P. v. Bocanegra
Filed 9/18/13 P. v. Bocanegra CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DIEGO BOCANEGRA et al.,
Defendants
and Appellants.
E055487
(Super.Ct.No.
FVA1101476)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Steven A. Mapes, Judge. Affirmed.
Jean
Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant Diego Bocanegra.
James
R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant Salvador Hernandez.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Andrew
Mestman and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and
Respondent.
A
jury convicted defendants and appellants Diego Bocanegra and Salvador Hernandez
(collectively, “defendantsâ€) of two counts of
Bracamontes and Carlos Vaquera (collectively, “victimsâ€) (Pen. Code,
§ 211—counts 1 & 2).
name="_ftnref1" title="">[1] The jury additionally found true allegations
defendants had personally used a firearm in their commission of the robberies
(§ 12022.53, subd. (b)); had committed the robberies for the benefit of, at the
direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)); and that a principal had personally used
a firearm in the commission of the robberies (§ 12022.53, subs. (b) & (e)(1)). The court sentenced defendants to an
aggregate, determinate term of imprisonment of 19 years, 4 months, consisting
of the following: the five-year
aggravated term for the robbery in count 1; 10 years for the personal use
enhancement on count 1; punishment stricken, on the gang enhancement on count
1; one third the midterm of three years (one year) consecutive on count 2; one
third the midterm of 10 years (three years, four months) consecutive for the
personal use enhancement on count 2; and punishment stricken for the gang
enhancement on count 2.
On
appeal, Hernandez contends the court abused its discretion in declining his
request for a Spanish interpreter, erred pursuant to Miranda
title="">[2] in permitting admission at trial of his
incriminating statement to police, abused its discretion in imposing the upper
term on the count 1 offense, and that his sentence violates federal and state
constitutional prohibitions against cruel and unusual punishment. Bocanegra maintains the court committed
inculpatory statement during trial and that insufficient
evidence supports the jury’s true findings on the gang enhancements. Defendants join each others’ arguments to the
extent they may benefit from them. We
affirm the judgment.
On
September 16, 2011,
sometime between 8:00 and 9:00 p.m., the victims started deejaying a
party in the backyard of a residence in Rialto. They had laptops, turntables, speakers,
colored stage lights, a mixer, and headphones.
Bracamontes was using his $17,000 MacBook Pro laptop, on a four-foot
table, behind which the victims stood while deejaying. Vaquera’s Sony Vaio laptop was also on the
table. Around 100 people were in the
backyard dancing at the party.
Vaquera
testified that after about an hour, Bocanegra came up the table, grabbed
Bracamontes’s laptop, and dropped it to the ground. Bracamontes reached down to get it. Bocanegra then pulled out a gun, pointed it
at the victims, and demanded the laptop.
Bracamontes handed Bocanegra the laptop; Bocanegra yelled, “This is
South Side Pomona, Mother Fucker.â€
Bocanegra handed off the gun to Hernandez, who was wearing a hat with
the letter “P†on it. Hernandez pointed
the gun at people at the party; someone took Vaquera’s laptop; defendants then
left together.
Bracamontes
testified Hernandez was the individual who initially knocked his laptop off the
table then picked it up, pointed the gun at his face, and demanded the laptop
or he would shoot. Hernandez was wearing
a hat with the letter “P†on it.
Hernandez handed off the gun to Bocanegra who pointed it at the victims. Bracamontes handed over his laptop. Defendants grabbed Vaquera’s computer and
left.
The
victims packed up their remaining equipment and went looking for
defendants. Their friend “Chuy†called
the police and also went looking for defendants. Chuy called the victims when police stopped
the vehicle in which defendants had left the party. The victims arrived at the location where the
police had stopped defendants less than an hour after the robbery.
Out
of a group of six individuals detained from the vehicle, the victims identified
Bocanegra and Hernandez as the individuals who robbed them. A .357 revolver and two laptops—a Mac Book
Pro and a Sony Vaio—were found in the vehicle.
Vaquera and Bracamontes were able to recover their laptops by proving
their ownership of them by logging onto the computers with their
passwords. Bracamontes identified the
revolver as the one pointed at the victims.
Rialto
police officer Ralph Ballew testified that when detained, Hernandez was wearing
a hat with the letter “P†on it.
Hernandez also had a tattoo on his left arm reading “SSP.†While at the Rialto jail booking defendants,
the jailer asked Ballew why so many of the people being booked were from
Pomona. Hernandez, who was seated on a
bench with three other individuals including Bocanegra, stated “‘Came to lame
ass Rialto to put in work and represent South Side.’â€
Pomona
police officer Jaime Martinez testified as the People’s expert gang
witness. Martinez, who was born and
raised in the south side of Pomona, had been a police officer in Pomona for six
years. He had been assigned to the Gang
Violence Suppression Unit for the preceding four years. Martinez testified he was very familiar with
the South Side Pomona (SSP) gang. In his
experience, he had contact with well over 1,500 gang members in Pomona. He had investigated and assisted in
investigations of numerous crimes committed by members of SSP, including
several in which firearms were used. He
had attended public schools, and he had worked with SSP members prior to
becoming a police officer. At one point,
he had even befriended a SSP member.
SSP
was originally a tagging crew in the 1970s that was part of a clique within the
12th Street gang. A SSP member named
Victor Hernandez, with whom Martinez was very familiar, requested permission
from the Mexican Mafia for SSP to become its own gang separate from 12th
Street. The Mexican Mafia granted
permission, but required SSP to earn its “trece†or gang designator by putting
in “work,†i.e., robberies, assaults, thefts, and felony vandalisms. SSP has been a recognized gang by the Pomona
Police Department since the early 1980s.
Martinez
testified there were currently approximately 35 active members and 35-40
associates in SSP. Members of SSP
usually wear clothing with the letter “P.â€
Members also wear clothing or have tattoos with the letters “S†and
“SSP.†Because members of SSP were still
trying to earn its “trece,†they would commit whatever crimes they could
wherever they could, especially outside of its territory, so SSP could make a
name for itself. Members “bang†or let
the victims of their crimes know what gang they are from in order to obtain
recognition.
The
hat worn by Hernandez is the type typically worn by SSP members. Likewise, Hernandez’s tattoo reading “SSP†is
typical of SSP gang members. Anyone who
had such a tattoo who was not a member of the gang would find himself in
trouble with the gang. Martinez opined
Hernandez was an active member of SSP.
Martinez
had had one prior contact with Bocanegra during which Bocanegra admitted he was
a member of SSP. Martinez had also reviewed
field interrogation cards on Bocanegra and spoken to other officers who had had
contact with him. Martinez opined
Bocanegra was an active member of SSP.
Martinez
testified SSP’s primary activities were “[f]elony vandalisms, burglaries,
robberies, assaults, assaults with deadly weapons, grand theft autos, thefts,
witness intimidation, [and] extortions.â€
Documented SSP member Max Nunez was convicted on May 24, 2011, for
making criminal threats and a true finding was rendered that the offense was
gang related. Martinez had had numerous
contacts with Nunez and had arrested him on one occasion. John Rodriguez, another documented SSP
member, was convicted of carrying a concealed firearm and possession of a
controlled substance for sale on May 4, 2011.
Martinez had had contact with Rodriguez on several occasions and once
assisted in his arrest.
Bocanegra
testified that although he was at the party with 10 other people, most of whom
were SSP members, he did not commit the robbery or point a gun at anyone. He testified he was not a member of SSP, but
knows members of SSP from school and his community where he spends time with
them. Hernandez was a member of SSP at
one point in time, but was no longer.
Hernandez did not commit the robbery either.
Bocanegra
testified he witnessed the robbery; it was committed by a man named Irving
Sisneros who looked like Bocanegra and with whom Bocanegra came to the
party. Sisneros yelled “South Side
Pomona, Mother Fucker†when he committed the robbery. Bocanegra left the party with Sisneros, who
fled from the scene when the vehicle was stopped by police. There were six people in the car when it was
stopped; some of them were SSP members.
The stolen laptops were in the vehicle.
A. SPANISH INTERPRETER
Hernandez
contends the trial court abused its discretion when it denied his request for a
Spanish interpreter. We disagree.
“The
right to an interpreter has its underpinnings in a number of state and federal
constitutional rights. These include a
defendant’s rights to due process, to confrontation, to effective assistance of
counsel, and to be present at trial.
[Citation.] The California
Constitution provides that a criminal defendant who does not understand English
‘has a right to an interpreter throughout the proceedings.’ [Citation.]â€
(People v. Romero (2008) 44
Cal.4th 386, 410.)
“[W]hen
the ability of one charged with a crime to understand English is being
evaluated at the outset of the proceedings, the burden is on the accused to
show that his understanding of English is not sufficient to allow him to
understand the nature of the proceedings and to intelligently participate in
his defense.†(In re Remundo (1988) 203 Cal.App.3d 1447, 1454.)
“‘The
question of the necessity
a matter for judicial determination over which the trial court is permitted to
exercise its discretion.’
[Citations.]†(
power to decide an issue, a reviewing court will not disturb that decision
unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination . . . .’â€â€™ [Citation.]â€
(Id. at p. 1456.) “This exercise of discretion should not be
reversed unless there is a complete lack of any evidence in the record that the
accused does understand English, thereby rendering the decision totally
arbitrary.†(Ibid.)
Hernandez
indicated he would like a Spanish interpreter largely because he did not
understand the legal terminology or procedures communicated to him by defense
counsel. Although Hernandez stated, “I
really don’t understand in English,†the court thoroughly examined Hernandez’s
educational background in English.
Defendant stated he started his education in Kindergarten in the United
States with instruction in both English and Spanish. His first grade instruction was in English
only. He was taught how to read and
write in English. He took tests in
English. He passed from first through
eleventh grades with instruction in English.
He was never taught to read in Spanish.
He never took tests in Spanish.
Defense
counsel informed the court, “I have solely and exclusively spoken to . . .
Hernandez in the English language. He
proceeded to preliminary hearing . . . in the English language entirely.†Neither defendant used an interpreter at the
preliminary hearing. Defense counsel
further observed, “in the approximately three months that I’ve been dealing
with this case, . . . Hernandez has neither indicated any sort of a failure to
understand when I am speaking to him in English, nor has he ever previously
requested any sort of an interpreter.â€
The
court found, “you don’t need an interpreter.
My belief is you don’t even know how to read Spanish. And even if these legal words were written in
Spanish, you wouldn’t know what they were.â€
The court further noted that most people who are native English speakers
do not understand legal jargon. Thus,
the court denied defendant’s request.
Hernandez
failed his burden of proving he did not have a sufficient understanding of
English. As the court’s questioning
revealed, Hernandez had been educated primarily, if not solely, in English for
most of his life. He was not educated in
Spanish. Hernandez had never previously
indicated any problem understanding English to his attorney or the court. Thus, the court acted within its discretion
in denying Hernandez’s request.
B. MIRANDA
Hernandez
contends the court erred in refusing to exclude from trial his statement to
officers that he, “‘Came to lame ass Rialto to put in work and represent South
Side.’†We disagree.
Prior
to trial, Hernandez sought to exclude evidence of his statement. Ballew testified Hernandez and Bocanegra were
sitting on the bench outside the interview room. As Ballew exited the interview room
processing paperwork, one of the jailers said to him, “‘What are these guys
doing in Rialto? They’re all from
Pomona.’†Hernandez overheard the
question and spontaneously said, “‘Came to lame ass Rialto to put in work and
represent South Side.’†Ballew was not
interviewing Hernandez at the time. Six
individuals were on the bench when Hernandez made the statement.
exclude the statement.
“Defendants
who are in custody must be given Miranda warnings before police officers
may interrogate them. [Citation.] . .
. ‘[T]he Miranda safeguards come
into play whenever a person in custody is subjected to either express
questioning or its functional equivalent.
That is to say, the term “interrogation†under Miranda refers not
only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response
from the suspect. The latter portion of
this definition focuses primarily upon the perceptions of the suspect, rather
than the intent of the police.’
[Citation.] [¶] ‘“Clearly, not all conversation between an
officer and a suspect constitutes interrogation. The police may speak to a suspect in custody
as long as the speech would not reasonably be construed as calling for an
incriminating response.â€â€™
[Citations.]†(
198.)
“‘Interrogation
thus refers to questioning initiated by the police
its functional equivalent, not voluntary conversation. [Citation.]
“‘Volunteered
of any kind are not barred by the Fifth Amendment . . . .Չۉ۪ [Citations.]
Consequently, the police ‘may speak to a suspect in custody as long as
the speech would not reasonably be construed as calling for an incriminating
response.’ [Citation.]†(People
v. Gamache (2010) 48 Cal.4th 347, 387-388.)
“Although
we review
the record and independently decide whether the challenged statements were
obtained in violation of Miranda, . . . we may ‘“give great weight to the considered
conclusionsâ€â€™ of the trial court.
[Citations.]†(
380.) “When reviewing a trial court’s
determination that a defendant did not undergo custodial interrogation, an
appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual
findings regarding the circumstances surrounding the interrogation, and it must
independently decide whether, given those circumstances, ‘a reasonable person
in [the] defendant’s position would have felt free to end the questioning and
leave’ [citation].†(
1370, 1400.)
Here,
although defendant was in custody when he made the statement, it was not in
response to any question posed him.
Ballew testified both before and during trial he was not interviewing
Hernandez when Hernandez made the statement.
Likewise, the jailer had directed his question to Ballew, not Hernandez,
when the latter made the incriminating remark.
Rather, Hernandez volunteered the statement. Moreover, there were at least four
individuals on the bench at the time the jailer queried Ballew regarding the
suspects’ home city. Thus, Hernandez
could not reasonably believe the question was either expressly or implicitly
directed at him. Furthermore, even if
directed at Hernandez, the question was not one that would normally be used to
solicit incriminating statements.
Therefore, the statement was neither made in response to interrogation
nor was the jailer’s question one that would normally call for an incriminating
response. The court acted appropriately
in permitting the statement’s admission into evidence.
C. CRAWFORD
Bocanegra
contends the court erred pursuant to Crawford,
supra, 541 U.S. 36 in admitting
Hernandez’s statement because he was never given the opportunity to
cross-examine Hernandez regarding the statement. Bocanegra maintains the statement was
testimonial and, therefore, per se excludable pursuant to Crawford. In the event we do
not find Hernandez’s statement testimonial, Bocanegra argues the decisions in
another ground as recognized in People v. Fletcher (1996) 13 Cal.4th
451, 465) and Bruton v. United States
(1968) 391 U.S. 123 (Bruton) compel
its exclusion regardless. In any event,
defendant contends the admission of the statement deprived him of due
process. We disagree.
1. TESTIMONIAL
“The
Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’ [T]his bedrock
procedural guarantee applies to both federal and state prosecutions. [Citation.].†(Crawford,
the Sixth Amendment demands what the common law required: unavailability and a
prior opportunity for cross-examination. . . .
Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.†(
reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.†(Id.
at pp. 68-69.)
“The
text of the Confrontation Clause reflects this focus. It applies to ‘witnesses’ against the
accused—in other words, those who ‘bear testimony.’ [Citation.]
‘Testimony,’ in turn, is typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’ [Citation.] An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.†(
“Various formulations of this core class of ‘testimonial’ statements
exist: ‘ex parte in-court
testimony or its functional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially,’ [citation]; ‘extrajudicial statements
. . . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,’ [citation];
‘statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at
a later trial’ [citation.]†(
course of interrogations are also testimonial under even a narrow
standard.†(Id. at p. 52.)
In
Davis v. Washington (2006) 547 U.S.
813, the court found it necessary to provide a more comprehensive definition of
“testimonialâ€: “Statements are
nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later
at p. 822, fn. omitted.) “A 911 call . .
. and at least the initial interrogation conducted in connection with a 911
call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some
past fact, but to describe current circumstances requiring police assistance.†(Id.
at pp. 827.) Nonetheless, where an
officer interviews a victim after any threat of danger had dissolved,
statements made by the victim to the officer are “testimonial†because they are
made primarily, if not, solely, for the purpose of investigating a crime. (Id.
at pp. 827, 829-830, 832.)
Here,
Hernandez’s statement was not testimonial.
Hernandez was not being interviewed.
Rather, Hernandez’s statement was a spontaneous, volunteered exclamation
in response to the jailer’s query of Ballew while Hernandez was seated on a
bench with others outside the interview room.
As such, there was no degree of formality or solemnity in the
circumstances giving rise to the statement.
Hernandez’s statement was not solicited; the jailer’s question could not
be viewed as the type made in order to assist in an investigation as it had
nothing to do with the crimes. Since the
statement was not testimonial, Bocanegra’s right to confrontation was not
violated by the court’s admission of the statement. The court acted appropriately in admitting
the statement.
2. NONTESTIMONIAL
EXCLUSION
Bocanegra
contends that under Bruton, even
nontestimonial statements by a codefendant may be excluded as violative of the
Sixth Amendment’s confrontation clause.
We disagree.
In
Bruton, supra, 391 U.S. 123, the court held: “[T]he right of cross-examination is included
in the right of an accused in a criminal case to confront the witnesses against
him’ secured by the Sixth Amendment, [citation]; ‘a major reason underlying the
constitutional confrontation rule is to give a defendant charged with crime an
opportunity to cross-examine the witnesses against him.’ [Citation.]â€
(Id. at p. 126.) A jury convicted Bruton after the court
admitted the confession of his codefendant, Evans, which inculpated Bruton by
name. The confession was made to a
postal inspector during an in-jail interrogation conducted after city police
officers had already obtained a confession from Evans. On appeal, Evans’s confession was held
inadmissible as violative of Miranda. On retrial, Evans was acquitted. (Bruton,
at pp. 125-126.)
Although
Crawford mentioned
at p. 57), it never expressly overruled or acknowledged that its decision in
any way replaced Bruton. Nevertheless, dictum in Crawford strongly suggested the Confrontation Clause no longer
applied to nontestimonial statements. (
doubt on previous holding that confrontation clause applied to nontestimonial
statements].) Indeed, a long line of
subsequent state and federal cases, including decisions by the United States
Supreme Court itself, have expressly ruled Crawford
eliminated confrontation clause protection for nontestimonial statements. (People
v. Arceo (2011) 195 Cal.App.4th 556, 575 [“[T]he confrontation clause
applies only to testimonial statementsâ€]; People
v. Gutierrez (2009) 45 Cal.4th 789, 812 [“Only the admission of testimonial
hearsay statements violates the confrontation clauseâ€]; United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85
[“The threshold question in every case is whether the challenged statement is
testimonial. If it is not, the
Confrontation Clause ‘has no application’â€]; United States v. Johnson (6th Cir. 2009) 581 F.3d 320, 326
[“Because it is premised on the Confrontation Clause, the Bruton rule,
like the Confrontation Clause itself, does not apply to nontestimonial
statementsâ€]; Davis v. Washington,
testimonial statements “cause the declarant to be a ‘witness’ within the
meaning of the Confrontation Clauseâ€]; Whorton
v. Bockting (2007) 549 U.S. 406, 420 [Crawford
eliminated “Confrontation Clause protection against the admission of unreliable
out-of-court nontestimonial statementsâ€]; Michigan
v. Bryant (2011) 131 S.Ct. 1143, 1153 [“We therefore limited the
Confrontation Clause’s reach to testimonial statementsâ€].)
Moreover,
even to the extent Bruton could be
construed as providing confrontation clause protection to certain
nontestimonial statements, we would find it inapplicable here. First, unlike Bruton, the statement here was not made under interrogation. Second, the statement by Hernandez was not
found violative of Miranda. Third, Hernandez’s statement did not
expressly inculpate Bocanegra. Hernandez
did not mention Bocanegra’s name nor did he say, “We ‘came to lame ass Rialto to put in work and represent South
Side.’†(Italics added.) Rather, the statement would appear to
inculpate only Hernandez himself.
Furthermore, Hernandez was seated on the bench with three other individuals,
only one of whom was Bocanegra. Thus,
even to the extent his remark could be construed as including someone other
than himself, there was no way it expressly implicated Bocanegra. Finally, the court instructed the jury both
before the admission of the statement and after trial with CALCRIM No. 305
informing it that it could not use the statement against Bocanegra.
of nontestimonial evidence, which powerfully implicated Bocanegra such that it
should have been excluded as violative of the
3. DUE
PROCESS
Bocanegra
further maintains that admission of Hernandez’s statement violated his right to
due process pursuant to Aranda and
We disagree.
As
stated ante, “[T]he right of
cross-examination is included in the right of an accused in a criminal case to
confront the witnesses against him’ secured by the Sixth Amendment, [citation];
‘a major reason underlying the constitutional confrontation rule is to give a
defendant charged with crime an opportunity to cross-examine the witnesses
against him.’ [Citation.]†(Bruton,
supra, 391 U.S. at p. 126.) “‘Indeed, we have expressly declared that to
deprive an accused of the right to cross-examine the witnesses against him is a
denial of the Fourteenth Amendment’s guarantee of due process of law.’†(
United States Supreme Court that the due process clause requires such change,
the rules we now adopt are to be regarded, not as constitutionally compelled,
but as judicially declared rules of practice to implement section 1098.†(Aranda,
supra, 63 Cal.2d at p. 530, fn.
omitted.)
In
Aranda, the defendant’s codefendant
confessed, during a series of police interrogations, that he and Aranda had
committed a robbery. (
The codefendant testified at trial and denied making the confession;
admission of the confession was later determined to be constitutionally infirm
and the codefendant’s conviction was reversed.
(Id. at p. 523.) The court held that, “When, however, the
confession implicating both defendants is not admissible at all, there is no
longer room for compromise. The risk of
prejudicing the non-confessing defendant can no longer be justified by the need
for introducing the confession against the one who made it.†(Id.
at p. 525.)
First,
any due process argument regarding the inadmissibility of Hernandez’s statement
as prejudicial to Bocanegra is largely, if not entirely, subsumed within the
Sixth Amendment confrontation clause analysis.
Bruton recognized that
admission of a non-admissible codefendant’s statement against another was a due
process violation largely because the defendant was not permitted the right to
confront the witness regarding the statement.
(Bruton, supra, 391 U.S. 123 at p. 131, fn. 5.) On the other hand, Aranda noted that the United States Supreme Court had, as of that
time, not rendered a decision as to whether admission of a codefendant’s prior
statement inculpating another defendant without the right of confrontation was
a violation of due process; thus, the court ruled the practice violated
judicially implemented rules regarding state statutory law. (Aranda,
supra, 63 Cal.2d at p. 530.) Second, both Aranda and Bruton are
factually distinguishable. Unlike in
those cases, Hernandez’s statement has never been found inadmissible. Moreover, unlike Burton and Aranda,
Hernandez’s statement was not the result of custodial interrogation. Furthermore, Hernandez’s statement did not
directly implicate Bocanegra. Thus, the
admission of Hernandez’s statement was not “‘so unduly prejudicial that it
render[ed] the trial fundamentally unfair.’ [Citation.]â€
(People v. Bivert (2011) 52 Cal.4th 96, 118.) Therefore, there was no due process
violation.
4. HARMLESS
ERROR
Even
assuming Hernandez’s statement was erroneously admitted, we hold the admission
harmless. Crawford, Aranda, and
harmless error standard under the rule in Chapman
v. California (1967) 386 U.S. 18, i.e., whether the error was harmless
beyond a reasonable doubt. (
616, 652.)
Here,
both victims identified Bocanegra as pointing a gun at them. Both victims testified Hernandez also handled
the gun; Bracamontes testified Hernandez pointed the gun at both the
victims. Vaquera testified Bocanegra
yelled, “This is South Side Pomona, Mother Fucker.†Martinez had been present when Bocanegra had
previously admitted to membership in SSP.
Hernandez had a hat on with the letter “P†which Martinez testified was
SSP gang wear. Hernandez also had a
tattoo reading “SSP†which Martinez likewise testified was indicia of
membership in SSP. Martinez opined both
defendants were members of SSP and needed to put in work to earn SSP its
“trece.†Both victims identified
defendants as the robbers, within an hour of the robbery, out of a group of six
individuals. The stolen laptops and the
gun utilized in the robbery were found within the car in which defendants were
stopped. Thus, overwhelming evidence,
excluding Hernandez’s statement, supported defendant’s convictions and the true
findings on the attached enhancements.
Any error in admitting Hernandez’s statement was, therefore, harmless
beyond a reasonable doubt.
D. SUFFICIENT EVIDENCE SUPPORTS THE TRUE
FINDINGS ON THE GANG ENHANCEMENTS
Bocanegra
contends insufficient evidence supported the jury’s true findings on the gang
enhancements, specifically the prong requiring the jury to find that SSP’s
primary activities were one or more of the statutorily enumerated crimes. We disagree.
“‘In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] “A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.â€
[Citation.]’ [Citation.] The same test applies to the review of
special circumstantial findings.
[Citation.]†(
1145, 1170.)
“Section
186.22, subdivision (b)(1), enhances the sentence for ‘any person who is
convicted of a felony committed for the benefit of, at the direction of, or in
association with any
the specific intent to promote, further, or assist in any criminal conduct by
gang members . . . .’ [Citation.]†(People
v. Livingston, supra, 53 Cal.4th
at p. 1170.) Pursuant to the statue a
“‘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 subdivision (e). (§
186.22, subd. (f).) “Evidence of past or
present conduct by gang members involving the commission of one or more of the
statutorily enumerated crimes is relevant in determining the group’s primary
activities. Both past and present
offenses have some tendency in reason to show the group’s primary
activity . . . .†(
Cal.4th 316, 323.) “Sufficient proof of
the gang’s primary activities might consist of evidence that the group’s
members consistently and repeatedly have committed criminal activity
listed in the gang statute. Also
sufficient might be expert testimony.
[Citation.]†(
Here,
Martinez testified SSP’s primary activities included “[f]elony vandalisms,
burglaries, robberies, assaults, assaults with deadly weapons, grand theft
autos, thefts, witness intimidation, [and] extortions.†Martinez also testified that SSP gang member
Max Nunez had been convicted on May 24, 2011, for making criminal threats and a
true finding was rendered that the offense was gang related. SSP member John Rodriguez had been convicted
on May 4, 2011, of carrying a concealed firearm and possession of a controlled
substance for sale. Martinez testified
SSP members were attempting to earn their “trece†by putting in “work†such as
robberies, assaults, thefts, and felony vandalisms. Martinez’s testimony was substantial evidence
supportive of the jury’s finding that SSP’s primary activities were statutorily
enumerated crimes. (People v. Margarejo (2008) 162 Cal.App.4th 102, 107-108 [expert
gang witnesses’ testimony that gang’s activities included statutorily
enumerated offenses sufficient evidence to support primary activities prong];
1448, 1464-1465 [same].)
Bocanegra
cites In re Alexander L. (2007) 149
Cal.App.4th 605, for the proposition the evidence here was insufficient to
support the primary activities prong of the gang enhancement. However, in Alexander L., the expert merely testified “‘I know [the gang]
committed quite a few assaults with a deadly weapon, several assaults. I know
they’ve been involved in murders.
[¶] I know they’ve been involved
with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic
violations.’†(Id. at p. 611.) The court
noted the officer never specified the crimes were the gang’s “primary
activities.†Moreover, the court held
the officer’s testimony lacked adequate foundation because it was never
established how the officer knew those crimes were committed by the gang. (Id.
at p. 612.)
Here,
unlike In re Alexander L., Martinez,
the People’s expert gang witness, specifically testified SSP’s “primary
activities†were “[f]elony vandalisms, burglaries, robberies, assaults,
assaults with deadly weapons, grand theft autos, thefts, witness intimidation,
[and] extortions.†Moreover, more than
adequate foundation was laid for Martinez’s opinion. Martinez was “very familiar†with SSP. He had been born and raised in SSP
territory. When younger, he went to
school and worked with SSP members. He
had at one point befriended a SSP member.
As
a police officer he had been assigned to the Gang Violence Suppression Unit in
Pomona for four years. As an officer he
had had contact with well over 1500 gang members. Martinez had investigated “numerous crimes,â€
including firearm offenses, committed by SSP members. He was personally familiar with Victor
Hernandez, one of the founding members of SSP.
He had had one prior contact with Bocanegra where Bocanegra admitted
being a SSP member, had reviewed field interrogation cards on Bocanegra
completed by other officers, and spoken with other officers regarding
Bocanegra. Martinez had had numerous
contacts with SSP member Max Nunez and had arrested him on one occasion. He had had contact with SSP member John
Rodriguez on several occasions and had assisted in his arrest on one
occasion. Thus, adequate foundation was
laid for Martinez’s opinion SSP’s primary activities were statutorily
enumerated crimes such that substantial evidence supported the jury’s true
findings on the gang enhancements.
E. IMPOSITION OF UPPER TERM ON COUNT 1
Hernandez
argues the sentencing court abused its discretion in imposing the upper term on
the count 1 offense. We disagree.
“Within
the limits set forth by the Legislature, a trial court has broad
. . whether to select the upper, middle, or lower term of imprisonment (§ 1170, subd. (b); Cal. Rules of Court,
rule 4.420(b))[.]†(People v. Clancey (2013) 56 Cal.4th 562, 498.) “In determining the appropriate term, the
court may consider the record in the case, the probation officer’s report,
other reports . . . and statements in aggravation or mitigation submitted by
the prosecution, the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term
which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the
reasons for imposing the term selected and the court may not impose an upper
term by using the fact of any enhancement upon which sentence is imposed under
any provision of law.†(§ 1170, subd.
(b).) The sentencing court’s decision is
subject to review for abuse of discretion.
(People v. Sandoval (2007) 41
Cal.4th 825, 847.)
“[A]
trial court will abuse its discretion . . . if it relies upon circumstances
that are not relevant to the decision or that otherwise constitute an improper
basis for decision. [Citation.]†(People
v. Sandoval, supra, 41 Cal.4th at
p. 847.) Defendants bear a heavy burden
when attempting to show an abuse of discretion.
(People v. Aubrey (1998) 65
Cal.App.4th 279, 282.) “‘In the absence
of such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.’ [Citation.]â€
(People v. Superior Court (
977-978.)
Here,
the court indicated its tentative determination regarding defendants’
sentencing. It acknowledged defendants’
youth and the fact that no one was harmed in the commission of the offense in
its determination to strike the 10-year consecutive term for the gang
enhancements. It then permitted argument
on the matter. Hernandez’s defense
counsel acknowledged, “the Court has really been quite generous in terms of
making†its tentative sentencing recommendation. He likewise admitted Hernandez “has not shown
remorse, that is very true.â€
Nonetheless, counsel requested imposition of the low term on count 1
based on Hernandez’s lack of a prior record, the affect such a long sentence
would have on him, and his youth.
Hernandez’s counsel disagreed with the probation officer’s notation
Hernandez would be a danger to others if not imprisoned.
The
court chose to impose “the five years as a base term. I believe I have authority to do that. And so that’s what I’m doing. Should be noted that I, basically, reduced
the potential of their exposure by 11 years and 8 months. . . . [¶] .
. . I’ve considered many factors related to the defendants in this case and
balanced that with what justice demands in this case. And I believe that the sentence is an
appropriate sentence . . . .†The court’s consideration of the factors
relevant to the respective defendants and its determination to balance the
needs of justice with defendants’ youth and the fact that no one was hurt in
the instant crimes were in proper exercise of its sentencing discretion. (People
v. Sandoval, supra, 41 Cal.4th at
pp. 846-847 [“The trial court [is] required to specify
for its sentencing decision, but [is not] required to cite ‘facts’ that support
its decision or to weigh aggravating and mitigating circumstancesâ€].) Here, defendants did not simply use a gun in
their commission of the robbery, but pointed it directly at the victims and
others at the party. Moreover,
Bracamontes was verbally threatened with being shot. The court’s imposition of the aggravated term
on the count 1 offense was within its discretion.
F. CRUEL AND/OR UNUSUAL PUNISHMENT
Hernandez
contends the court’s sentence of 19 years, 4 months violated the state and
federal constitutional prohibitions against cruel and/or unusual
punishment. We disagree.
First,
we note defendant forfeited the contention by failing to raise it below. (People
v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5; People v. Norman (2003) 109 Cal.App.4th 221, 229.) Second, we find the merits of defendant’s
argument wanting. The Eighth Amendment
“prohibits imposition of a sentence that is grossly disproportionate to the
severity of the crime.†(
271 (Rummel).) But “[o]utside the context of capital
punishment, successful challenges to the proportionality of particular
sentences have been exceedingly rare.†(
Kennedy, J.).)
“A
punishment may violate the California Constitution . . . if ‘it is so
disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.’ [Citation.]â€
(People v. Cartwright (1995)
39 Cal.App.4th 1123, 1136 (Cartwright),
quoting In re Lynch (1972) 8 Cal.3d
410, 424.) The court, in applying this
standard, examines the offense and the offender, and it compares the punishment
with the penalties for other California offenses and crimes in other
jurisdictions. (Cartwright, at p. 1136; Lynch,
at pp. 425-427.)
California
sentencing statutes, however, “have long withstood constitutional
challenge.†(Cartwright, supra, 39
Cal.App.4th at p. 1137.) “Only in the
rarest of cases could a court declare that the length of a sentence mandated by
the Legislature is unconstitutionally excessive.†(People
v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Here,
defendants’ sentences are not disproportionate when compared to other crimes
that do not result in death but result in substantial sentences. (See People
v. Felix (2003) 108 Cal.App.4th 994, 1000-1001 [10-year enhancement not
cruel and unusual punishment even if juvenile offender had no documented
criminal history]; People v. Villegas
(2001) 92 Cal.App.4th 1217, 1230-1231 [Affirming 40-years-to-life sentence for
17-year-old gang member with no prior convictions for attempted murder with
firearm enhancement]; People v. Cisneros
(Colo. 1993) 855 P.2d 822, 830 [life without the possibility of parole for 40
years not cruel and unusual punishment for possession and sale of drugs with
priors of sales of narcotics, menacing with a knife, and violation of bail
conditions].)
Even
if California statutes impose the longest sentences in the nation, it does not
mean defendants’ punishment is cruel and unusual. (People
v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required to conform its
Penal Code to either the majority rule or “‘the least common denominator of
penalties nationwide.’ [Citation.]†(Ibid.) We conclude defendants’ sentences are not so
disproportionate “‘as to shock the conscience and offend fundamental notions of
human dignity.’ [Citation.]†(People
v. Cline (1998) 60 Cal.App.4th 1327, 1338 [Fourth Dist., Div. Two].)
Defendants
fare no better under the federal standard. The hurdles defendants must surmount to
demonstrate cruel and unusual punishment under the federal Constitution are, if
anything, higher than under the state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases
cited.) Strict proportionality between
crime and punishment is not required.
“‘Rather, [the Eighth Amendment] forbids only extreme sentences that are
“grossly disproportionate†to the crime.’
[Citation.]†(
501 U.S. at p. 1001.)
In
Rummel, supra, 445 U.S. 263, the United States Supreme Court rejected an
Eighth Amendment challenge to a life sentence based on the defendant’s
conviction for credit card fraud of $80, passing a $28.36 forged check, and
obtaining $120.75 by false pretenses. (
501 U.S. 957, the high court ruled that a mandatory sentence of life without
the possibility of parole for possession of 672 grams of cocaine did not
violate the Eighth Amendment. (
worse than all the crimes committed by Rummel
and Harmelin combined. Defendants pointed a gun at the victims; threatened
to shoot unless they obtained the victims’ laptops; stole the victims’ laptops,
one of which was worth $17,000; and did so, at least in part, for the purpose
of gaining notoriety for their gang.
In
addition, the United States Supreme Court has upheld statutory schemes that
result in life imprisonment for recidivists upon a third conviction for a
nonviolent felony, in the face of challenges that such sentences violate the
federal constitutional prohibition against cruel and unusual punishment. (See Ewing
v. California (2003) 538 U.S. 11, 18, 30-31 [25-year-to-life sentence under
“Three Strikes†law for theft of three golf clubs worth $399 apiece];
82-83 [two consecutive 25-year-to-life terms for two separate thefts of less
than $100 worth of videotapes].)
The
protection afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’â€
and “‘extreme’†case. (
case. Hernandez exposits
for the proposition the sentences of 19 years, 4 months in this case are cruel
and unusual. However, that decision
determined only that “mandatory life-without-parole sentences for juveniles
violate the Eighth Amendment.†(Id.
at p. 2464, fn. omitted.) Here,
defendants were not sentenced to life without parole. Nor was the sentence imposed a virtual life
sentence as defendants were 17 and 18 years of age at the time of
sentencing. Both defendants were awarded
144 days of credit for time served. Even
if neither defendant earned any conduct credit while imprisoned, they would
both be released well before their fortieth birthdays. Defendants’ sentences were neither violative
of the state nor federal constitutional prohibitions against cruel and/or
unusual punishment.
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
title=""> [2] Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda).
