P. v. Figueroa

Filed 4/29/08 P. v. Figueroa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Meredith C. Taylor, Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

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Rafael H. Figueroa was convicted of two counts of attempted murder, two counts of assault with a firearm, and one count of shooting at an occupied motor vehicle, with true findings on allegations that he personally and intentionally used and discharged a firearm and committed the crimes for the benefit of a criminal street gang. (Pen. Code, 664, 187, subd. (a), 245, subd. (a)(2), 246, 12022.53, subds. (b)-(c), 12022.5, subd. (a), 186.22, subd. (b)(1)(C).)[1] He was sentenced to state prison for a term of 35 years to life. Figueroa appeals, contending (I) the trial court should have granted his request for the appointment of an eyewitness identification expert, and (II) there was insufficient evidence to support the criminal street gang allegations. We reject his claims of error and affirm the judgment.

FACTS

At about 7:00 a.m. on March 29, 2006, Jamon Pilcher was driving to school, accompanied by Kevin Toms. When Pilcher stopped at a red light a block away from the school, he and Toms saw Figueroa (who was wearing a hooded sweatshirt with NY on the front, and who had NY tattooed on his neck) standing on the sidewalk about 30 feet away. The boys recognized Figueroa from an encounter about two weeks earlier -- when Pilcher and Toms were having breakfast at a McDonalds and saw Figueroa staring (mad dogging) at Toms (and Toms had stared back).

When Figueroa saw the boys in the car, he made gang hand gestures and appeared to be saying something. Toms, angry because Figueroa was trying to bang on him, lowered his window and asked, Whats happening? Pilcher told Toms to forget about it. Just as Toms closed the window, Figueroa pulled a gun from his waistband and pointed it at the car. Pilcher and Toms both heard three or four shots and felt the shots hit their car (neither boy was hit). They drove to school and immediately called 911.

Toms described Figueroa to the police as about five feet, six inches tall, 130 pounds, and said he was 18 or 19 years old. Both boys described Figueroas neck tattoo and told the police about the earlier encounter. Later that day, Pilcher and Toms separately identified Figueroa from a photo array. Figueroa was arrested on April 6, at which time he was wearing a baseball jersey with an NY emblem and carrying a list of some Pacoima Van Nuys Boys gang monikers and their telephone numbers. He was charged with the crimes noted at the outset.

At trial, the People presented evidence of the facts summarized above. In addition, a gang expert testified about the Pacoima Van Nuys Boys gang, which has about 150 members and uses several symbols -- NY (derived from the New York Yankees), PVNB, VNB, VN, and 12700 (the address of the gangs headquarters). The gangs primary activities are grand theft auto, vandalism, criminal threats, murder, assaults with deadly weapons, and robbery, and the expert described several convictions of other gang members (for robbery, assault with a deadly weapon, and carjacking). Gang members work for the gang by stealing cars, getting in fights with rival gang members, and making derogatory comments about rival gang members -- all so rival gangs and the community would see that Van Nuys Boys is someone to reckon with. Respect is paramount in gang culture, and when a rival gang member enters the Van Nuys Boys territory and fails to respond to a Van Nuys Boys question, that is viewed as disrespectful.

Figueroa has 12700 tattooed on his chest and NY on his neck to show his dedication to his gang, and the expert opined that Figueroa is a gang member, basing his opinion on the tattoos as well as Figueroas clothing, past associates, and his open admittance to [the expert] that he is, indeed, a member of the Van Nuys gang.

In response to a hypothetical question tracking the facts of this case, the expert testified that this type of shooting is for the benefit of and in association with the Van Nuys Boys gang -- because the shooting (in broad daylight on a main thoroughfare and directly in front of the 12700 headquarters) was a bold statement to the community, and because other gang members would take note. The shooting showed that it doesnt matter whether youre a citizen or the police, they can do whatever they like . . . it projects intimidation and violence in the community.

The jury rejected Figueroas defense (misidentification) and convicted him as charged.

DISCUSSION

I.

Figueroa contends the trial court should have appointed an eyewitness identification expert and permitted him to testify at trial. We disagree.

A.

The prosecutor moved in limine to exclude the testimony of Figueroas expert asking the trial court to exclude expert eyewitness identification testimony in an exercise of its discretion. According to the prosecutor, the eyewitness testimony was strong and unequivocal, the crime occurred in a well-lit area, and additional evidence corroborated the eyewitnesss identification of Figueroa. Figueroa disputed these claims in his opposition and (at the hearing on this issue held after the victims had testified) argued that an experts testimony was necessary because there was cross-racial identification (Figueroa is Hispanic, the victims African-American) and because the lineup was highly suggestive (because Figueroa was the only person with a neck tattoo).

The trial court found that an experts testimony would not be helpful to the jury and that the concerns expressed by Figueroa could be addressed by the jury instructions and in argument.

B.

Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995), and this is precisely the type of case -- one in which the eyewitness testimony is substantially corroborated by evidence giving it independent reliability -- in which it is within the trial courts discretion to exclude such testimony (People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914).

Pilcher and Tomss identifications were unequivocal and made independent of each other, and each corroborated the other. Before they saw the photo array, both victims told the police they recognized Figueroa from an earlier encounter, and both remembered Figueroas face and his distinctive tattoo. The crimes occurred in broad daylight. The photographic identifications were made within hours of the crime, and both victims were 100 percent certain that Figueroa was the shooter. No alibi evidence was presented to the jury. Both victims were extensively cross-examined, the jury was fully instructed about the problems with eyewitness identifications, and defense counsel argued the issue at length. In short, there is no basis for Figueroas contention that the trial court abused its discretion.

II.

Figueroa contends the evidence at trial was insufficient to support the gang enhancements -- more specifically, that there is no evidence that the crimes were committed with the specific intent to promote or assist the gang. ( 186.22, subd. (b)(1).) We disagree.

Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1102, 1103, Figueroa contends section 186.22 requires a showing that he specifically intended to promote the gangs activities beyond the current offenses. Because we are neither bound nor persuaded by Garcia, we choose not to follow it (People v. Burnett (2003) 110 Cal.App.4th 868, 882), and instead follow established California law holding that the statute means what it says -- that a specific intent to further any criminal conduct by gang members is sufficient. (People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Hill (2006) 142 Cal.App.4th 770, 774 [Garcia . . . misinterprets California law].)

The evidence supports the required specific intent finding. ( 186.22, subd. (b)(1).) There had been a prior gang-related exchange between Figueroa and the victims (mad-dogging). With regard to the charged crimes, Figueroa stood directly in front of his gangs headquarters in broad daylight, wearing gang symbols, and throwing gang signs at Pilcher and Toms. When Toms responded angrily to the banging, Figueroa started shooting -- seeking the notoriety he would obtain from such a brazen act only a block away from a school. No more was required. (People v. Farnam (2002) 28 Cal.4th 107, 142-143; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

I concur:

JACKSON, J.*

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

MALLANO, Acting P. J., Dissenting.

I believe the trial court erred in refusing Figueroas request to appoint an eyewitness identification expert.

Figueroa based his request on a cross-racial identification; a claim of a lack of correlation between degrees of confidence and accuracy of identification; exposure to an allegedly highly suggestive line-up (Figueroas photo was the only one with a tattoo on the neck); effects of memory of the witnesses exposure to subsequent information or suggestion; and effects on recall of bias or cues in identification procedures. The trial court denied the request, stating without elaboration, I dont believe it would be helpful to have an eyewitness expert.

In People v. McDonald (1984) 37 Cal.3d 351, 377 (overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914), the Supreme Court stated: [T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial courts discretion; . . . we do not intend to open the gates to a flood of expert evidence on the subject. [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial courts discretion in this matter. [Fn. omitted.] Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecutions case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.

Here, the eyewitness identification of Figueroa was a key element of the prosecutions case and was not substantially corroborated. And he offered qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known or understood by the jury. I, therefore, conclude that under McDonald it was error to exclude the expert testimony.

The Attorney Generals reliance on People v. Lewis and Oliver (2006) 39 Cal.4th 970 and People v. Sanders (1995) 11 Cal.4th 475 is misplaced. In Lewis and Oliver, expert testimony was unnecessary because no witness identified the masked perpetrators and the prosecution relied on circumstantial evidence showing the defendants motive, intent, and opportunity to commit the crime, and their consciousness of guilt afterward. In Sanders, although eyewitness testimony was a key element of the prosecutions case, it was corroborated by other independent evidence of the defendants involvement in the crime and the conspiracy leading to it, including the defendants soliciting help for, and planning, the crime. Here no substantial corroboration is present.

The Attorney General also relies on the eyewitnesses certainty of their identifications as a justification for excluding the expert. Yet this is one of the specific psychological factors that Figueroa sought to challenge with the expert. If all it takes to deny an expert is eyewitnesses saying they are sure of their identifications, then such deference would be an abdication to witnesses to determine their own accuracy and fly in the teeth of McDonald.

Figueroa was prejudiced by the trial courts ruling, as he was deprived of evidence supporting his only defense, that of mistaken identity.

I would reverse.

MALLANO, Acting P. J.

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[1] All section references are to the Penal Code.