t's your fault, man, they're out there in the white car. They won't leave you know."
Luis heard shots. Ivan said, "'They got me. They got me.'" Ivan fell and bled from his mouth. Luis ran outside and screamed. Luis tried to make his way down, but was stopped by friends and family. Luis saw four or five people running on Main toward 69th Street. Police showed Luis a six pack photo lineup from which he identified Zamora.
There was a wall on the intersection across from Luis's apartment covered by gang graffiti; the wall was visible from the apartment. The graffiti on the wall included: (1) "WBS," which stood for Wild Boys; (2) "GBZ" or "GBZ2," which stood for Ghetto Boys; and (3) "PBS," which stood for Playboys. There was writing, including a squiggly line, on top of the Ghetto Boys graffiti, which indicated the gang that wrote the graffiti on top was saying "F" the Ghetto boys. That writing also indicated a conflict between Wild Boys and Ghetto Boys. A gang writing on top of another gang's graffiti is a sign of disrespect.
B. Gilbert Hinojosa
Hinojosa, who was on the porch with Fredy, Tootie and Ivan, saw three or four people directly across from him on the other side of the street; the people looked like they were in their early to mid 20's. One shot in Hinojosa's direction. Hinojosa did not hear anything being said prior to the shooting. Ivan was hit by a bullet; Hinojosa tried to help by giving Ivan CPR, but Ivan died.
Prior to the shooting, Hinojosa had seen a white car pass by. Luis told Hinojosa and the others to come closer to the apartment.
After the shooting, Hinojosa spoke to the police and gave them descriptions as best he could of the four men he had seen walking down the street.
C. Melvin Kidd
Kidd was know as "Tootie." At trial, Kidd denied he knew Ivan and denied ever being at the apartment or on the balcony when Ivan was shot. Kidd did not want to testify at trial.
When Detective Thompson interviewed Kidd on November 24 and 25, the interviews were recorded. The interviews were played at trial. Kidd identified Zamora from a six-pack photo lineup and identified Luis Velez from another photo lineup. Thompson drew a map, and Kidd placed an "X" on the map where the shooter was standing and drew lines where he had seen graffiti.
D. Jackie Mazariegos
Around 11:20 p.m., Jackie was walking to the apartment with her aunt and cousin Carlos. Jackie saw two "guys" at separate corners of the intersection of Main and 70th Streets and three people in the street. The two guys at the corners wore hooded sweatshirts. All five were looking around. Jackie thought the five guys were going to tag, i.e., write graffiti. The two guys on the corners met up with the three guys in the street. One of the five guys pulled out a silver gun and fired at Jackie's apartment. No one said anything prior to the shooting. The five guys ran toward Jackie, and she ran toward them and screamed. The five guys then turned and ran.
One of the five guys, later identified as Zamora, looked familiar to Jackie because he was wearing a hat she recognized; Zamora "always [wore] the same hat." The hat looked like a baseball hat, but had no label and had a bit of paint on it.
Jackie also recognized Zamora from an incident two months prior to the shooting. Jackie and Ivan were at the liquor store where she heard Zamora tell Ivan you, "better watch it, you shouldn't kick it with the wrong people or he would get it too." Ivan said, "'Whatever.'" Jackie knew Ivan hung out with Ghetto Boys gang members. Jackie did not know Ivan to be in a gang. Jackie had seen Zamora with a "WBZ" tattoo, which stood for the Wild Boys gang. Jackie understood Zamora to be telling Ivan to stop "kicking it" (i.e., hanging out) with the wrong people or something bad was going to happen to Ivan. Jackie identified Zamora in a six-pack photo lineup as the person who had threatened Ivan at the liquor store.
Prior to the shooting, when it was dark outside, Jackie had seen a white car drive by several times. Two people were in the car; an older man with a mustache and a "really young" male.
E. Efren Gutierrez
Gutierrez, who was 17 years old at the time of the shooting, had known Zamora for almost two years and Canales for a month. Zamora lived out of his car. At trial, Gutierrez denied he knew Wild Boys to be a gang, but admitted he had told the police that Zamora was from the Wild Boys. Gutierrez admitted he testified at the preliminary hearing that Wild Boys was a gang. Gutierrez testified he did not think Canales was in a gang, but admitted he told the police Canales was from Carnales and testified at the preliminary hearing that Canales was in a gang.
Zamora was almost 28 years old, and Canales was 15 years old.
On November 23, prior to the shooting, Gutierrez was at his aunt's house on 67th Street near Main. Defendants and Luis Velez (Gutierrez's cousin) were also there. In the afternoon, Gutierrez and defendants went to a liquor store and had a homeless person buy them a bottle of vodka.
Back at the aunt's, Zamora talked about "whacking" or crossing out another gang's graffiti on the wall on the corner of 70th and Main. Canales was "too drunk" to talk about whacking. Zamora left with Canales and Jorge Renteria (Gutierrez's cousin). Gutierrez stayed at his aunt's house. Canales was in the back seat of Zamora's car. Gutierrez did not know if Zamora actually did the whacking. Gutierrez told the police Zamora crossed out the letters "GBZ," which stood for the Ghetto Boys.
Defendants and Renteria returned. Canales stayed in the back seat of the car. Zamora said he wanted to go and "dump," meaning shoot someone. Zamora said he had just finished crossing out graffiti. Gutierrez testified at the preliminary hearing that Zamora said, "'We should go dump at those MFers.'" Zamora also said, "'I don't give an F. That's my Wild Boys gang. I'll go dump at them.'" Gutierrez said they did not have any guns so they could not do anything. Gutierrez asked Zamora if he had a gun, and Zamora said no. Gutierrez told Zamora to pull up his shirt and searched Zamora, but did not find any weapon. Gutierrez did not search anyone else for a gun.
Gutierrez, Velez and defendants left to get food. The group walked down 69th toward Main. As the men got to Main, they separated with defendants walking ahead of Gutierrez and Velez about 20 feet. When the group got near Main and 70th, Gutierrez heard a shot and ran. Gutierrez heard four or five additional shots.
Gutierrez testified he did not hear anyone say anything before the shooting. Gutierrez admitted that at the preliminary hearing, he testified Canales said, "'Should I do it already?'" or "'Should I dump already?'" Zamora responded, "'Well, handle it, Perrito.'" "Perrito" means "homie" or "little brother." Gutierrez admitted he told the police about those statements.
At the preliminary hearing, Gutierrez testified he saw Canales extend his hands and point them at the balcony of the apartment. Gutierrez admitted he testified at the preliminary hearing and he told the police that Canales had a gun at the time of the shooting.
Gutierrez testified at the preliminary hearing and trial that the Wild Boys and Playboys got along. Zamora told Gutierrez that Easy Riders and Ghetto Boys got along, but he (Zamora) had a problem with Easy Riders and Ghetto Boys as Easy Riders and Ghetto Boys had dumped on him and he had dumped back.
A bench near the house of Gutierrez's aunt had graffiti, including his name and "PBS," but none of it was crossed out.
Zamora had Wild Boys tattoos on his back, arms and left leg.
On November 24, the police detained Gutierrez, Canales, Ruben Renteria (the brother of Jorge) and Velez; they were in a car with Gutierrez driving. In separate lineups, Gutierrez identified Zamora by his gang moniker and identified Canales as the person who had "dumped" the night before.
Gutierrez denied he was a member of the Playboys even though the prosecutor introduced photos showing him "throwing" Playboy gang signs and in the company of Playboy gang members. When police detained Gutierrez, they found Playboys gang-related material on the back seat of his car.
F. Crime Scene and Investigation
Police located shell casing across the street from where the victim was shot. The cause of Ivan's death was a single gunshot to the chest. The gun was never recovered.
Zamora was arrested about 8 a.m. the morning after the shooting in a white car. Police found a can of black spray paint on the front seat of Zamora's car.
G. Gang Expert
Officer Christian Carrillo testified as the gang expert about his background and gang culture.
Respect was everything in gang culture. If a gang was not respected or feared, it would be seen as weak. A gang built its reputation by committing acts of violence. If a gang was feared, it would cause people to be afraid of calling the police and would allow a gang to do what it wanted without fear of being punished. A "snitch," someone who cooperated with law enforcement, could be killed. Gang members would not snitch on a rival; gangs preferred to "handle business" on their own.
Gangs are very territorial and claim a particular area and protect it. Gangs control drug sales and commit most of the street robberies and burglaries in their area. Gang rivalries occurred. Typically, rivalries are caused by disrespect, such as crossing out graffiti or going into a rival's territory. Different gangs associate with each other.
Carrillo was familiar with gang graffiti. A gang usually used a series of letters, a character or initials to represent itself. Graffiti was important in gang culture; it was how gangs marked their territory. Graffiti also indicated who were members of a gang and their monikers (nicknames), who were allies and who were enemies. "Crossing out" typically occurred when a gang member spray painted his gang's name on top of another gang's graffiti. Crossing out showed a rivalry between gangs. It was common for gang graffiti to be written over or crossed out. For one gang to write over or cross out another gang's graffiti was a sign of disrespect.
Officer Carrillo was familiar with the Carnales street gang. The crime scene was not part of Carnales's territory. Carnales's rivals included Easy Riders and Ghetto Boys. Carnales's common name was Carnales or Carnales 13. The number "13" showed Carnales's allegiance to the Mexican Mafia, a prison gang that controls almost every Hispanic gang south of Bakersfield, and that it had the backing of that prison gang. Carnales's common symbols were "CXL" and "CXLC." The primary activities of Carnales were murders, robberies, narcotic sales and weapons violations. Court records showed members of Carnales committed sale of a controlled substance in 2005 and a robbery in 2002.
Carrillo knew Canales was a member of Carnales; Canales had admitted to the police he was a member and he had Carnales tattoos.
The Wild Boys gang claimed territory which included the crime scene. Wild Boys' common signs were "WBS" or "WB." Wild Boys were allies with Carnales. Zamora had Wild Boys tattoos.
The crime scene was not in the area claimed by Playboys. The Playboys were a much more powerful gang than the Wild Boys. The Playboys' common signs were "PBS" or the Playboy bunny sign. The Playboys were allies with Carnales and Wild Boys. Gutierrez and Velez were members of Playboys.
The Ghetto Boys' common sign was "GBZ." The Ghetto Boys' territory did not include the crime scene.
The Easy Riders' common sign was "Easy R" or "ERS." Easy Riders and Ghetto Boys were allies. Ghetto Boys and Playboys were rivals.
Graffiti on the wall across from the shooting scene included large letters spelling out "GBZ" for Ghetto Boys. There was a "two seven" after the GBZ, indicating the 27th Street clique of the Ghetto Boys gang. That graffiti had been crossed out. Right below that cross out was "WBS 13" and "PBS," which showed an alliance between those two gangs and that those two gangs were feuding with Ghetto Boys.
Graffiti on a bench in the area included: (1) "Play" on one leg, "boys" on another leg, and "PBS" on the bench; (2) gang monikers, including the monikers of Canales, Zamora, and Gutierrez ("Smalls," "Smurf," and "Lil Crook"); (3) a Playboy bunny sign; (4) "Wild Boys 13"; and (5) "CLX3" indicating Carnales 13. Based on that graffiti, Carrillo opined there was an alliance among Playboys 13, Wild Boys 13 and Carnales 13.
Given a hypothetical based on the facts of this case, Officer Carrillo opined that such a shooting was committed to benefit a gang by creating fear in rival gangs and that it would benefit the gangs to which the perpetrators belonged by increasing their prestige in the street. The fact the defendants were members of different gangs showed their alliance against their rival.
Carrillo also opined that Kidd was "very scared" to testify and feared retaliation because he had seen a killing and did not want to be the victim of a murder.
II. Defense Case
No witnesses testified for the defense.
DISCUSSION
I. Gang Evidence
Appellants contend the admission of gang evidence violated their right to due process because it was highly inflammatory and irrelevant to the issues in the case. Appellants further contend that the court erred in denying the pretrial motion to bifurcate the gang evidence because the evidence was insufficient to prove the gang conspiracy count and the gang related allegations.
A. Procedural Background
Prior to trial, Zamora's counsel filed a motion to bifurcate the gang allegations on the ground those allegations were unduly prejudicial and irrelevant to guilt on the underlying charges. Counsel argued there was no evidence the shootings were gang-motivated. On March 16, 2010, the court considered the motion. Zamora's counsel submitted on the written motion, and Canales's counsel joined that motion. The court summarily denied the motion.
Zamora also filed a motion to exclude or limit the gang expert's testimony. The court also heard that motion on March 16. Zamora's counsel noted that in order to prove the gang enhancement, the prosecution was required to prove a pattern of criminal activity and that the defense had not received any information about what incidents or activities the prosecution was going to rely upon to establish a pattern of criminal activity. Zamora moved to exclude the use of his prior conviction as a predicate act on the ground it was more prejudicial than probative. Counsel stated that the only other predicate act the prosecution had indicated it intended to use was a conviction of Zamora's brother.
The court asked the prosecutor to explain on which predicate acts she intended to rely. The prosecutor indicated she was going to rely on the two predicated acts presented at the preliminary hearing, including a conviction of Zamora. The court asked the prosecutor to find another conviction to use as a predicate act, and she indicated she would "do [her] best" to find another one.
On March 22, Zamora's counsel moved to exclude any of Zamora's prior convictions or bad acts, stating there were "some foundational issues as to the predicates and the primary acts of the gang" that needed to be addressed before the gang expert testified.
On March 24, before Officer Carrillo, the prosecution's gang expert, testified, the court held a hearing out of the jury's presence to "see what the parameters of the objections and so on are" regarding the expert's testimony. Zamora's counsel argued that as to the "primary activity" and "pattern of gang activities" elements and the predicates to prove the pattern element, Carrillo's testimony could not be based on hearsay.
The court asked the prosecutor which specific gangs Carrillo would testify about. The prosecutor stated Carrillo was a Carnales street gang expert and would mention the Wild Boys, Playboys, Ghetto Boys and Easy Riders. The court suggested the prosecutor, as part of qualifying Carrillo as an expert, have Carrillo explain the basis of his knowledge of the gangs he would testify about. The court stated the expert could give an opinion based on hearsay.
Zamora's counsel responded he was not objecting to Carrillo's expertise, but that the prosecutor had to prove a pattern of criminal activity in order to prove the existence of a gang and had to use predicates to prove that pattern. The court noted that in order to prove that element, prosecutors "[u]sually . . . just wave around some certified documents or prior convictions of known gang members." Zamora's counsel said the issue could be discussed in a section 1118.1 motion.
After the prosecution rested its case, Zamora's counsel moved to dismiss count 5 (criminal street gang conspiracy) on the ground that the crime alleged in section 182.5 required the prosecution prove a person "actively participates" in a street gang and that the prosecutor had failed to show Wild Boys (Zamora's gang) was a street gang. Zamora's counsel conceded the prosecutor could argue the existence of a gang for the purpose of arguing motive to commit the underlying crimes. The prosecutor acknowledged she had not proved Wild Boys was a gang, but argued she had proved that Zamora had participated with a member of Carnales, another street gang. The court denied the motion.
Subsequently, defendants moved to dismiss count 5, the gang allegation and the gang-related firearm enhancement pursuant to section 1118.1, arguing the prosecutor had failed to prove the existence of a gang, specifically noting the prosecutor was required to prove a pattern of criminal activity and that element required proof of predicate offenses that occurred within three years of each other. Defense attorneys noted the convictions used by the prosecutor as predicate acts had occurred outside of three years of each other. The prosecutor conceded the issue, and the court granted the motion.
B. Standard of Review
In various contexts, respondent argues appellants forfeited an issue by not making a specific and timely objection or not raising the ground in a motion for new trial or motion to dismiss. Appellants assert that if there were such a failure, it would have constituted ineffective assistance of counsel. Thus, we address the issues on the merits. (See People v. Gonzalez (2006) 38 Cal.4th 932, 945 ["[D]efendant's many objections, both before the witness testified and during the actual testimony, made reasonably clear he was objecting on grounds that included those raised on appeal."]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [In order to prevail on a claim of ineffective assistance, a defendant "'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"].)
"In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because the subjects are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see also People v. Vang (Oct. 31, 2011 S184212) __ Cal.4th _.) Gang enhancements were alleged in the case at bar.
A court's ruling on the admission of gang evidence is reviewed for an abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) "Although evidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged - and thus should be carefully scrutinized by trial courts - such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect." (Ibid.)The California Supreme Court has "condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses." (Italics deleted.) (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)
"'[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.'" (Italics deleted.) (People v. Albarran, supra, 149 Cal.App.4th at p. 229.) To prove a deprivation of federal due process rights, [appellants] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process."'" (Citations omitted.) (Id. at pp. 229-230.)
C. Gang Evidence as Evidence of Motive
Citing Albarran, appellants argue the gang evidence was used to create a motive not otherwise suggested by the evidence. In Albarran, the trial court granted the defendant's new trial motion on the grounds the gang evidence was insufficient to support the gang allegations, but denied the motion as to the underlying charges. (People v. Albarran, supra, 149 Cal.App.4th at pp. 225-226.) This court concluded that the trial court should also have granted a new trial on the underlying charges. (Id. at pp. 227-228, 232.)
In Albarran, the expert opined the shooting was gang related because it occurred in a gang area, at a party where gang members often committed crimes, and more than one shooter was involved. (People v. Albarran, supra, 149 Cal.App.4th at p. 221.) In addition, although the gang expert testified the shooting was for the benefit of the gang as it was done to gain respect, the expert admitted he had no knowledge of any direct evidence such as gang signs, announcements or graffiti that linked the defendant or his gang to the charged offense. (Id. at pp. 219-220.) This court concluded there was no evidence the shooting was done with the intent to gain respect, noting there was no evidence the gang evidence had any bearing on the underlying charges even if it had some relevance to motive as the motive was not apparent from the circumstances and the only evidence to support the motive was the defendant's gang affiliation. (Id. at p. 227.) In addition, we noted that certain evidence about the Mexican Mafia, a threat to kill police officers and about gang members identities and crimes had no legitimate purpose. (Id. at pp. 227-228, 230-231.)
Similarly, the trial court here found the evidence was insufficient and dismissed the gang-related count and gang enhancements albeit not because there was no evidence of motive but because the prosecutor had not proved the two predicate acts had occurred within the required time frame. Thus, the critical issue is not whether the gang evidence was properly admitted; the court's denial of the motion to bifurcate was a proper exercise of its discretion as a gang-related count and gang enhancements were alleged, and, at the time of the motion, it was not apparent the predicate acts had not been committed within the required time frame. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The critical issue is whether because the court found the evidence was not sufficient to prove that count and enhancements, the admission of the gang evidence was so prejudicial that it infected the rest of the trial so as to deny appellants a fair trial.
Appellants posit that similar to Albarran, there was no evidence supporting Carrillo's opinion the shooting was committed to benefit a gang, i.e., the motive was to benefit the gang. Canales notes there was no evidence of disrespect to his gang (Carnales), no graffiti or announcement suggesting a motive on the part of Carnales, no graffiti on the wall suggesting his gang was trying to provoke another gang or show allegiance to the Wild Boys or Playboys, and no testimony one gang would avenge a showing of disrespect to another gang. In addition, there was inflammatory evidence about Carnales's association with the Mexican Mafia and the crimes the gang had committed after the instant shooting that had no bearing on the underlying charges.
Zamora, who argues the gang evidence was used to bolster Gutierrez's account which was contradicted by all the other eyewitnesses to the shooting, notes there was no evidence the Wild Boys was a gang and even though there was evidence of alliances between gangs, there was no evidence Wild Boys would retaliate against Easy Riders when the gang Wild Boys had a conflict with over the graffiti on the wall was Ghetto Boys, or why Canales, a member of Carnales, would kill at the direction of a Wild Boy. Zamora notes that Carrillo implied Zamora was an original gangster (OG) because Zamora was with younger men on the night of the shooting, but argues that is not evidence as Carrillo did not know Zamora. Zamora further notes that Canales was not a member of Zamora's gang and there was no evidence members of allied gangs would respect the OG status of a member of a less powerful gang, let alone kill for that person.
Carrillo testified that OGs are older gang members who are not out committing crimes as they had already earned their status by committing acts of violence.
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To recapitulate, this case involved alliances of two groups of rival gangs. Wild Boys, Playboys and Carnales versus Ghetto Boys and Easy Riders. Appellants Zamora and Canales were members of allied gangs Wild Boys and Carnales respectively. Ivan, the murder victim, hung out with members of the Ghetto Boys (a rival), and his brother Luis was a member of the Easy Riders (a rival).
Carrillo, the gang expert, testified about gang rivalries and noted that if gangs are disrespected in any way, "they have to seek their own retribution against the gang that disrespected them." For example, Carrillo stated that if a gang was disrespected, the gang would "go on a mission," meaning the gang would seek out somebody from the rival gang and cause that person bodily harm. Carrillo also explained that gangs form alliances with other gangs.
Respondent counters the gang evidence was admissible to prove the gang allegations and the gang conspiracy count to prove motive. (See People v. Albarran, supra, 149 Cal.App.4th at pp. 223-224.) Respondent argues that in contrast to Albarran, the record was replete with evidence the shooting was gang motivated, i.e., the wall across the street from the shooting was covered with graffiti and cross-outs, indicating conflict. Zamora's admission he had crossed-out Ghetto Boys graffiti and had problems with Easy Riders and Ghetto Boys indicated a gang motive for the shooting. Hours before the shooting, Zamora (a Wild Boy) had pointed at Luis (an Easy Rider, a rival of Wild Boys) and written graffiti on the wall across the street. Zamora had previously threatened Ivan, who hung out with Ghetto Boys (a rival of Wild Boys). Respondent asserts the gang evidence was also relevant to credibility and explained why Gutierrez and Kidd were afraid to testify.
Even though there was no expert testimony or direct evidence about how allied gangs interacted, using common sense, the jury could reasonably infer that they would act as allies against a rival gang, including shooting a rival gang member. (See People v. Albarran, supra, 149 Cal.App.4th at p. 230.) Under the totality of the circumstances, i.e., the rival allied gangs, the gang graffiti, including the cross-outs, Zamora's prior threats to Ivan, Zamora's implied threat to Luis, and Zamora's "whacking" of graffiti and saying he wanted to go "dump" and referring to being a Wild Boy and having a problem with Easy Riders and Ghetto Boys, there was sufficient evidence to infer the killing was to benefit the allied gangs (Wild Boys and Carnales) of which Zamora and Canales were members.
Moreover, although there was some possibly irrelevant gang evidence about the Mexican Mafia prison gang (the fact it was a prison gang which controlled almost every Hispanic gang south of Bakersfield), its existence was used to explain the significance of the number "13" as showing an alliance among Playboys, Wild Boys and Carnales and was not so detailed as to be inflammatory.
In Albarran, we concluded the case was: "[O]ne of the rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair. Given the nature and amount of this gang evidence at issue, the number of witnesses who testified to Albarran's gang affiliations and the role the gang evidence played in the prosecutor's argument, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict." (Id. at p. 232.)
Unlike Albarran, the gang evidence was relevant to motive and supported by direct evidence of gang involvement in the gang graffiti in the area, Zamora's crossing out of graffiti, his referring to going to "dump" and being a Wild Boy, and the existence of rival allied gangs. In closing, the prosecutor referred to Zamora's statements about being a Wild Boy and "dumping," Zamora being on a mission and his motive being to kill rival gang members, and Zamora's threat to kill Ivan if he hung out with the wrong people, the fact defendants were gang members, and the crossing out of graffiti. However, the prosecutor did not describe gangs or their activities in any detail. In contrast to Albarran, the prosecutor did not argue the case presented a classic gang shooting or that the purpose of the shooting was to gain respect and enhance the shooter's reputation. (People v. Albarran, supra, 149 Cal.App.4th at p. 219.) Accordingly, the gang evidence did not render the trial so fundamentally unfair as to deprive appellants of due process.
II. Abstract of Judgments
Appellants raise arguments about errors in the minute orders and abstracts of judgment, which respondent concedes need to be corrected. (See People v. Jack (1989) 213 Cal.App.3d 913, 915.)
Regarding Canales: The minute order for April 2, 2010, indicates the jury found him guilty of second degree murder on count 1 and that the murder was willful, deliberate and premeditated. The abstract of judgment notes the attempted murder counts (counts 2 and 3) were willful, deliberate and premeditated. However, the jury verdicts reflect not true findings on the willful, deliberate and premeditated allegations as to counts 1 through 3. The minute order and abstract should be corrected.
Regarding Zamora: At the sentencing hearing, the court ordered "the amount of 22,000 and change" in victim restitution to be imposed as joint and several with codefendant Canales. The abstracts of judgment reflect victim restitution in the amount of $22,645, but fail to indicate it is joint and several. The abstracts should be corrected.
In addition, at the sentencing hearing, the court stated Zamora and Canales each had 566 days of actual credit, but they were not allowed that credit. The May 13, 2010, minute orders stated that pursuant to section 2933.2, appellants were not allowed custody credit. Appellants are entitled to actual days of presentence custody. (See People v. Reyes (2008) 165 Cal.App.4th 426, 437.) Section 2933.2 bars conduct credit, but not actual credit. (See People v McNamee (2002) 96 Cal.App.4th 66, 74; People v. Duff (2010) 50 Cal.4th 787, 797.) Although the abstracts of judgment reflect the actual credits, the minute orders should be corrected.
Respondent asserts the abstracts should be amended to reflect a $30 court security fee (pursuant to § 1465.8, subd. (a)(1)) and a $30 court building assessment (pursuant to Gov. Code, § 70373) as to each count. (See People v. Lopes (2010) 188 Cal.App.4th 474, 478-480.) The court imposed those fees only on counts 1-3, but not on count 4. Pursuant to section 654, no sentences were imposed on count 4.
DISPOSITION
The April 2, 2010, minute order and the abstract of judgment for Canales are corrected to delete the findings the murder and attempted murder convictions were willful, deliberate and premeditated. The May 13, 2010, minute orders are corrected to the show Canales and Zamora each should be given credit for 566 actual days. Both abstracts of judgment are corrected to reflect the victim restitution is joint and several and that the court security fees and court building assessments are imposed on all four counts. The superior court is ordered to prepare corrected minute orders and to prepare and file with the Department of Corrections and Rehabilitation amended abstracts of judgment reflecting these changes. In all other respects, the judgments are affirmed.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.