P. v.
Filed 7/8/13 P. v. Duarte CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO
DUARTE, JR.,
Defendant and Appellant.
G041195
(Super. Ct. No. 07WF0962)
O P I N I O N
Appeal from a judgment of the Superior Court of
County, James A. Stotler, Judge. Affirmed in part and reversed in part.
Lynelle K. Hee, under appointment by the
Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris,
Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons and Julie L. Garland, Assistant Attorneys General, Christine Levingston
Bergman, William M. Wood, and Heather F. Crawford, Deputy Attorneys General,
for Plaintiff and Respondent.
A jury
convicted Roberto Duarte, Jr., of discharging a firearm with gross negligence
(count 1-Pen. Code, § 246.3, subd. (a)),
being a felon in possession of a firearm (count 2-§ 12021, subd. (a)(1)),
street terrorism (count 3-§ 186.22, subd. (a)), and misdemeanor brandishing a
firearm (count 4-§ 417, subd. (a)(2)(A)).
Additionally, the jury found true he committed two of the felonies for
the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)), and he had previously suffered a strike and a
serious felony prior (§§ 667, subds. (a), (d) & (e)(1), 1170.12, subds. (b)
& (c)(1)). The trial court denied Duarte’s new trial motion and
sentenced him to a total term of 15 years, four months in state prison.
On appeal, Duarte argued the trial court
erred in refusing to allow him to introduce evidence the gang expert who
testified at trial had destroyed traffic tickets in order to prevent
prosecution. He also claimed the court
erred by failing to stay the sentence on his street terrorism conviction (count
3), and the court should not have imposed punishment for the street terrorism
conviction and the street terrorism enhancement. After oral argument, we requested the parties
submit supplemental briefing on the effect of People v. Sanchez (2009) 179 Cal.App.4th 1297 [interplay between
§ 186.22, subd. (a) & § 654], in this case.
On June 2, 2010, we filed our
decision. We subsequently granted
rehearing on our own motion. The
following month, the Fourth Appellate District, Division One, filed its
decision in People v. Mesa (2010) 186
Cal.App.4th 773 (Mesa).
In September 2010, Duarte requested
permission to file a supplemental letter
brief on the effect of the then recently decided Third Appellate District’s
opinion in People v. Rodriguez (2010)
188 Cal.App.4th 722, concerning the issue of whether a defendant gang member
who acts alone can be convicted of the substantive offense of
street terrorism. The following month, we denied his
request. The California Supreme Court
granted review in Mesa, supra, 186
Cal.App.4th 773, review granted October 27, 2010, S185688.
On November 16, 2010, we filed our decision
in People v. Duarte (2010) 190
Cal.App.4th 82 (Duarte). In that case, we concluded the trial court
should have stayed the sentence on his street
terrorism conviction, count 3, pursuant to section 654. We rejected Duarte’s other claim, the
evidentiary issue, and affirmed the judgment as modified. We denied Duarte’s petition for rehearing the
following month.
The California Supreme Court granted review
in People v. Rodriguez, supra, 188
Cal.App.4th 722, review granted January 12, 2011, S187680. The California Supreme Court also granted
review in Duarte, supra, 190
Cal.App.4th 82, review granted February 24, 2011, S189174, and deferred action
pending the outcome in Mesa, supra, 186
Cal.App.4th 773, S185688.
In July 2012, the California Supreme Court dismissed
review in Duarte, supra, 190
Cal.App.4th 82, S189174, in light of its decision in People v. Mesa (2012)
54 Cal.4th 191. The remittitur issued in Duarte, supra, 190 Cal.App.4th 82, on July 25, 2012. Five months later, the California Supreme
Court filed its decision in
On May 13, 2013, Duarte filed a motion to
recall the remittitur, reinstate the appeal, and reverse his conviction for
street terrorism. In the motion, Duarte
argues that based on Rodriguez, supra, 55
Cal.4th 1125, he cannot be convicted of violating section 186.22, subdivision
(a), the substantive offense of street terrorism, because he acted alone. We ordered the Attorney General to respond. In its response, the Attorney General
concedes this court should recall the remittitur and reverse Duarte’s
conviction based on the court’s holding in Rodriguez,
supra, 55 Cal.4th 1125.
In the aftermath of Rodriguez, supra, 55 Cal.4th 1125, Duarte stands convicted under an
invalid theory of street terrorism, a point the Attorney General agrees
with. Thus, we recall the remittitur,
vacate our prior opinion, reinstate the appeal, issue this new opinion, and order that a new remittitur issue. We reverse Duarte’s conviction for street
terrorism.
trial court erred in excluding evidence and affirm the judgment in all other
respects.
[recall of remittitur adjunct to writ of habeas corpus and proper to implement
defendant’s right to habeas corpus where defendant convicted under statute that
did not prohibit his conduct at the time]; People
v. Lewis (2006) 139 Cal.App.4th 874, 879 [recalled remittitur and vacated
opinion where basis for affirming conviction was later abrogated by California
Supreme Court].)
FACTS
Brothers Victor Velasquez and Martin
Velasquez
lived on Amberleaf Circle in Huntington Beach.
Victor and Martin were both members of “Amberleaf†(AML) gang. The members of AML considered the group to be
a gang, but law enforcement did not consider the group to be a criminal street
gang because it did not meet the statutory definition. AML’s rival was “South Side Huntington Beachâ€
(SSHB), a criminal street gang.
One early
afternoon, after Victor returned home from school, both brothers went to a park
at the end of Amberleaf Circle. While at
the park, the brothers observed a dark-colored car speed up the street and stop
in front of the park. The driver got out
of the car and someone yelled, “He’s got a gun.†The brothers ran and hid in some nearby
bushes. From the bushes the brothers
heard three gun shots and the shooter yell, “South Side†or “South Side
Huntington Beach.†The man drove away in
the car.
Neither Victor nor Martin immediately
reported the incident to the police. It
was not until two weeks later, after being arrested for a probation violation,
that Martin provided law enforcement with information regarding the
shooting. Martin was unable to pick
Duarte’s picture from a photographic lineup.
Victor also provided information regarding the incident at a later date
when he got into some trouble with the police over graffiti.
Shortly after the incident, police officers
responded to Amberleaf Circle to investigate the shooting. Officers were looking for a midnight blue
four-door car with a license plate that partially read: “5DYZ[]18.â€
Although witnesses were fearful and not initially forthcoming, some told
officers “Big Time,†later identified as Duarte’s gang moniker, was on the
street with a gun. A witness by the name
of Angelita Ramirez declined to speak with officers at the scene, but she
agreed to call Officer Juan Munoz later.
Later that evening, Ramirez called and spoke with Munoz. Ramirez related she had seen her cousin,
Mario Lemus, run in front of her apartment, and she walked out to see why he
was running. As she walked out she saw a
person who she recognized as “Roberto†pointing a black-colored handgun in her
direction. During a later interview,
Ramirez was able to identify the gun as a revolver handgun. Ramirez said that when she realized “Robertoâ€
was pointing the gun at her, she walked back into the house and locked the
door. “Roberto†was further identified
with the last name Duarte, and a physical description. Ramirez indicated Duarte was a male Hispanic,
five feet eight to five feet 11 inches tall, about 23 years of age with a
shaved head and a tattoo of writing on his neck. Ramirez stated she had known Duarte for approximately
five to seven years and had last seen him about a year or a year and a half
ago. She would see him often when he
came to her apartment complex to visit someone in an upstairs apartment. When Munoz showed Ramirez a photographic
lineup including Duarte’s picture, she was unable to identify anyone.
Two days after the shooting, Munoz observed
Duarte seated in a vehicle that was parked next to a midnight blue four-door
car with a license plate of “5DYZ718.â€
Duarte’s head was shaved, and he had “S.S.H.B.†tattooed on the side of
his head. When Munoz contacted Duarte,
Munoz asked him if he had been at the Amberleaf location at the time of the
shooting, and if the midnight blue car belonged to him. Initially, Duarte denied being present at the
Amberleaf location on the day of the shooting, but admitted the car belonged to
him. Later, Duarte disclosed he had been
there looking for a group of AML members who had been bothering his younger
brother. Duarte explained he had driven
the midnight blue four-door Impala to Amberleaf but denied being involved in
the shooting. Duarte advised Munoz that
at the time the shooting took place he was filling out some job applications.
Ramirez testified at trial but said the only
reason she was testifying was because she had been subpoenaed. She recounted that she and others in the
neighborhood would not speak with Munoz because people in her neighborhood do
not like to talk to police. She
testified she was afraid to talk to Munoz and take his business card. Ramirez testified she had seen a bald man in
a white T-shirt with writing on his neck holding a black object in his
hand. She claimed she could not tell
what the black object was, and denied telling Munoz it was a gun. As to the specifics of the description she
gave Munoz, Ramirez at times claimed to not remember. Alternatively, she altered the description
she provided Munoz rendering it less detailed.
Ramirez said she did not recall if she had told Munoz the man she had
seen was Duarte, whom she had known for six or seven years. Contrary to what she told Munoz about seeing
Duarte on numerous occasions prior to the incident, Ramirez claimed to have
only seen Duarte one time. Ramirez also
claimed to recall identifying someone in the lineup, who was not Duarte, as
looking familiar to her.
Munoz testified he knew Duarte from previous
contacts but had never arrested him. He
described Duarte as having been heavier in the past but that the shaved head
and tattoo on the side of his head were consistent with Munoz’s past
observations of Duarte. Munoz was aware
of only two other SSHB members with similar tattoos and both were in custody at
the time of the incident. Munoz also
testified as to statements Ramirez made to him the night of the incident that
were inconsistent with her testimony at trial.
Huntington Beach Detective Arthur Preece
testified as a gang expert. He testified
that gang tattoos demonstrate a member’s pride in the gang and a member’s
permanent allegiance to the gang. He
opined committing crimes, especially with a gun, garners respect for the
offender or his gang and serves to intimidate potential witnesses from
cooperating with law enforcement.
Throughout his 22-year career with the Huntington Beach Police
Department, Preece had interacted with members of the SSHB gang. He testified the gang had been in existence
for more than 30 years and was an ongoing organization with about 70
members. He described SSHB’s primary
activities, pattern of criminal activity, and common names and symbols. He further testified as to the commission of
two predicate crimes by the gang to establish SSHB was a criminal street gang
as defined in section 186.22, subdivision (f).
With respect to Duarte’s involvement in the
gang, Preece described Duarte’s continued association with known SSHB members
dating back to 2001, and opined Duarte was an active member of SSHB on the date
of the incident. Preece testified
Duarte’s moniker was “Big Time,†and he had a number of SSHB gang-related
tattoos, including “S.S.H.B.†on the side of his head. Based on a hypothetical mirroring the facts
of the incident, Preece opined the crime was committed for the benefit of SSHB.
Prior to Preece testifying, Duarte sought
permission to impeach Preece with information he had destroyed traffic tickets
to prevent prosecution. Duarte’s defense
counsel advised the court he had received information from the prosecutor in an
unrelated case that on approximately four or five occasions over a seven-to-eight-year
period, Preece kept routine traffic tickets from being put into the
system. Counsel cited an affidavit
Preece had prepared for an unrelated case.
In it, Preece declared there were no copies of the tickets he had
destroyed, or any reports relating to the destruction of the tickets. Preece also stated he had no recollection of
conversations with other officers regarding his actions with regard to the
tickets. Duarte asserted he did not know
exactly what keeping routine traffic tickets from being put into the system
entailed. He questioned whether this
meant Preece directed another officer to pull a ticket before it was
filed. Or did Preece go to the file
room, or wherever citations are filed at Huntington Beach Police Department,
and pull the citation himself? He then
hypothesized as to what Preece may have informed other Huntington Beach police
officers. He stated this information
“opens a Pandora plethora of questions.â€
Duarte’s defense counsel argued preventing
the citations from getting into the system was a “criminal violation.†He advised the court he intended to “take
this information . . . to the United States Attorney’s Office, at a minimum[,
and] refer it to the Huntington Beach Internal Affairs Department[,]
[b]ecause[] there [were] questions . . . of concealment of evidence,
destruction of evidence, conspiracy, obstruction of justice, and probably . . .
a number of other federal statutes [the conduct] could potentially . . .
implicate.†Duarte’s counsel then
advised the court it was “incumbent that the court should appoint counsel and
have [Preece] properly advised.â€
The prosecutor did not dispute Preece had
destroyed tickets. But the prosecutor
explained members of a family in a neighborhood where Preece worked were
witnesses to a gang-related crime. The father in that family had received
citations for driving on a suspended license while driving his disabled
daughter to the doctor. Preece told her
he destroyed the tickets to help a family involved in the unrelated case. The prosecutor insisted Preece did not lie at
any time about what he had done when asked about the tickets. If anything, the detective may have failed to
follow the procedures set out by his department for how to handle this type of
situation. The prosecutor argued if
evidence regarding a possible violation of a department policy or procedure
were admitted, it would consume a huge amount of time.
Duarte’s counsel insisted this information
was proper impeachment because the conduct was relevant on issues of character
and honesty. The prosecutor indicated
that although counsel repeatedly asserted Preece’s conduct amounted to a
violation of law, she was unclear on what law it was that Preece allegedly
violated. The prosecutor again argued
this conduct amounted to a failure to follow department procedure and was not
relevant to prove a witness’s character for truthfulness. There was no evidence Preece ever lied about
what he had done in connection with the tickets, in fact he was quite candid in
his statements. The prosecutor objected
to evidence regarding the tickets being admitted for the purpose of
impeachment.
The trial court found Duarte’s offer of proof
vague and based, in significant part, on speculation. The court stated the information appeared to
be irrelevant, and to the extent it might be relevant, it found the evidence to
be remote and minimal at best. There was
a danger the evidence would confuse and mislead the jury. Admission of the evidence would constitute an
undue consumption of time on a collateral issue. The court noted the evidence was based on
some sort of misconduct and not a conviction.
Lastly, the court found the probative value of the evidence was outweighed
by its prejudicial value. After making
these findings, the court excluded the evidence under
Evidence Code section 352.
Duarte
called two alibi witnesses, Tiffany Pinero and Barbara Koch. Pinero, Duarte’s girlfriend, was working at
Quality Drug Long-Term Care in Newport Beach March 2, 2007, the day of the
incident. Pinero recalled having lunch
with Duarte at her workplace on March 2 and Duarte leaving her workplace at
approximately
1:45 p.m. to go to a job
interview. Koch, the owner of A-Ok
Rentals, confirmed she interviewed Duarte for a job on March 2. Although she could not recall the exact time
of the interview, she believed it took place between 12:00 p.m. and 4:00 p.m.
Duarte also called an investigator with the
Orange County Alternate Public Defender’s Office, Rolando Chavez, regarding an
interview he had with Ernest Williams, Duarte’s parole agent. Williams told Chavez that he had spoken with
Munoz the afternoon of the incident and Munoz told him that Duarte had been
seen with a gun at a gang member’s funeral, but the Amberleaf incident was not
discussed.
The prosecutor called Munoz to rebut issues
raised by the defense evidence. Munoz
testified he had given information to Williams about the gang member’s funeral,
but it was a separate incident not related to the Amberleaf incident. He believed Williams had confused the two
incidents. Munoz testified when he
arrested Duarte, Duarte never said he was with Pinero on March 2. Munoz also testified when he asked Duarte if
he went anyplace other than A-Ok Rentals the afternoon of March 2, Duarte said
he had but would not disclose where he had gone. The prosecutor also called a police officer
witness who testified as to the driving times and distances. The officer calculated the driving time and
distance between Pinero’s workplace and Amberleaf to be about 11 to 12 minutes
and about eight miles. The officer
calculated the driving time between A-Ok Rentals and Amberleaf at 3:45 p.m. to
be about five minutes but believed traffic was usually heavier at 3:45 p.m.
than it would be at 1:45 p.m.
Prior to trial, the trial court granted
Duarte’s motion to bifurcate the trial on the strike and serious felony prior
allegations. The jury convicted Duarte
on all counts and found all allegations to be true. Duarte waived his right to jury trial on the
strike and serious felony allegations.
The court found both the strike and the prior allegations to be true.
The trial court sentenced Duarte to prison
for 15 years and four months as follows:
count 1-four years and a consecutive five-year term on the gang
enhancement; count 3-16 months; and the serious felony allegation-five
years. The court imposed and stayed
(§ 654) the following sentences:
count 2-four years; and count 4-365 days in jail.
DISCUSSION
Duarte claims the trial court prejudicially erred
by refusing to allow him to introduce evidence Preece destroyed traffic
tickets. Duarte claims the exclusion of
this evidence violated his federal and state constitutional rights to present a
defense, to confront and cross-examine witnesses, and to due process and a fair
trial. Accordingly, Duarte asserts the
more restrictive Chapman
standard of review applies. The Attorney
General argues any error in excluding the evidence was harmless but does not
address the applicable standard of review.
Because we conclude there was no error, we need not weigh in on the
applicable standard of review.
Evidence of past misdemeanor conduct involving
moral turpitude may be
introduced to impeach a witness’s character because it is reasonable to infer a
person who has committed a crime involving
Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) In Wheeler,
our Supreme Court cautioned that the
admissibility of any past misconduct for impeachment is limited at the outset
by the relevance requirement of moral turpitude. In order to be admissible for
turpitude and have some logical
bearing upon the veracity of a witness. (
the alleged misconduct, the
destruction of traffic tickets, was a crime involving moral turpitude and
relevant to the jury’s determination of Preece’s veracity.
We
agree with the trial court that although Duarte ran through a laundry list of
conceivable crimes, he was unable to articulate in any detail what specific
crime Preece had committed. The record
demonstrates Preece, an experienced police officer, admitted that on approximately four or five
occasions over a seven-to-eight-year period he prevented the prosecution of routine traffic tickets. Duarte essentially argued based on this
admission he believed it was probable that if he was allowed to delve into the
circumstances surrounding the destruction of the tickets, criminal conduct
would be revealed.
The
prosecutor disputed Preece’s actions amounted to criminal conduct. She argued that at most, Preece’s admission
might show he did not follow department policy in the way he handled the
situation. Misdemeanor misconduct
involving moral turpitude is admissible to impeach a witness because it
“suggest[s] a willingness to lie.†(Wheeler,
supra, 4 Cal.4th at p. 295.) Here,
the trial court found Duarte’s offer of proof as to the import of Preece’s
conduct was vague and based in significant part on speculation. We agree.
Whether Preece’s actions amounted to conduct suggesting a willingness to
lie under oath is unclear without further facts. The trial court properly excluded the
evidence.
After
finding the information not to be proper impeachment, the trial court reasoned
that even if the information was admissible, the probative value of the
evidence was outweighed by its prejudicial value. The court stated the evidence would consume
an undue amount of time and had the potential of confusing the jury.
A trial court enjoys broad discretion
under Evidence Code section 352 in determining whether
the probative value of particular evidence is outweighed by concerns of undue
prejudice and confusion or consumption of time. The exercise of this discretion will not be
disturbed on appeal except on a showing the court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice. (
30, 42.)
We
find no abuse of discretion in the trial court’s determination the probative
value of this evidence would have been outweighed by its prejudicial
value. Again, we agree with the trial
court that internal police policies and procedures are not matters of common
knowledge so the jury would need to be educated on these topics. This would consume a considerable amount of
time on a collateral issue. Also,
without a sophisticated understanding of
the permissible actions law enforcement may take to prevent the prosecution of
traffic tickets, it is probable the jury would be more confused than
enlightened by Preece’s actions. We
conclude the court properly excluded this evidence under Evidence Code section
352.
Relying
on Rodriguez, supra, 55 Cal.4th 1125, Duarte contends he could not be convicted of violating
section 186.22, subdivision (a), because he acted alone. The Attorney General agrees and so do
we.
The
street terrorism substantive offense, section 186.22, subdivision (a),
states: “Any person who actively
participates in any criminal street gang with knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and who willfully
promotes, furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished . . . in the state prison for 16 months, or two or
three years.†The offense has three
elements: (1) active participation in a criminal street gang; (2)
knowledge the gang’s members have engaged in a pattern of criminal gang
activity; and (3) willfully promoting, furthering, or assisting in any
felonious criminal conduct by members of the gang. (People
v. Albillar (2010) 51 Cal.4th 47, 56.)
In Rodriguez, supra, 55 Cal.4th at page 1129, the issue was whether the third element of the crime
described in section 186.22, subdivision (a)—willfully promoting, furthering,
or assisting in any felonious criminal conduct by members of the defendant’s
gang—can be satisfied by felonious criminal
conduct committed by the defendant acting alone. (Rodriguez, supra, 55
Cal.4th at p. 1129.) The Rodriguez
court reasoned “[t]he plain meaning of section 186.22[, subdivision] (a)
requires that felonious criminal conduct be committed by at least two gang
members, one of whom can include the defendant if he is a gang member. [Citation.]â€
(Rodriguez,
supra, 55 Cal.4th at
p. 1132.) Because defendant acted alone in
violate section 186.22, subdivision (a).
(Rodriguez,
supra, 55 Cal.4th at p. 1139.)
As
the Attorney General concedes, Rodriguez
controls the outcome of the issue here.
Because Duarte acted alone in committing his crimes—the only crimes the
prosecution relied on to support the third element of the gang participation
count—there is insufficient evidence to support the conviction on that
count. Accordingly, we reverse Duarte’s
conviction on count 3.
654
Duarte
contends the trial court erred by failing to stay the sentence on count 3,
street terrorism, pursuant to section 654 because he had the same intent and
objective in count 1, discharging a firearm with gross negligence. He also argues section 654 bars punishment
for both the substantive street terrorism offense and the street terrorism
enhancement. Because we now conclude
Duarte cannot stand convicted of violating section 186.22, subdivision (a), we
need not address his claims regarding section 654.
DISPOSITION
Duarte’s motion to recall the remittitur is granted. We recall the remittitur, vacate our prior
opinion, reinstate the appeal, issue this new opinion, and order that a new
remittitur issue. We reverse Duarte’s
conviction for street terrorism (count 3), and strike the 16-month term on that
count. We affirm the judgment in all
other respects. The clerk of the
superior court is directed to prepare an amended abstract of judgment consistent
with this opinion and forward it to the Department
of Corrections and Rehabilitation, Division of Adult Operations.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM, J.
ARONSON, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code, unless otherwise
indicated.
name="_ftn2" title="">[2] We acknowledge Duarte did not raise this issue on
appeal. However, after we granted
rehearing, we denied his request to file a supplemental letter brief addressing
the effect People v. Rodriguez, supra, 188
Cal.App.4th 722, on his appeal.
