P. v. Contreras

Filed 2/7/08 P. v. Contreras CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. ORIGINAL PROCEEDING; petition for writ of habeas corpus. Judgment affirmed; petition denied.

Jeffrey D. Gold for Defendant and Appellant and Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Ricardo Mendez Contreras appeals from a judgment of conviction entered after a jury trial and petitions this court for a writ of habeas corpus. Defendant was convicted of first degree murder (Pen. Code,  187, subd. (a)), in the commission of which he personally used and discharged a firearm, causing great bodily injury and death (id.,  12022.53, subds. (b)-(d)). He was convicted of attempted premeditated murder (id.,  187, subd. (a), 664), in the commission of which he personally used and discharged a firearm, causing great bodily injury (id.,  12022.53, subds. (b)-(d)). He was convicted of shooting at an occupied motor vehicle (id.,  246), in the commission of which he inflicted great bodily injury and death (id.,  12022.55). He also was convicted of possession of a firearm by a felon (id.,  12021, subd. (a)(1)) and possession of ammunition (id.,  12316, subd. (b)(1)). The trial court sentenced defendant to state prison for a term of 50 years to life with the possibility of parole.

On appeal and on petition for writ of habeas corpus, defendant raises a number of contentions, most of which are based on a claim of erroneous admission of evidence of gang membership. We conclude the evidence properly was admitted and therefore affirm the judgment and deny the petition for writ of habeas corpus.

FACTS

A. Prosecution

In late March 2006, defendant agreed to purchase marijuana from Jose Campos (Campos). Campos gave defendant 10 pounds of marijuana, and defendant agreed to pay him $3,000 in a day or two.

On the evening of March 28, Campos called defendant a number of times, requesting his money. Eventually, defendant agreed to pay him and told him to meet defendant near a park on Atlantic Place in Long Beach. Campos and his uncle, Jorge Lara (Lara), went to the designated location. The area was dark and Campos thought it was dangerous, so he parked nearby, where it was lighter. He called defendant on Laras cell phone and let him know where he was parked.

A short time later, defendant drove alongside Camposs car. Defendant rolled down his car window and told Campos, Im going to really pay you now. Im going to pay you. Defendant fired several shots into Camposs car. Bullets struck Campos in the arm and Lara in the head. Defendant then drove away.

Campos ran to a nearby gas station and had the attendant call the police. A nearby resident also called the police.

Paramedics arrived and took Campos and Lara to the hospital. Lara had been shot four times. One bullet had hit Lara in the eye and passed through his brain, putting him in a coma. He died from his injuries on May 26, 2006. Campos was treated for the injury to his arm.

The police interviewed Campos at the hospital. He was afraid to tell them the truth because he was afraid of being arrested for selling marijuana. After learning that Lara was in a coma, however, Campos told the police about his deal with defendant and that the car from which the shots were fired was similar to defendants car. Not until two days before trial did Campos tell the police that he could positively identify defendant as the shooter. At trial, he identified defendant as the shooter.

On April 4, 2006, defendant sold his car. The police impounded the car on April 6. They observed two bullet holes on the drivers side of the car.

Defendant was arrested on April 6, 2006. Long Beach Police Detective Mark Sisneros interviewed defendant. Defendant told him that on the afternoon of March 28, 2006, he loaned his car to Jose Pacheco (Pacheco), also known as Black. Pacheco was a friend from Compton Tiny Gangsters, a gang of which defendant had been a member since he was 13 years old. When Pacheco returned the car five hours later, it had bullet holes in it. Afraid the car had been involved in a shootout, defendant sold it.

Defendant denied any involvement in the shooting. He explained that Campos had called him on March 28, 2006 looking for Pacheco, who owed him $3,000 for marijuana Campos had sold to Pacheco.[1] Defendant located Pacheco, who acknowledged he had to pay Campos for the marijuana. Defendant loaned his car to Pacheco then called Campos to arrange a meeting between Campos and Pacheco.

Detective Sisneros left defendant with Detective Brad Scavone, who knew defendant from a previous encounter. Defendant told Detective Scavone that his car was involved in a shooting and asked if his being in the car changed anything. Detective Scavone told him that he would bear some responsibility. Detective Scavone asked defendant to talk to Detective Sisneros about being in the car, but defendant refused. Defendant was released but was rearrested on April 27, 2006.

B. Defense

Detective Sisneros and Officer Jesus Fragosa interviewed Campos on April 5, 2006 and told him it was time to tell the truth about the shooting. Campos said that he had known defendant for about a month. Campos said he had sold drugs only once. He also said he did not see who shot him. On April 11, however, Campos said that he had sold marijuana to defendant three times over the past several months.

When Campos was interviewed on November 15, 2006, he told Officer Fragosa that he did not see defendant in the car from which the shots were fired; he only saw someone who could have been defendant. At that time, Campos appeared to be afraid to talk about the shooting.

Defendants sister, Barbara Contreras, lived with defendant and their mother. She noted that Pacheco occasionally borrowed defendants car. On the evening of March 28, 2006, defendant was at home, but his car was gone. He went to the liquor store at about 6:45 p.m. but returned home shortly thereafter.

DISCUSSION

Defendant challenges the admission of evidence that he was a gang member as irrelevant and prejudicial. The trial court found the evidence relevant to the issue of Camposs credibility, specifically, to explain his initial reluctance to identify defendant based on fear of gang retaliation. The trial court also found the evidence more probative than prejudicial.

Only relevant evidence is admissible at trial. (Evid. Code,  350.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Id.,  210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id.,  400, 402.) We review the trial courts determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)

Evidence Code section 352 gives the trial court the discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (Peoplev.DeSantis (1992) 2 Cal.4th 1198, 1226.) We will not disturb the trial courts exercise of its discretion on appeal unless the court has abused its discretion (Peoplev. Minifie (1996) 13 Cal. 4th 1055, 1070), i.e., if its decision exceeds the bounds of reason (DeSantis, supra, at p. 1226).

As with any other evidence, we review the trial courts decision to admit evidence pertaining to gangs and gang membership for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Waidla, supra, 22 Cal.4th at p. 717.) Gang evidence clearly has a potential for prejudice. (Carter, supra, at p. 1194; People v.Albarran (2007) 149 Cal.App.4th 214, 223.) When it meets the test of relevancy, however, it is admissible unless its prejudicial effect clearly outweighs its probative value. (Carter, supra, at p. 1194; People v. Cardenas (1982) 31 Cal.3d 897, 904-905.)

The trial court properly admits gang evidence when it is relevant to a material issue at trial. (People v.Hernandez (2004) 33 Cal.4th 1040, 1049; People v.Martinez (2003) 113 Cal.App.4th 400, 413.) It is not admissible when its only purpose is to prove defendants criminal disposition or bad character in order to create an inference defendant committed the charged offenses. (People v. Albarran, supra, 149 Cal.App.4th at p. 223; accord, Evid. Code,  1101, subd. (a).)

Evidence of a defendants gang membership is admissible on the issue of witness credibility. (People v. Martinez (2003) 113 Cal.App.4th 400, 414; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Evidence that a witness is fearful of retaliation for implicating or testifying against a gang member is relevant to the issue of the witnesss credibility, especially where the witness has given inconsistent statements concerning a crime. (Martinez, supra, at p. 414; Sanchez, supra, at pp. 1449-1450.) Here, evidence that defendant was a gang member was relevant to the issue of Camposs credibility, i.e., it explained his initial reluctance to implicate defendant in the shootings and his statements to police which were inconsistent with his trial testimony. The evidence therefore was admissible. (Martinez, supra, at p. 414; Sanchez, supra, at pp. 1449-1450.)

Inasmuch as Camposs credibility was a major issue in the trial, evidence as to his credibility was highly relevant. Under the circumstances, we cannot conclude that the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the evidence outweighed the prejudicial impact it might have on the jury. (People v. Ruiz (1998) 62 Cal.App.4th 234, 241-242.)

Moreover, the prejudicial impact of the gang evidence actually admitted was kept to a minimum. As it related to defendant, the gang evidence admitted was limited to evidence of defendants membership in a gang. There was no evidence as to any criminal activities of the gang, that the crime was in any way gang-related, or that defendant or his fellow gang members had actually threatened Campos. Most of the gang references had to do with Camposs reluctance to tell the truth or were merely incidental.

In his opening statement, the prosecutor told the jurors the evidence would show that Campos told the police he was afraid to tell the truth because he knew defendant as a gang member and feared retaliation. Detective Sisneros testified that he had a conversation with defendant up in our 5th floor gang office. We have an interview room up there. Detective Sisneros later testified that defendant told him he loaned his car to Pacheco, who was from his gang, Compton Tiny Gangsters. Defendant told Detective Sisneros that he had been a part of Compton Tiny Gangsters since he was 13 years old. Detective Sisneros testified that he checked on Pacheco and learned he was a Compton Tiny Gangster and had a murder warrant out for his arrest. Detective Sisneros contacted the Compton gang detectives and asked about an address defendant had given him for Pacheco; they said the address was that of Pachecos parents house, and the detectives were still looking for Pacheco.

Campos later testified that he did not originally tell Detective Sisneros that defendant shot him because of fear. Campos testified that he was still afraid. When asked why, he said, Maybe there is going to be resentment. Maybe his family is not going to be happy. I dont know. The prosecutor then asked if he was worried about retaliation and his own safety. He said that he was.

Detective Sisneros later testified as a defense witness that Campos was obviously nervous the first time around, and he was scared even to be talking to us. And then after we finished that interview, I interviewed him again, which is common for what we do. On further questioning, he explained that Campos was scared to talk to him, because he was afraid of going to jail for drug dealing.

On cross examination, the prosecutor asked Detective Sisneros, Is it common for witnesses to be fearful of revealing the whole story in gang investigations? Defense counsel objected, but the trial court overruled the objection, since [h]es a gang detective. Detective Sisneros then answered that it was common.

In his argument, the prosecutor focused on Camposs motive to fabricate a story, which included to shrink away from confronting a man that he believes to be dangerous and to shrink away from telling the police that he is involved in selling marijuana. The prosecutor argued that Campos was afraid. The gang detectives told you this is normal. They have seen it before. They deal with cases that involve gangs. And so they have seen witnesses who are under the impression that theyre dealing with gangsters and they have seen how they respond. And its perfectly natural and normal for there to be fear. For there to be people [who] are not revealing everything that they know.

The focus of the gang evidence was as it related to Camposs credibility. There was no attempt by the prosecution to disparage defendant because he was a gang member or to question defendants credibility based on his gang membership. Moreover, the gang evidence constituted a very small percentage of the evidence introduced at trial and it was very limited in its scope. In light of the overwhelming evidence against defendant, the gang evidence was not unduly prejudicial. It is not reasonably probable he would have been acquitted had the evidence not been introduced. (Evid. Code,  353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.)

Our determination that the evidence properly was admitted resolves the majority of defendants specific claims of error. Defendant contends the trial court erred in denying his motion for new trial, which was based on the erroneous admission of gang evidence. Inasmuch as the evidence properly was admitted, the trial court did not make an error of law justifying a new trial. (Pen. Code,  1181, subd. 5.)

Defendant further contends the erroneous admission of the gang evidence rendered the trial fundamentally unfair, depriving him of due process of law. Since the evidence was relevant and properly admitted, and defendant was not prejudiced by its admission, there was no due process violation. (See People v. Ochoa (1998) 19 Cal. 4th 353, 474.)

Defendant claims on appeal and in his petition for writ of habeas corpus that he received ineffective assistance of counsel due to his counsels failure to object or to claim prosecutorial misconduct on numerous occasions when the prosecutor brought in gang evidence.[2] Because the gang evidence was admissible, defendant was not prejudiced by any failure to object to specific pieces of evidence and therefore cannot establish ineffective assistance of counsel. (People v. Sanchez, supra, 58 Cal.App.4th at p. 1449.)

Defendant also claims prosecutorial misconduct in persuading the court to allow reference to gang evidence in the prosecutors opening statement, in falsely stating what the evidence would show, and in questioning Detective Scavone about defendants gang affiliation. Since the gang evidence was admissible, the references to it did not constitute prosecutorial misconduct (People v.Pitts (1990) 223 Cal.App.3d 606, 734), and defense counsels failure to object did not constitute ineffective assistance of counsel (People v. Sanchez, supra, 58 Cal.App.4th at p. 1449).

Defendant also claims that the prosecutor falsely stated in his opening statement that the evidence would show that Camposs slow reporting of defendants involvement in the shootings was due to his fear of gang retaliation. The real reason was his fear of prosecution for selling marijuana. Campos initially failed to tell the truth to the police based on fear of prosecution for selling marijuana. Once he told the police about the drug deal, however, it is reasonably inferable that Camposs continued reluctance to implicate defendant was based on fear of gang retaliation. There thus was no prosecutorial misconduct. (People v.Pitts, supra, 223 Cal.App.3d at p. 734; People v. Barajas, supra, 145 Cal.App.3d at p. 810.)

Defendant also claims prosecutorial misconduct in the cross-examination of defendants sister. She testified that she and defendant were not close, and sometimes they went days without speaking to one another. The prosecutor then asked her, So those sibling rivalries, those days you would go without speaking, is that why you allowed him to rot in jail for a crime you know he didnt commit ever since April 27th? Defense counsel objected that the question was argumentative, and the trial court struck the rot in jail comment. The prosecutor rephrased the question, asking defendants sister why she did not tell the police that she knew defendant was innocent and she allowed him to stay in jail for a crime she knew he did not commit.

Assuming arguendo that it was misconduct to bring before the jury evidence that defendant was in jail (see People v. Taylor (1982) 31 Cal.3d 488, 494 [compelling defendant to go to trial in jail clothing impairs the fundamental presumption of innocence]), the question is whether defendant was prejudiced thereby (Peoplev.Bolton (1979) 23 Cal.3d 208, 214; Peoplev. Sassounian (1986) 182 Cal.App.3d 361, 390-391).

We conclude there was no prejudicial misconduct, in that it is not reasonably probable defendant would have received a more favorable result had the claimed misconduct not occurred. (Peoplev.Bolton, supra, 23 Cal.3d at p. 214; Peoplev. Sassounian, supra, 182 Cal.App.3d at pp. 390-391.) First, the references to defendant being in jail were made in the context of an attack on his sisters credibility; there was no attempt to use his incarceration to establish guilt. Second, they occurred only once; they were not so frequent or severe as to detract from the jurys fair consideration of the evidence. (People v. Sandoval (1992) 4 Cal.4th 155, 185; accord, People v. Navarette (2003) 30 Cal.4th 458, 506.) They were not, as in the case of a defendant forced to go to trial in jail clothing, a constant reminder to the jury that the defendant is in custody, [which] tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. (People v. Taylor, supra, 31 Cal.3d at p. 494.) Inasmuch as the claimed misconduct was not prejudicial, any failure to object did not constitute ineffective assistance of counsel. (In re Cudjo (1999) 20 Cal.4th 673, 687.)[3]

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] Campos testified that he did not know Pacheco, never sold him any marijuana and never called defendant looking for Pacheco.

[2] Defendant acknowledges that his trial counsel did make a motion in limine prior to trial to exclude the evidence, and the trial court issued a tentative ruling that the evidence was admissible.

[3] Inasmuch as we have rejected the majority of defendants claims of error, we need not address his claim of cumulative error.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.