P. v. Pacheco

Filed 8/17/07 P. v. Pacheco CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Fred J. Fujioka, Judge. Affirmed.

Law Offices of Allen G. Weinberg, Allen G. Weinberg for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant David M. Pacheco (defendant) of first degree murder (Pen. Code, 187, subd. (a)[1]), two counts of attempted murder ( 664/187, subd. (a)), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). As to the murder and attempted murder convictions, the jury found true the special allegations that defendant personally used a firearm ( 12022.5, subd. (a)(1), 12022.53, subd. (b)), personally discharged a firearm (12022.53, subd. (c)), personally discharged a firearm causing great bodily injury and death (12022.53, subd. (d)), and personally discharged a firearm at an occupied motor vehicle, causing great bodily injury and death ( 12022.5, subd. (b)(1)). The jury also found true the special allegations that defendant was on probation when he committed murder and attempted murders (12022.1, subd. (f)) and that he committed those offenses for the benefit of a criminal street gang (186.22, subd. (b)(1)(A)). The trial court sentenced defendant to state prison for 130 years to life, plus eight months. On appeal, defendant contends that the trial court erred when it failed to instruct the jury, sua sponte, on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses of murder and attempted murder, and that there is insufficient evidence to support the criminal street gang sentence enhancement. We affirm.

BACKGROUND

About 1:45 p.m., on July 19, 2004, Freddie Nilo was driving an SUV in the City of San Gabriel. Christopher Gonzales and Julian Zarate were Nilos passengers. Nilo stopped at a stoplighta gas station was to the left of the SUV, Saint Anthonys church was to the right. As they were stopped, Zarate saw two men on the steps of the church. Zarate saw something silver, and ducked. Zarate heard gunshots coming from his right. Nilo sustained two gunshot wounds to his head and one to his left arm or wrist. Nilo died from the gunshot wounds to his headeach wound being fatal. According to Zarate, no one in the car had said anything to the men, and the men had not said anything to anyone in the car. Zarate was not a gang member and did not believe that Nilo or Gonzalez was a gang member.

About 1:45 p.m., City of San Gabriel Police Department Detective Greg Mallette, overheard a radio call concerning the shooting and went to the scene. Detective Mallette looked inside the SUV and did not see any weapons. He believed that there was a baseball bat in the SUV.[2] Detective Mallette saw between five and seven shell casings in the upper area of Saint Anthonys Church.

City of San Gabriel Police Department Officer Joe Pelano searched for two suspects who had fled from the scene of the shooting. As he searched, he saw two men who fit the description of the suspects. Defendant was one of the men. Officer Pelano stopped and looked at the men, and they took off running. Officer Pelano lost sight of the men and radioed dispatch that the suspects likely had gone over a retaining wall adjacent to the 10 freeway.

In response to Officer Pelanos radio call to dispatch, City of San Gabriel Police Department Officer Jeff Whitney and his partner, Dane Woolwine, drove on to the freeway. Officer Whitney saw two men who matched the description of the suspects walking along the freeway. As Officer Whitneys car approached the men, the men ran. One of the men struggled to remove a gun from his waistband. Officer Woolwine fired two shots at the suspect. Both shots missed.

Eventually, City of San Gabriel Police Department Officer Andy Texeira stopped defendant and held him at gunpoint until another officer arrived and took defendant into custody. The other suspect went into a drainage hole. A gunshot residue test was performed on defendants hands. The test revealed one particle of gunshot residue. Officer Pelano spoke with Gonzales. Gonzales said that as he was sitting in the front passenger seat of the SUV, he looked to his right and saw two men sitting on the stairway of Saint Anthonys church. One of the men appeared to be saying something to him so he rolled down his window. When he rolled down his window, one of the men pointed a gun at him. Gonzales heard gunshots. Gonzales described the men as Hispanic. The shooter had a tattoo of unidentifiable handwriting on the left side of his neck. Officer Pelano also spoke with Zarate who stated that one of the suspects fired a handgun four or five times.

City of San Gabriel Police Department Officer Fabian Valdez took Gonzales and Zarate separately to the location where defendant had been detained for a field show-up. According to Officer Valdez, Gonzales said that defendant probably was the person who fired the shots. Officer Valdez did not believe that Gonzales was 100 percent sure of his identificationhe appeared to be 90 percent sure. Officer Valdez testified that Zarate identified defendant as the shooter and that Zarates identification was definite.

Los Angeles Sheriffs Department Investigator Richard Ramirez testified that he interviewed Gonzales at the Temple Sheriffs station two or three hours after the shooting. According to Investigator Ramirez, Gonzales told him that he saw two people on the street before the shooting, and that he saw one of them fire into the SUV. Investigator Ramirez showed Gonzales a photographic lineup. Gonzales identified one of the photographs and wrote, I seen him shoot into the car.

Investigator Ramirez testified that he also interviewed defendant. Defendant admitted that he was a member of the Lomas gang and had the moniker of Droopy. Defendant also admitted that he was at Saint Anthonys Church on July 19, 2004, but denied that he murdered Nilo. Defendant stated that even if he had committed the murder, he would not confess.

About 9:00 a.m. on July 22, 2004, defendant had a conversation with Gilbert Padilla at the Los Angeles County Inmate Reception Center. The conversation was recorded on a compact disc that was played for the jury. In that conversation, defendant stated that he had been busted for killing a sad girl.[3] Defendant stated that they got him in front of Saint Anthonys. Defendant explained that he and Shaggy were at the gas station across from Saint Anthonys when a car load of fools passed by and looked at them. The occupants of the car, who defendant apparently believed were Sagre mad dogged defendant and Shaggy. When defendant and Shaggy crossed the street, the car apparently made a quick U-turn.[4] Defendant apparently instructed Shaggy to call someone for back up or to pick them up right away before they were seen.

Defendant told Padilla that the car pulled up and an exchange ensued in which someone in the car asked, Where are you fools from? Defendant asked, Where you fools from? Defendant then said, [T]his is where Im from. Whats up? Boom. Boom. Defendant, apparently having discharged his gun, reloaded his gun. Defendant and Shaggy ran away. Defendant described fleeing from the police and jumping over the wall to the 10 freeway. Apparently referring to his gun, defendant told Padilla that he hid the thing shortly before he was apprehended.

Based on defendants statement in an audio surveillance that he had placed the gun in the general area of the officer shooting, Investigator Ramirez and a K9 scent dog went to that area of the 10 freeway. A Jenning 380-caliber Bryco model handgun was found hidden in some shrubs.

Two bullets and three bullet fragments were recovered from the SUV. Another bullet was recovered from the street near the SUV. Seven 380-caliber cartridge cases were recovered from the patio area of the church. A firearms expert testified that the bullets, bullets fragments, and cartridge cases recovered from the scene of the shooting had been fired or ejected from the Jenning 380-caliber Bryco model handgun.

At trial, Zarate testified that the police took him to a field show-up to see if he could identify a suspect as the shooter. Zarate testified that he did not recognize the person he viewed. The police told Zarate that the person he viewed was one of the persons who had been at the church.

Zarate testified that he later met with Detective Ramirez, who showed him some photographs. One of the photographs was of defendant. Zarate testified that he had not previously seen any of the persons in the photographs. Below defendants photograph Zarate had written, Identified what suspect wore.

Zarate did not point a gun at anyone and did not see anybody in the SUV point a gun at anyone. Zarate did not recall making a U-turn at the intersection and returning for a second look at whoever was at that location. Zarate explained that hitting someone up means to ask a person where they are from. The purpose of the inquiry is to determine the persons gang affiliation. Zarate did not hear anyone being hit up that afternoon. Zarate did not see any baseball bats or a tire iron on the floor in the SUV.

Gonzales testified that he heard gunshots, but that he did not see who fired the shots or anyone at the church. He denied that he told the police that he saw the person who shot into the car or that he described the gun to the police. Gonzales also denied that the police took him to a field show-up after the shooting or that they showed him defendant. Gonzales testified that he had never seen defendant before, that he did not see defendant that day, and that he did not tell the police that defendant was the person who shot into the car and killed Nilo.

Gonzales testified that the police showed him some photographs. Gonzales circled and placed his initials next to a photograph of defendant. He circled and placed his initials next to the photograph because an officer told him to do so. Next to his initials, Gonzales wrote, I seen him shoot into the caragain, because the officer had told him to do so.

Los Angeles County Sheriffs Department Sergeant John Stilgenbauer testified that he was familiar with the activities of the Lomas gang. He had personally contacted at least 100 Lomas gang members. He was involved in the investigation of hundreds of crimes believed to have been committed by the Lomas gang, including simple narcotics, burglaries, assaults, robberies, and murders. According to Sergeant Stilgenbauer, those crimes are the primary criminal activities of the Lomas gang.

Sergeant Stilgenbauer had had about six contacts with defendant. In those contacts, defendant freely admitted that he was a member of the Lomas gang. Defendant told Sergeant Stilgenbauer that he went by the moniker, Droopy. Defendant had a tattoo on his neck of the words Big hills gang. Hills gang refers to the Lomas gang. Defendant had other tattoos that appeared to spell Lomas.

Sangra is a rival gang to the Lomas gang. North of the 10 freeway was Sangra gang territory. South of the freeway was Lomas gang territory. Sergeant Stilgenbauer opined that if a Lomas gang member, armed with a firearm, was north of the freeway in Sangra gang territory when a car with three people pulled up and in an ensuing conversation the phrase Where are you from? was uttered, and the Lomas gang member then fired seven shots into the car killing one of the occupants, that crime was committed for the benefit of the criminal street gang because word of the shooting would get out on the streets and the Lomas gang achieved what it wanted through intimidation and fear. According to Sergeant Stilgenbauer, carrying a gun also can benefit a criminal street gang because it is a tool the gang needs to perpetuate gang intimidation.

On November 20, 2002, Paul Ahumada, a Lomas gang member, was convicted for intimidating witnesses to robbery and assault. The parties stipulated that defendant was convicted of a felony on June 29, 2004.

DISCUSSION

I. The Trial Court Was Not Under a Sua Sponte Duty to Instruct the Jury on

Voluntary and Attempted Voluntary Manslaughter

Defendant contends that the trial court had a sua sponte duty, based on the evidence, to instruct the jury on voluntary manslaughter as a lesser included offense to murder and attempted voluntary manslaughter as a lesser included offense to attempted murder on an imperfect self-defense theory. The trial court properly instructed the jury.

In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[ ] that the lesser offense, but not the greater, was committed. [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Barton (1995) 12 Cal.4th 186, 200-201 [a trial court need instruct on a lesser included offense only when there is substantial evidence, not when the evidence is minimal and insubstantial.) We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1218.)

California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. (Compare 187, subd. (a) [[m]urder is the unlawful killing of a human being . . . with malice aforethought] with 192 [[m]anslaughter is the unlawful killing of a human being without malice].) [] . . . [] Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. [Citation.] (People v. Randle (2005) 35 Cal.4th 987, 994-995; People v. Lewis (2001) 25 Cal.4th 610, 645 [When the defendant killed in the actual but unreasonable belief that he or she was in imminent danger of death or great bodily injury, this is termed imperfect self-defense, and the killing is reduced from murder to voluntary manslaughter. [Citations.]]; People v. McCoy (2001) 25 Cal.4th 1111, 1116 [a person is guilty of attempted voluntary manslaughter when he attempts to kill in the unreasonable but good faith belief in the need to act in self-defense].) The defendant must actually both possess and act upon the required state of mind. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.)

In this case, defendant contends that his surreptitiously recorded conversation with Padilla provides the evidence that triggered the trial courts sua sponte duty to instruct on voluntary and attempted voluntary manslaughter. In that recording, defendant, who was in rival Sangra gang territory at the time of the shooting, stated that he saw a car he believed contained Sangra gang members. Defendant told Shaggy to call someone to pick them up. The car made a U-turn and approached defendant. Someone in the car asked defendant, Where are you fools from? Defendant asked, Where you fools from? Defendant then said, [T]his is where Im from. Whats up? Defendant then apparently discharged his gun. Sergeant Stilgenbauer testified that when a gang member asks another person Where are you from? the inquiry is intended to determine whether the other person is from a gang. If that person is from a rival gang, things happen such as a shooting or assaults. Defendant argues that no conclusion can be drawn from defendants conversation with Padilla other than that he drew his weapon and fired in fear of his life; fear that rival gang members were about to shoot him. Defendant argues that this evidence was sufficient to require instructions based on imperfect self-defense.

While defendants conversation with Padilla might provide some slight evidence that defendant shot into the SUV because he anticipated some sort of violence from the SUVs occupants, it does not provide substantial evidence from which a reasonable juror could conclude that defendant committed voluntary or attempted voluntary manslaughter and not murder and attempted murder. (People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Barton, supra, 12 Cal.4th at pp. 200-201.) The doctrine of imperfect self-defense requires defendant to have actually, but unreasonably, believed he was in imminent danger of death or great bodily injury. (People v. Randle, supra, 35 Cal.4th at pp. 994-995; People v. Lewis, supra, 25 Cal.4th at p. 645; People v. McCoy, supra, 25 Cal.4th at p. 1116.) Defendant did not tell Padilla that he believed the persons in the SUV were going to shoot him or otherwise inflict great bodily injury upon him. Sergeant Stilgenbauers testimony about what happens when a gang member asks a rival gang member Where are you from? does not fill in this evidentiary gap in defendants recorded conversation. Sergeant Stilgenbauer did not testify that every time the inquiry is made a shooting or assault ensues. He testified that those acts are among the things that happen after such an inquiry. Moreover, although Sergeant Stilgenbauers testimony describes what can be expected to follow such an inquiry, it does not show that defendant actually believed he was in imminent danger of death or great bodily injury and acted upon that belief. (People v. Sinclair, supra, 64 Cal.App.4th at p. 1016.) Defendant did not testify.

In addition, even if we were to hold that the trial court erred in failing to instruct the jury on voluntary and attempted voluntary manslaughter, any such error was harmless. A trial courts error in failing to instruct the jury, sua sponte, on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 165, 176.) Based on an examination of the entire record in this case, it is not reasonably probable that the jury would have convicted defendant of voluntary or attempted voluntary manslaughter if the trial court had instructed on those offenses. (Ibid.)

II. Sufficient Evidence Supports the Criminal Street Gang Sentence

Enhancement

Defendant contends that there is insufficient evidence to support the criminal street gang sentence enhancement under section 186.22 because the evidence fails to show that one of the Lomas street gangs primary activities is the commission of one or more of the criminal acts enumerated in paragraphs (1) through (25) of section 186.22, subdivision (e). Sergeant Stilgenbauers expert witness testimony is sufficient evidence of the Lomas gangs primary activities.
To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 [gang enhancement].) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In order for imposition of the criminal street gang sentence enhancement under section 186.22, subdivision (b), the prosecution must prove that one of the alleged gangs primary activities is the commission of at least one of certain crimes listed in the gang statute. ( 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members. (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) Sufficient proof of the gangs primary activities might consist of evidence that the groups members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on his personal investigations of hundreds of crimes committed by gang members, together with information from colleagues in his own police department and other law enforcement agencies. [Citation.] (Id. at p. 324.)
In this case, Sergeant Stilgenbauer testified that he was familiar with the activities of the Lomas gang. Sergeant Stilgenbauer had personally contacted at least 100 Lomas gang members, and was involved in the investigation of hundreds of crimes believed to have been committed by the Lomas gang, including simple narcotics, burglaries, assaults, robberies, and murders. When asked what the Lomas gangs primary activities are, Sergeant Stilgenbauer responded, The crimes I mentioned. It ranges. They vary by the gang.

Defendant contends that simple narcotics crimes and assault (other than with a deadly weapon or by means likely to produce great bodily injury) are not qualifying offenses under section 186.22, subdivision (e). Defendant concedes that burglary ( 186.22, subd. (e)(11)), robbery ( 186.22, subd. (e)(2)), and murder ( 186.22, subd. (e)(3)) are qualifying crimes under section 186, subdivision (e), but argues that Sergeant Stilgenbauer lumped these qualifying crimes together with non-qualifying crimes and never testified that any or each of the five activities was a primary activity; he testified only that collectively these five activities constituted the primary activities of the gang.

The record does not support defendants characterization of Sergeant Stilgenbauers testimony. The prosecutor asked Sergeant Stilgenbauer, What are the primary criminal activities of Lomas? The sergeant responded that the crimes he had listed were the gangs primary activities. He did not testify that the five identified crimes collectively constituted the gangs primary activities. Fairly construed, Sergeant Stilgenbauer testified that each identified crime was a primary activity of the Lomas gang. Because two of those crimes indisputably are qualifying crimes under section 186.22, subdivision (e)robbery ( 186.22, subd. (e)(2)), and murder ( 186.22, subd. (e)(3)Sergeant Stilgenbauers testimony provides sufficient evidence to support the criminal street gang enhancement under section 186.22.[5]

Further, contrary to defendants assertion, Sergeant Stilgenbauers testimony in this case is unlike the expert witness testimony in In re Nathaniel C. (1991) 228 Cal.App.3d 990. There, the expert witness testified that the primary activity of gangs in his area was criminal. (Id. at p. 1004.) The expert gave a general list of the crimes he had in mind, only one of which was a qualifying offense. (Ibid.) The expert did not identify the gang in question as being from his area. (Id. at pp. 1004-1005.) Here, Sergeant Stilgenbauer testified specifically about the primary activities of the Lomas gang.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] All statutory citations are to the Penal Code unless otherwise noted.

[2] A Los Angeles County Sheriffs Department investigator inspected the SUV and found two aluminum baseball bats in the back seat and a tire iron on the floor in the right front seat.

[3] A gang expert later testified that sad girl is a term used by Lomas gang members to refer to members of Sangra, a rival gang.

[4] Defendant described the car as busting a bitch. A Los Angeles County Sheriffs Department investigator explained that flipping a bitch is gang vernacular for making a quick U-turn.

[5] Although burglary ( 186.22, subd. (e)(11)) also is a qualifying crime, the trial court did not instruct the jury with respect to that offense. In defining a criminal street gang, the trial court instructed the jury that a criminal street gang must have as one or more of its primary activities the commission of dissuading witnesses, robbery, assaults with deadly weapons, murder, or attempted murder.