P. v. Garcia
Filed 2/27/12 P. v. Garcia CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
EZEQUIEL GARCIA,
Defendant and Appellant.
B221396
(Los Angeles
County
Super. Ct.
No. NA 048955)
APPEAL
from a judgment of the Superior Court
of
County. John David
Lord, Judge. Reversed and remanded.
Deborah
L. Hawkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
Defendant Ezequiel Garcia timely appealed from his
conviction for first degree murder. The jury found true firearm and gang
allegations. The court sentenced
defendant to a total of 50 years to life.
Among other issues, defendant contends the court erred in denying his
motion to bifurcate the gang enhancement and the evidence was insufficient to
support the gang enhancement and the
murder charge. We reverse and remand.
I. Prosecution Case
On Saturday
night, June 2, 2001, Susanna
Garcia and her boyfriend Ricardo Robledo went to a party. When the party was over, Susanna left with
Robledo, who was over six feet tall and a big man. Robledo walked out in front of Susanna and
appeared to be upset. Robledo was
throwing his hands in the air, and it appeared like trouble to Susanna. Susanna pushed Robledo toward her car, and he
got into the front seat. Susanna waited
by her car. Bottles and cans were being
thrown at her car. Susanna thought
someone wanted to fight Robledo. Robledo
got out of the car. Susanna tried to
hold him back, but he threw her down and told her to stay down and “get out of
. . . his business.” After Robledo
walked off, Susanna heard a gunshot.
Susanna saw Robledo on the ground surrounded by young adults from the
party. Susanna did not see who shot
Robledo.
Rene
Manzano
around the neighborhood. The night of
the party, Rene saw appellant pull out a shotgun and shoot Robledo. Robledo did not do anything before he was
shot. Rene, Salvador Diaz and Manuel
Castillo took Robledo to the hospital.
On June 6, Rene identified appellant in a six-pack photo lineup as the
shooter. Robledo died from a gunshot wound to the chest.
Detective
Paula Chavez, who gave Rene the six-pack photo lineup, made extensive efforts
to locate appellant afterwards, but was unsuccessful. Appellant was arrested at LAX on September 28, 2007.
Appellant
lived with his mother until June 3,
2001, when he left her house and never returned. Appellant’s mother did not see or hear from
her son again until May 20, 2008. Detective Ana Pinell spoke with appellant’s
mother on February 9, 2006. Appellant’s mother told Pinell that she had
not seen appellant since the day of the murder when he told her he had to leave
because he had killed somebody.
name="_ftnref2" title="">[2]
Officer
Mark Maldonado testified as an expert on the Eastside Wilmas Street Gang. The party took place in a neutral zone. Appellant had admitted to Maldonado that he
was a member of the Eastside Wilmas gang.
In Maldonado’s opinion, appellant was an Eastside Wilmas gang member and
had been since the age of 14. Based on a
hypothetical set of facts, Maldonado opined the shooting in this case was for
the benefit of the Eastside Wilmas gang.
Maldonado explained that after Robledo got out of the car, appellant
could not back down from the challenge without losing respect. The murder would benefit his gang’s
reputation for violence and promote its notoriety.
II. Defense Case
Manuel
Castillo went to the party with Salvado Diaz.
Castillo was in the backyard with Diaz when he heard a sound that he
thought might be fireworks. When
Castillo went to the front of the house, he saw a crowd and a body in the
street. Castillo could not remember if
Rene was in the backyard with them when they heard the sound.
Rene’s
older brother Ramiro also attended the party.
Ramiro saw gang members at the party but did not recall whether they
were Eastside Wilmas; people went to the microphone at times and made comments
about Eastside Wilmas. Ramiro, Rene,
Diaz and Castillo were in the backyard of the house when they heard the
shot. The men then went to the front
yard where they found Robledo lying in the street. Ramiro said Rene’s reputation for telling the
truth was “bad.”
Diaz
the end of the party. After the
announcement the party was over, Diaz heard a loud noise, and he and everyone
around him ducked. Ramiro was right next
to Diaz, and Rene was just ahead of them.
Diaz said that when they heard the gunshot, the three men were in the
backyard, but not behind the house.
The parties
stipulated that Castillo, Diaz and Rene were interviewed by Officer Fuentes at
the hospital the morning after the shooting.
All three told Fuentes that they were in the backyard when they heard
the gunshot and came around to the front to find Robledo in the middle of the
street with a gunshot wound to the chest.
Detective Alonzo Canada
also interviewed Rene at the hospital on the night of the shooting. Rene told Canada that he was in the backyard
of the house when he heard something that sounded liked an M-80 and he panicked
and ducked down.
Detective
Chavez spoke with a Genaro Felix on June 3, 2001. Felix was five feet nine inches tall and
weighed about 160 pounds. As a result of
that interview, Juan Carlos Almanza was arrested for the murder of
Robledo. At trial, Genaro Felix denied
being at the party on June 2 and further denied identifying Almanza as the
shooter on June 3. In February 200l,
Felix had been the victim of identity theft.
In 2001, Felix was five feet four inches tall and weighed 113
pounds. Almanza, who was not a gang
member, was released after being in custody for 12 days.
Appellant’s
fingerprints did not match those collected at the scene. No shell casings or firearms were collected
at the scene.
III. Rebuttal
Almanza was
with his parents at a family party the entire evening on June 2. A search of his residence yielded no firearms
or gang paraphernalia.
DISCUSSION
Appellant contends the court should have removed Juror
No. 3257 for cause or granted him an additional peremptory challenge to remove
that juror, the court should have recused itself on its own motion based on its
alleged bias against street gangs, the preliminary hearing testimony of Rene
Manzano was inadmissible because the state failed to show due diligence in
locating him, admission of evidence suggesting that Ricardo Robledo was not a
gang member was prejudicial, the court erred when it denied his motion to
bifurcate the gang enhancement, the evidence was insufficient to prove the gang
allegation and the murder charge, and he was entitled to one additional day of
custody credit.
title="">[4] Appellant requests that his convictions be
set aside based on insufficient evidence or, in the alternative, he be granted
a new trial. As we conclude the
admission of the gang evidence was prejudicial, we need not address all these
issues.
I. Motion to Bifurcate
Appellant
contends the court erred when it denied his motion to bifurcate the gang
enhancement, which violated his right to
a fair trial, because the gang evidence was irrelevant to the murder charge
and threatened to sway the jury to convict him regardless of his actual
guilt. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [The court
recognized “some of the gang evidence, even as it relates to the defendant, may
be so extraordinarly prejudicial, and of so little relevance to guilt, that it
threatens to sway the jury to convict regardless of the defendant’s actual
guilt.”].)
A. Background
The
information charged the murder of Robledo was committed for the benefit of, at
the direction of, or in association with a criminal street gang. In a pretrial motion, appellant argued
failing to bifurcate would be highly prejudicial to him as the jury would be
inclined to convict him based on evidence he was a gang member and the only
evidence supporting motive was his gang membership. The prosecutor opposed the motion for several
reasons, including the fact Rene had identified appellant by his gang moniker
and the expert’s testimony was central to the question of motive. The court denied the motion, but gave a
limiting instruction (CALCRIM No. 1403).
The court also denied appellant’s motion for a new trial, which included
claims the court erred in not bifurcating the gang enhancement and in allowing
the expert to testify on gang issues.
B. Gang Evidence
A court’s
ruling denying a motion for bifurcation is reviewed for abuse of
discretion. (People v. Hernandez, supra,
33 Cal.4th at p. 1048.) The proponent of
bifurcation must “‘clearly establish that there is a substantial danger of
prejudice requiring that the charges be separately tried.” (Id.
at p. 1051.) After noting that gang
evidence is often relevant to the charged offense to help prove motive, among
other things, the court reasoned: “To
the extent the evidence supporting the gang enhancement would be admissible at
a trial of guilt, any inference of prejudice would be dispelled and bifurcation
would not be necessary.” (
Citing
Cal.App.4th 1148, 1167-1168, respondent contends the gang evidence was relevant
to motive as gang enmity, or appellant’s perception of it, was the sole motive
for the senseless killing and the expert helped the jury understand the
prosecutor’s theory. In addition, respondent
asserts appellant has not demonstrated such gross unfairness so as to show he
was deprived of due process. In
defendants were all members of the same gang, frequently associated with each
other, and working together had previously shot and killed a “tweaker” who had
disrespected their gang, and the motive for another murder was to benefit the
gang by taxing the victim for selling drugs in the gang’s territory. (Id.
at p. 1178.)
“Although
evidence of a defendant’s gang membership creates a risk the jury will
improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged -- and thus should be carefully scrutinized by
trial courts -- such evidence is admissible when relevant to prove identity or
motive, if its probative value is not substantially outweighed by its
prejudicial effect.” (
1194.) The California Supreme Court has
“condemned the introduction of such evidence if it is only tangentially
relevant to the charged offenses.”
(Italics deleted.) (
Cal.App.4th 214, 223.)
However, at
the time appellant made his motion to bifurcate, a gang enhancement was
charged. The court denied the motion on
the basis of the People’s representation the case involved motive. Previously, at the time the court heard
appellant’s Penal Code section 995 motion, it indicated it needed to hear the
facts. Thus, we cannot conclude the court
abused its discretion when it denied the motion. Rather the issue before us is whether the
admission of the gang evidence was prejudicial.
II. Substantial Evidence
Appellant
contends the evidence was insufficient to prove the gang enhancement or the
murder charge. Citing
asserts the expert’s opinion here that there was a gang motive for the killing
was irrelevant, inadmissible and highly prejudicial as the record was devoid of
any evidence (other than appellant’s gang membership) connecting the crime to a
gang motive. In Albarran, the trial court granted the defendant’s new trial motion
on the grounds the gang evidence was insufficient to support the gang
allegations, but denied the motion as to the underlying charges. (People
v. Albarran, supra, 149
Cal.App.4th at pp. 225-226.) This court
concluded that the trial court should also have granted a new trial on the
underlying charges. (
In
was gang related because it occurred in a gang area, at a party where gang
members often committed crimes, and more than one shooter was involved. (People
v. Albarran, supra, 149
Cal.App.4th at p. 221.) In addition,
although the gang expert testified the shooting was for the benefit of the gang
as it was done to gain respect, the expert admitted he had no knowledge of any
direct evidence such as gang signs, announcements or graffiti that linked the
defendant or his gang to the charged offense.
(Id. at pp. 219-220.) This court concluded there was no evidence
the shooting was done with the intent to gain respect, noting there was no
evidence the gang evidence had any bearing on the underlying charges even if it
had some relevance to motive as the motive was not apparent from the
circumstances and the only evidence to support the motive was the defendant’s
gang affiliation. (Id. at p. 227; accord People
v. Ochoa (2009) 179 Cal.App.4th 650, 661-662 [nothing in the circumstances
of the charged carjackings supported the gang expert’s opinion the crimes were
gang related]; People v. Ramon (2009)
175 Cal.App.4th 843, 851 [there were no facts from which the expert could
discern whether the defendants were acting on their own or on behalf of their
gang]; In re Frank S. (2006) 141
Cal.App.4th 1192, 1199 [expert’s opinion about why a minor defendant possessed
a knife not supported by any gang evidence].)
The only
evidence to support a gang motive in the instant case was appellant’s gang
membership. Although some gang members
were at the party, the location was in neutral territory. There was no testimony that prior to the
shooting, appellant announced his presence or purpose, that there were any gang
threats, that the ubiquitous “where are you from” challenge was issued, or that
appellant’s gang often committed crimes at parties. There was no evidence any gang member had
bragged about the murder afterwards.
There was no indication that the killing was in retaliation for a prior
killing of a member of appellant’s gang or that gang graffiti was present in
the area. The only basis for the
expert’s opinion that there was a gang motive was his statement that appellant
could not back down once Robledo challenged him. However, there was no evidence that Robledo
challenged appellant or was a gang member; the shooting appears to have been
instantaneous with Robledo’s getting out of the car. Without some factual evidence to support the
expert’s opinion, it would come perilously close to holding all crimes
committed by a gang member are for the benefit of the gang, which is not the
law.
Only after
the trial was it possible to say for certain the expert’s opinion was not
supported by substantial evidence. (See
370; People v. Holt (1997) 15 Cal.4th
619, 667.) Thus, we reverse the
conviction on the gang enhancement. (See
People v. Ochoa, supra, 179 Cal.App.4th at p. 665.)
Appellant’s
contention that his murder conviction is not supported by substantial evidence
is based on arguments about the credibility of the evidence, i.e., there was
evidence Rene was not in a position to observe the shooting, it was not likely
appellant’s mother would “rat” him out to the police, etc.; his argument is
unpersuasive as credibility is an issue for the trier of fact. (See People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Rene identified appellant as the shooter, appellant told his mother he
had to leave because he had killed someone and he fled the state for several
years.
“‘[T]he
admission of evidence, even if erroneous under state law, results in a due
process violation only if it makes the trial fundamentally unfair.’” (Italics deleted.) (People
v. Albarran, supra, 149
Cal.App.4th at p. 229.) “To prove a
deprivation of federal due process rights, [appellant] must satisfy a high
constitutional standard to show that the erroneous admission of evidence
resulted in an unfair trial. ‘Only if
there are no permissible inferences the jury may draw from the evidence can its
admission violate due process. Even then,
the evidence must “be of such quality as necessarily prevents a fair trial.” Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.’ ‘The dispositive issue is . .
. whether the trial court committed an error which rendered the trial “so
‘arbitrary and fundamentally unfair’ that it violated federal due
process.”’” (Citations omitted.) (Id.
at pp. 229-230.)
Here, the
evidence was insufficient to show that the crime was gang-related rather than a
personal crime. Nonetheless, the
prosecutor argued that this case was an example of how gangs operate by ripping
families apart and causing one brother to call his younger brother a liar. The prosecutor told the jury that the gang
culture was the motive for the killing as a gang member expected respect, i.e.,
that people would be afraid of him, and the gang earned respect by committing
violent crimes.
Thus, while
noted by the dissent, there was no incendiary gang evidence of the type present
in Albarran, the prosecutor’s
argument was centered on the fact this was a gang murder which benefitted the
Eastside Wilmas. The prosecutor asserted
Maldonado’s (the gang expert) testimony was important because it explained the
motive behind the killing. Maldonado
opined that when an individual got out of the car, walked up to appellant and
challenged him, appellant could not back down because “backing down would be a
loss of respect” and respect was “everything in the gang world.” Manzano, however, testified that the shooting
took place as soon as Robledo stepped out of the car; and that Robledo did
nothing before he was shot. Even the
fact that Robledo got out of the car after bottles and cans had been thrown at
the car, provides no evidence of a challenge or confrontation from which
appellant could not back down – there was no evidence that appellant had any
connection to the cans and bottles. The
only evidence was that appellant shot Robledo.
Without any factual support for the expert’s opinion, the gang evidence
was prejudicial, and the prosecutor’s argument about motive was unsupported. Thus, the expert’s opinion that appellant
could not back down without losing respect infected the murder charge as well
as the gang allegation.
Thus,
similar to Albarran, we conclude
admission of the gang evidence also infected appellant’s murder conviction as
it had limited probative value and created a substantial danger of undue
prejudice. (See People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) Accordingly, as in Albarran, this case “presents one of those rare and unusual
occasions where the admission of evidence has violated federal due process and
rendered the defendant’s trial fundamentally unfair.” (People
v. Albarran, supra, 149
Cal.App.4th at p. 232.) Accordingly,
appellant is entitled to a new trial on the murder charge.
The
judgment is reversed and the matter is remanded to the superior court for
further proceedings. On remand, the
superior court is directed to vacate its order denying appellant’s motion for a
new trial and to enter an order granting him a new trial on the murder charge.
WOODS,
J.
I concur:
ZELON, J.
PERLUSS, P.J., Dissenting.
I respectfully dissent.
The majority holds the trial court
did not abuse its discretion when it denied Ezequiel Garcia’s motion to
bifurcate the trial of the gang enhancement allegation based on the People’s
representation the motive for the charged offense, murder, was
gang-related. I agree. (See People
v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez).) The majority
also concludes the evidence at trial was not sufficient to support the jury’s
finding the murder of Ricardo Robledo had been committed for the benefit of a
criminal street gang with the specific intent to promote, further or assist in
criminal conduct by gang members. (Pen.
Code, § 186.22, subd. (b)(1).) I concur
in that conclusion, as well. As my
colleagues explain, the only evidence to support the specific intent element of
the gang enhancement was Garcia’s membership in a gang and the expert’s opinion
that, because he was a gang member, Garcia could not back down once Robledo had
challenged him. That is not enough. (See People
v. Albillar (2010) 51
Cal.4th 47, 60 [“[n]ot every crime committed by gang members is related to a
gang”].)
Notably, however, although legally
insufficient to support the finding Robledo’s murder was gang-related, the
majority does not find the gang evidence proffered by the People was improperly
admitted at trial: Garcia’s gang
membership and information about gang culture were relevant not only to the
gang enhancement allegation itself but also to shed light on Garcia’s behavior
leading up to the shooting—that is, his motive—even in the absence of a
specific intent to benefit the Eastside Wilmas gang. (See Hernandez,
supra, 33 Cal.4th at p. 1049 [“[E]vidence of gang membership is often
relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation
. . . can help prove identity, motive, . . . or other issues pertinent to guilt
of the charge crime.”].)
Nonetheless, my colleagues reverse
Garcia’s conviction for murder, holding the introduction of this admissible
evidence was so prejudicial it deprived Garcia of a fair trial in violation of
his constitutional right to due process.
I cannot join that conclusion, which, although generally based on this
court’s analysis in People v. Albarran
(2007) 149 Cal.App.4th 214 (
significant difference between the inflammatory gang testimony in that case and
the relatively tepid evidence in the case at bar. (See id.
at p. 229 [“‘Only if there are no permissible inferences the jury may draw from
the evidence can its admission violate due process. Even then, the evidence must “be of such
quality as necessarily prevents a fair trial.”’”]; see generally
903, 913 [“[t]he admission of relevant evidence will not offend due process
unless that evidence is so prejudicial as to render the defendant’s trial
fundamentally unfair”]; People v. Partida
(2005) 37 Cal.4th 428, 439 [“the admission of evidence, even if erroneous
under state law, results in a due process violation only if it makes the trial
In Albarran, supra, 149 Cal.App.4th 214, like the case at bar, the
People’s evidence was insufficient to prove the criminal street gang
enhancements. Turning to the impact of
that evidence on the trial of the underlying charges, this court emphasized
there had been extensive testimony concerning predicate acts by other gang
members that were not related to the charged crime or even to the
defendant—evidence this court characterized as “extremely and uniquely
inflammatory.” (Id. at p. 230.) “Certain
gang evidence, namely the facts concerning the threat to police officers, the
Mexican Mafia evidence and evidence identifying other gang members and their
unrelated crimes, had no legitimate purpose in this trial.” (Ibid.;
cf. Hernandez, supra, 33 Cal.4th at
p. 1049 [explaining bifurcation of a gang enhancement allegation may be
appropriate because of the unduly prejudicial impact of evidence of predicate
offenses offered to establish a “pattern of criminal gang activity”].) In particular, this court noted references to
the Mexican Mafia “are extremely prejudicial” (Albarran, at p. 230, fn. 15), and suggested several other times in
the opinion any evidence concerning the Mexican Mafia should have been excluded
under Evidence Code section 352. (See,
e.g., id. at pp. 228 & fn. 11,
230, fn. 14.)
No similar incendiary gang evidence
was presented here. Although gang expert
Officer Mark Maldonado testified the primary activities of the Eastside Wilmas
were homicide, robbery, aggravated assault, vehicle theft and narcotics sales,
the two predicate criminal acts he described were unlawful driving or taking of
a motor vehicle and simple robbery. In
addition, at Garcia’s request the trial court instructed the jury with CALCRIM
No. 1403, detailing the limited purposes for which the evidence of gang
activity had been received and specifically advising the jury, “You may not
consider this evidence for any other purpose.
You may not conclude from this evidence that the defendant is a person
of bad character or that he has a disposition to commit crime.” It is, of course, presumed the jury followed
the court’s instruction. (
139 [“we and others have described the presumption that jurors understand and
follow instructions as ‘[t]he crucial assumption underlying our constitutional
system of trial by jury’”]; People v.
Holt (1997) 15 Cal.4th 619, 662 [“[j]urors are presumed to understand and
follow the court’s instructions”].)
Whatever minimal impact this
evidence of gang activity may have had on the jury, the independent evidence
supporting its verdict finding Garcia guilty of murder is compelling. Garcia was identified as the shooter by an
eyewitness in a photographic six-pack lineup and again by that witness in court
at the preliminary hearing. In addition,
the police detective who interviewed Garcia’s mother testified she told her
Garcia had admitted he had killed someone the day after Robledo’s murder and
had to leave. Garcia, in fact, left the
home he shared with his mother on that day; and she did not see him for the
next seven years. In finding Garcia
guilty, the jury plainly credited the identification testimony, as well as
Garcia’s admission to his mother, discounted any purported inconsistencies in
the eyewitness’s preliminary hearing testimony and disbelieved the defense
evidence suggesting the eyewitness had not seen the shooting.
In sum, considering the limited
potential prejudicial impact of the gang-related evidence (with its related
limiting instruction) against the weight of the evidence of Garcia’s guilt on
the underlying charge of murder, I cannot conclude the trial was so arbitrary
and fundamentally unfair that it violated Garcia’s constitutional right to due
process (see Albarran, supra, 149
Cal.App.4th at pp. 229-230) or that a gross unfairness has occurred that
undermines my confidence in the jury’s verdict (id. at pp. 239-240 (dis. opn. of Perluss, P. J.).
PERLUSS,
P. J.
preliminary hearing testimony was read to the jury after the court determined
he was unavailable as a witness and the People had exercised due diligence in
attempting to locate him.
name="_ftn2" title="">[2] In
court, appellant’s mother denied making that statement to police.
