P. v. Alonzo

Filed 6/3/08 P. v. Alonzo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found Robert Alonzo guilty of willful, deliberate and premeditated attempted murder. (Pen. Code,  664, subd. (a), 187, subd. (a).)^[1] The jury also found that Alonzo personally and intentionally discharged a firearm proximately causing great bodily injury ( 12022.53, subds. (a), (c) & (d)); that he personally inflicted great bodily injury ( 12022.53, subd. (d)); and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)). We affirm.

FACTS

On May 5, 2004, Salvador Guzman, also known as "Sal" and "Tody," went to Maurizio's bar in Glendale. Guzman joined the Toonerville gang in his youth, but claims he is no longer an active member. He might be considered an associate because he associates with members in his neighborhood. He has Toonerville tattoos on his stomach and upper arm.

Guzman was drinking in the bar while watching a Lakers game and a bikini contest. Karaoke was also playing. The bar was crowded with 100 to 150 people, many of whom were wearing Lakers jerseys. Some of the bar patrons were members of different gangs.

Guzman became hot and took off his shirt. He was wearing a tank top underneath, thus exposing the Toonerville tattoo on his shoulder. He did not notice anyone suspicious or do anything to provoke anyone. While Guzman was standing, he was shot in the back. He did not see who shot him. He went to the hospital, where he had surgery. He stayed in the hospital for 16 days.

Michael and Tia Moreno were at the bar that night. They knew Guzman when they were younger, but had not seen him in a long time. They said hello to him. The Morenos were standing about five feet behind, and to the right of Guzman. There was a man standing next to Tia Moreno. She noticed the man was fidgety and nervous, and that his hands kept going near his shirt. Michael Moreno paid attention to the man because he looked suspicious. Michael saw the man had his hands around his waistband underneath his shirt. The Morenos heard a gunshot and Guzman jumped. The man went out the side door quickly. Neither of the Morenos saw the man holding a weapon.

The Morenos and others in the bar ran out the door. The Morenos saw the man walking alone quickly up the street. Michael Moreno saw people pointing and shouting, "That's the guy." Guzman said that also. Tia Moreno saw the man run after he reached the corner. Michael Moreno identified Alonzo as the man in a photographic lineup and in court. Tia Moreno identified Alonzo in court.

Melissa Cortez was Guzman's girlfriend. She was with him when he was shot. She did not see anyone shoot her boyfriend. She heard a pop and Guzman jumped up and ran out the door. She saw a man walking alone down the street. She yelled, "That's the person who shot my boyfriend." Other people were saying similar things. Although Cortez did not see who shot Guzman, she assumed it was the man she saw walking down the street because he was walking away very quickly.

Claudia Rios was at Maurizio's bar when Guzman was shot. She left her seat at the counter and was walking toward the front door to meet a friend. A man's right arm brushed against her as he pointed something. Rios heard a shot and saw a small silver handgun. She did not get a good look at the shooter's face. But she saw that the man had a pair of red lips tattooed on the right side of his neck.

Iris Gutierrez knew Guzman, Melissa Cortez and her sister, Adriana Cortez. On the night of the shooting, Gutierrez was outside on the patio of a neighboring restaurant. Gutierrez heard a commotion at Maurizio's bar and saw Guzman and the Cortez sisters come out into the street. There was a man walking away from Maurizio's. There was no one else on the street. The Cortez sisters were very upset. They pointed to the man walking away and said he is the one who shot Guzman.

Glendale Police Sergeant Russell Pierce and another officer were in the area. Pierce saw Alonzo step off the curb and jaywalk toward them very quickly. Alonzo did not look in the officers' direction. He was looking down at a cell phone and to the left and right.

The police detained Alonzo. They found no weapons on his person or in the surrounding area. They performed a gun shot residue (GSR) test on him. The test showed four particles of GSR on his right hand and three on his left hand. The results indicated that Alonzo had either fired a gun, been within 14 feet of a gun that had been fired, or touched the hand of someone who had fired a gun.

The police noticed Alonzo had red marks on the left side of his neck.

Police found a small caliber shell casing in Maurizio's bar. They placed it in a small bag without touching it. Police also noticed gang graffiti on the bathroom walls at Maurizio's bar.

Edward Hamm is a civilian bloodhound handler who contracts with a number of law enforcement agencies. Hamm has been handling bloodhounds since 1988 and has participated in 1,700 to 1,800 investigations. He works with a 10-year-old bloodhound named Knight, who is trained and certified.

In February of 2005, Hamm was given a spent shell casing at the Glendale Police Department. He prepared two scent pads using a scent transfer unit (STU). An STU is a small dust buster-like device used to transfer scent from an object onto a gauze pad. Hamm was told that Alonzo was somewhere in the building. But Hamm was not told Alonzo's route or where in the building he was. Hamm took Knight to the entrance of the building and presented the scent pad to him. Knight followed the trail Alonzo took through the building to the third floor and found him sitting in a room. At least one other person was in the room. Knight went up to Alonzo and put his head in his lap. Hamm interpreted that as indicating a match. Knight was trained to jump up on the subject and bark. But, possibly because of arthritis, Knight no longer does that.

Alonzo has a number of tattoos showing his membership in the Clanton gang. Los Angeles Police Detective Cheryl Rush is assigned to the gang division. She was assigned to the prostitution unit at the time the crime was committed. She has been a police officer for eight years and has been involved in over 200 gang-related investigations. She has received gang training from veteran gang officers, has attended department gang schools and is a member of the California Gang Investigators Association.

Rush testified that the Toonerville gang was a rival to the Clanton gang at the time of the shooting. Maurizio's was in Toonerville territory and is a gang hangout. In Maurizio's bathroom, Toonerville gang graffiti "TVR" was crossed out and Clanton gang graffiti "CX4" was on the wall. This shows the gangs are not just rivals, but that they are at war. Crossing out another gang's graffiti indicates that violence will follow. Given a hypothetical based on the facts of this case, Rush opined that the crime was committed in association with and for the benefit of a criminal street gang.

Rush testified Serpipco Ahmada and Jose Avila were members of the Clanton gang. Based on court documents, in June of 2004, Ahmada pled no contest to theft on a robbery charge, and in September of 2001, Avila pled no contest to assault with a deadly weapon on an attempted murder charge.

Glendale Police Officer Nikita Orloff is assigned as a gang investigator. Through the course of his work and conversations with Rush and other detectives, he has become familiar with the primary activities of the Clanton gang. Those activities include vandalism, robbery, attempted murder and murder.

DISCUSSION

I

Alonzo contends the trial court erred in denying his motion to bifurcate trial on the gang enhancement.

In cases not involving gang enhancements, our Supreme Court has held that evidence of gang membership is potentially prejudicial and should not be admitted where its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) But often evidence of gang membership is relevant and admissible to prove issues relating to the charged offense, such as motive, identity or specific intent. (Ibid.) To the extent that evidence supporting a gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (Id. at pp. 1049-1050.)

Here evidence relating to the gang enhancement is highly probative on issues of identity, motive and intent relating to the charged offense. In fact, the gang evidence is the only evidence that explains the shooting. It is so probative that it easily overcomes any objection based on undue prejudice under Evidence Code section 352. The trial court did not err in refusing to bifurcate the trial on the gang enhancement.

II

Alonzo contends the trial court erred in allowing introduction of hearsay.

Michael Moreno testified that after Guzman was shot, people were pointing at Alonzo as he walked away saying, "That's the guy."

Iris Gutierrez testified that after the shooting, Melissa and Adriana Cortez pointed out Alonzo and said he was the one who shot Guzman.

Melissa Cortez testified she remembered yelling, "That's the person who shot my boyfriend." She also testified other people were saying similar things. Cortez said she assumed Alonzo was the shooter because he was walking away very quickly.

The trial court overruled Alonzo's hearsay objections to the testimony of all three witnesses. The court determined the statements qualified as spontaneous statements under Evidence Code section 1240.

Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."

The section's requirement that the event must be "perceived by the declarant" makes it clear that the hearsay statement, even if spontaneous, is admissible only if it relates to an event the declarant perceived personally. (People v. Phillips (2000) 22 Cal.4th 226, 235.) There need not be direct evidence that the declarant personally perceived the incident. (See People v. Gutierrez (2000) 78 Cal.App.4th 170, 178, fn. 7.) It is sufficient if personal perception can be inferred from the evidence. (Ibid.) Nor is there a requirement that the declarant be identified. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436; People v. Provencio (1989) 210 Cal.App.3d 290, 302-303 [unidentified child cried out, "There goes Angel"].) The foundation required for admission of a spontaneous declaration need only be established by a preponderance of the evidence. (Gutierrez, at pp. 177-178.)

Here Alonzo points out that no one saw the actual shooting. But Alonzo cites no authority that the personal perceptions of the declarant must be of the shooting itself. The hearsay declarant's personal perceptions may be of circumstances surrounding the shooting that reasonably lead to the conclusion Alonzo was the shooter. Here the evidence is sufficient for the trial court to conclude that bar patrons personally perceived that Guzman had been shot by someone in the bar. The patrons heard a gunshot, saw that Guzman had been shot or both. The trial court could also conclude that the persons who shouted that Alonzo was the shooter personally saw him fleeing the scene in the manner of a person who committed the offense. That is a sufficient foundation for the admission of the hearsay declarations identifying Alonzo under Evidence code section 1240. The trial court properly admitted the evidence.

III

Alonzo contends the trial court erred in allowing evidence of the dog-scent identification.

Alonzo argues the use of an STU to gather scent and dog-scent identification in general are new scientific techniques that may be admitted only after their reliability has been established pursuant to People v. Kelly (1976) 17 Cal.3d 24. Kelly states a three-prong test for establishing the reliability of evidence obtained by a new scientific technique. The first prong requires proof that the technique is generally accepted as reliable in the scientific community. (Id. at p. 30.) The second prong requires that the witness testifying about the technique is properly qualified as an expert. (Ibid.) The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. (Ibid.; see People v. Bolden (2002) 29 Cal.4th 515, 544-545.)

Alonzo cites two cases in which STU and dog-scent identification evidence were held to have been improperly admitted. (People v. Mitchell (2003) 110 Cal.App.4th 772; People v. Willis (2004) 115 Cal.App.4th 379.) In each case, the court concluded that the trial court erred in failing to subject the evidence to a Kelly analysis. (Mitchell, at p. 793; Willis, at pp. 385-386.)

Here, in contrast, the trial court held an extensive Kelly hearing. In addition to live testimony by experts, with the consent of Alonzo's counsel, the trial court considered the record of a Kelly hearing involving the same issues that the same trial court decided in a previous case.

The trial court relied on the expert testimony of Doctors Kenneth Furton and Brian A. Eckenrode, Ph.D., Special Agent Rex Stockham, and Hamm.^[2]

The court also read and considered 42 articles and one book on the subject. Alonzo does not contest that the witnesses testifying about the technique are properly qualified as experts. Nor does Alonzo contest the trial court's conclusion that both use of the STU and dog-scent identification techniques are generally accepted as reliable in the scientific community.

Alonzo challenges the trial court's conclusion that Hamm used the correct procedures in this case.

Alonzo argues that Hamm failed to conduct a negative response test just prior to conducting the dog-scent identification in this case. Hamm testified that "for the most part" he tests his dog Knight by presenting him with a pad that has someone's scent who has not been at the place the dog is working. This demonstrates, at least on that particular day, the dog is capable of giving "a good negative response." Hamm testified he did not do that for this particular search. The trial court found that Hamm's failure to conduct a negative test goes to the weight, not the admissibility, of the evidence.

Alonzo claims Stockham testified such a negative test is necessary to assure accuracy. But as we read Stockham's testimony, he was speaking of the need for testing of the dog periodically, not every time the dog works. Hamm testified he tested Knight at a minimum of once a week. Stockham testified he has worked with Hamm and Knight continuously since 2001, is familiar with how Hamm tested his dog, and in Stockham's opinion, Hamm exceeds the minimum standards for testing.

Alonzo also points out that Furton testified that after cleaning the STU it is important to run a scent pad and present it to the dog to ensure there is no scent from a prior use. But Furton also testified that even without the use of a blank pad after cleaning, he is comfortable that the results are valid. The trial court reasonably concluded that the failure to test with an unscented pad goes to the weight of the evidence.

The trial court also reasonably concluded that Knight's failure to jump up on and bark at Alonzo goes to the weight of the evidence. Instead, Knight put his head in Alonzo's lap. Alonzo points out that the court in People v. Willis, supra, 115 Cal.App.4th 379, 386, expressed the difficulty of judging the accuracy of the identification when the dog demonstrates less than an "unambiguous alert." But here there was evidence that Knight followed the route Alonzo took through the police station, up stairs, through closed doors and a series of rooms, passing up several people in whom Knight showed no interest. Knight went up to Alonzo and placed his head in Alonzo's lap. The trial court could reasonably conclude Knight gave an unambiguous alert.

Similarly, that Knight's leash may have gotten tangled in a revolving door at the entrance to the police station and that Hamm's testimony about whether Alonzo was on the second or third floor, go to the weight of the evidence. Identification of suspects by dogs, like identification of suspects of humans, does not have to be perfect to be admissible.

Alonzo argues the evidence should not have been admitted because of the passage of time, nearly 10 months, between the shooting and the collection of scent from the shell casing. In addition, Alonzo argues it is possible the heat and pressure from being fired affected the scent on the shell casing.

Hamm testified that scent can last on an article for five years, and that he has used spent shell casings in hundreds of cases. Stockham testified that scent can survive on articles that have been blown up, burned, or submerged in water. He said dogs have been able to take human scent and identify a person from the remains of bomb fragments. The trial court found that scent can remain on an object for days, months or even years, through bomb blasts, under water and in the elements.

IV

Alonzo contends the prosecutor failed to prove the Clanton gang is a criminal street gang.

Section 186.22, subdivision (b)(5) provides that any person who commits a felony punishable by imprisonment for life for the benefit of a criminal street gang "shall not be paroled until a minimum of 15 calendar years have been served."

On May 5, 2004, the day of the shooting, section 186.22, subdivision (f) read as follows: "As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

On May 25, 2004, section 186.22, subdivision (e) read: "As used in this chapter, 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [followed by 25 enumerated offenses]."

In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (Johnson,at p. 578.)

Alonzo argues there is insufficient evidence to support a finding that the group's "primary activities" qualifies it as a criminal street gang. A finding of primary activities may be based on expert testimony. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223.) Here Officer Nikita Orloff testified that he is assigned as a gang investigator, that in the course of his work and through his conversation with Detective Rush and other detectives he has become familiar with the Clanton gang's primary activities, and that the gang's primary activities include vandalism, robbery, attempted murder and murder. Robbery and unlawful homicide are listed in section 186.22, subdivision (e)(2) and (3). That is sufficient evidence to support a finding of a gang's primary activities.

Alonzo's reliance on In re Alexander L. (2007) 149 Cal.App.4th 605 is misplaced. There an expert testified that "I know" the gang has committed a number of qualifying offenses. (Id. at p. 611.) But there was no foundation as to how he knew. (Id. at pp. 611-612.) The court held there was inadequate foundation for the expert's opinion. Here, in contrast, Officer Orloff testified that he became familiar with the Clanton gang's primary activities in the course of his work and through conversations with Detective Rush and other detectives. That is an adequate foundation. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [expert's opinion may be based on the expert's personal investigation of past crimes by gang members and information about gangs learned from the expert's colleagues and from other law enforcement agencies].)

Alonzo argues Detective Rush's testimony about the predicate offenses was without sufficient foundation. Rush testified that Ahmada and Avila are members of the Clanton gang. Court records show Ahmada pled no contest to theft on a robbery charge and Avila pled no contest to assault with a deadly weapon on a murder charge.

Alonzo challenges Rush's testimony that Ahmada and Avila are members of the Clanton gang as impermissibly conclusory. But Rush testified about her training and experience with gangs in general and the Clanton gang in particular. That is sufficient to support her opinion that Ahmada and Avila are Clanton gang members. Alonzo points out that Rush was working prostitution enforcement at the time of Ahmada's conviction; that she never investigated or spoke to Ahmada or Avila; and that she did not specify when she spoke to Clanton gang members or the nature of the conversations. But such matters go to the weight, not the admissibility, of the evidence.

V

Alonzo contends Rush's gang expert testimony regarding the ultimate question for the jury unduly prejudiced his trial.

At trial the prosecutor gave Rush a hypothetical based on the facts of the case without mentioning Alonzo's name. The prosecutor asked Rush's opinion on whether such a shooting was done for the benefit of a criminal street gang. Rush said it was.

Expert opinion testimony is admissible where the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) The culture and habits of criminal street gangs meet this criteria. (Ibid.) Such expert testimony may be admitted even if it goes to an ultimate issue in the case. (People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Admissibility of such evidence will depend on the nature and circumstances of the case. (Ibid.) A large element of judicial discretion is involved in determining whether expert opinion on an ultimate issue will be allowed. (Ibid.)

In People v. Gardeley, supra, 14 Cal.4th 605, 619, our Supreme Court determined the trial court properly allowed expert opinion based on a hypothetical that a particular incident was "gang-related activity." The question there, as here, was whether the offense was committed for the benefit of a criminal street gang. Similarly, in People v. Valdez, supra, 58 Cal.App.4th 494, 508, the court determined an expert was properly permitted to testify that the offenses were committed for the benefit of a criminal street gang.

Alonzo attempts to distinguish Valdez on the ground that there the facts were complicated: seven Norteo gangs united for a single day to attack Sureo gang members. But no such complication existed in Gardeley. Moreover, here expert opinion is helpful to explain what might otherwise appear to be a random shooting.

Alonzo's reliance on In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1199, is misplaced. There the expert testified as to the minor defendant's subjective knowledge and intent. Here Rush gave no such testimony.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Dorothy L. Subin, Judge

Superior Court County of Los Angeles

______________________________

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code unless otherwise stated.

^[2]The trial court stated the experts' credentials as follows:

"DR. KENNETH FURTON is the Director of the International Forensic Research Institute at Florida International University where he is a professor of chemistry and biochemistry. He received his bachelor of science in chemistry with a minor in forensic science in 1983, a PhD in analytical chemistry with a minor in biology, and completed his postdoctoral studies in nuclear chemistry in 1988. His expertise is in analytical chemistry and forensic science, and his primary area of expertise is separation science, the science of separating, identifying and quantifying chemical mixtures. He has been conducting research for the last ten years on odor signatures and the chemical basis of canine detection of odor. He has published peer reviewed articles regarding his studies of human scent uniqueness and the best ways to collect human scent. He is currently completing studies regarding different cotton absorbers or gauze pads used for scent work. He has examined the STU-100 and although he does not use the machine itself in his studies, he does use the gauze pads that have scent which has been trapped by the STU-100. . . ."

"DR. BRIAN A. ECKENRODE is a research chemist with the Counter-terrorism and Forensic Science Unit of the FBI. He has a bachelor of science in chemistry, a PhD in analytical chemistry, and post doctoral training at Oakridge National Laboratory. He spent the next eight years in industry conducting trace level organic methodology and instrumentation. He has been a research chemist with the FBI for the last five years. He is published in several areas, including sampling devices. . . ."

"REX STOCKHAM is a Supervisory Special Agent Hazardous Device Examiner in the Explosives Unit of the FBI laboratory. He has a bachelors of science in chemistry and a masters degree in forensic science. He joined the FBI in 1985 and has worked in the lab since 1988. He has participated in over 1000 criminal investigations. He has used scent dogs while working violent crimes and bloodhounds in human scent investigation of missing children cases. The FBI has completed a scent transfer ability study and is still working a submerged article scent transfer study. He is currently the Human Scent Evidence Team coordinator for the FBI. In this capacity he coordinates deployment of dogs used to trail human scent and directs where the dogs and scent evidence can best be applied. He has used the team over eight hundred times since 2000. . . ."

"TED HAMM is a civilian contract bloodhound scent discrimination dog handler. He works principally for the Los Angeles County Sheriff's Department, but also does work for the FBI, the Pasadena Police Department and a couple of other departments. He has trained bloodhounds since 1988 and participated in over twelve hundred (1200) criminal investigations with scent dogs. He has been a member of the FBI Human Scent Evidence Team for a couple of years. He is also a member of Los Angeles Search Dogs and the Bloodhound Handlers Coalition. He trained under the direction of senior dog handlers, attended seminars, read books, but has found hands on training the most helpful. He has taught fifty to sixty classes and seminars on crime investigations using human scent discrimination dogs. He has also taught the use of the STU 100. He has participated in field studies, research projects, both informal and formal studies with the FBI looking into different aspects of use for the dogs and the STU. He has participated in double blind studies."