P. v. Jaimez
Filed 4/4/13
P. v. Jaimez CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANGEL ALEZ JAIMEZ et al.,
Defendants and Appellants.
B235373
(Los Angeles
County
Super. Ct.
No. BA371027)
APPEAL from
judgments of the Superior Court of the County
of Los
Angeles, Ronald H. Rose and Kathleen Kennedy, Judges. Affirmed as modified.
Susan E.
Nash, under appointment by the Court of Appeal, for Defendant and Appellant
Angel Alez Jaimez.
Jennifer A.
Mannix, under appointment by the Court of Appeal, for Defendant and Appellant
Ernie Gonzalez.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff
and Respondent.
>
INTRODUCTION
Defendant and appellant Ernie Gonzalez was
convicted of murder (Pen. Code,
§ 187, subd. (a)
name="_ftnref1" title="">[1]) and willful, deliberate
and premeditated attempted murder (§§ 664 and 187, subdivision (a)). Defendant and appellant Angel Alez Jaimez was
convicted of false imprisonment by violence (§ 236) and dissuading a witness
from reporting a crime (§ 136.1, subd. (b)(1)).
On appeal, both defendants contend that the trial court erred in
admitting expert testimony of prior
shootings among members of their gang.
In addition, Gonzalez contends that the trial court violated his
Amendment by admitting hearsay evidence as a basis for the testimony of
prosecution’s gang expert and erred by imposing an unauthorized sentence term
of “15 years to life†on his conviction for attempted murder, and that the
abstract of judgment should be amended to reflect correctly the jury’s true
finding on the firearm use enhancements.
Jaimez contends that there is not substantial
evidence to support the jury’s true findings for the gang enhancements and
that the trial court erred in failing to provide him with presentence conduct
credit.
We order that Gonzalez’s abstract
of judgment be corrected by stating that he is sentenced on count 2 to a life
term with a 15 year minimum eligible parole date, and the firearm use
enhancements are imposed under section 12022.53, subdivision (d), and Jaimez’s
abstract of judgment be corrected to provide that he is entitled to presentence
conduct credit. We otherwise affirm the
judgments.
>
BACKGROUND
Factual
Background
1. The Murder of Griselda
Marcelo and the Attempted Murder of Bonifacio
Marcelo
a. Prosecution Evidence
Little
Valley is a criminal street gang operating in East Los Angeles.
Bonifacio Marcelo testified that when he was 13 years old,
he was a member of Little Valley. His
sister, Griselda Marcelo,
name="_ftnref3" title="">[3] was not a member of Little
Valley.
Bonifacio
testified that he lived with his parents and Griselda and that their residence
was within Little Valley’s territory.
When Bonifacio was 19 years old, he decided that he no longer wanted to
be a member of Little Valley, but to leave Little Valley he needed to obtain
permission from the well-respected members of the gang. Bonifacio never obtained that permission, and
he moved to Las Vegas for
approximately three years. Around April
2008, Bonifacio moved back to Los Angeles
and lived with his parents and Griselda again.
Bonifacio
testified that he was familiar with high-ranking members of Little Valley. On October
16, 2008, Bonifacio spoke to “Nani,†a “vetereno†and the oldest
member of Little Valley. Nani asked
Bonifacio if Bonifacio knew of a person who sold guns because Nani needed one
for his nephew, Jaimez, because Jaimez had just been released from jail. Bonifacio responded that he did not know
where to buy a gun. Bonifacio did not
know that it was a sign of disrespect to say no to a veteran, and he was not
trying to disrespect Nani when he responded.
Bonifacio
testified that Jaimez was a member of Little Valley and that his moniker was
“Vago.†Los Angeles County Sheriff’s
Department Detective Ignacio Lugo, the prosecution’s gang expert, testified
that Gonzalez was a “shot caller†(one who dictates certain activities) and a
high-ranking, well-respected member of Little Valley, and his moniker was “Big
Sneaks.†Gonzalez had several
gang-related tattoos, including “LVâ€
tattooed on his chest and “Eastside†tattooed on his stomach.
Bonifacio
testified that on October 17, 2008,
at approximately 12:00 noon, Bonifacio and Griselda left their home
together. About 20 minutes later, they
met some of Griselda’s friends at the intersection of Eastman
Avenue and Princeton
Street, and a white Toyota
and a red Intrepid were driven by them.
After Griselda finished talking with her friends, Bonifacio and Griselda
began walking again. The white Toyota
and a red Intrepid returned and passed by them again. Griselda pointed to the driver of the white Toyota
and said, “Look. There’s homie
Vago.†The white Toyota
and a red Intrepid made a u-turn, drove toward Bonifacio and Griselda again,
and stopped. Bonifacio saw Jaimez, who
was driving the Toyota, and
Gonzalez, who was in the passenger seat of the Toyota.
Bonifacio
testified that Gonzalez asked him, “Where you from?†and pulled out a chrome
colored revolver. Bonifacio replied, “No
where†[sic].
Detective Lugo
testified that when a gang member asks another member, “where you from?,†the
other gang member is expected to claim his gang. The question Gonzalez asked Bonifacio means,
“Are you loyal to [Little Valley]?†If
the other gang member responds “nowhere,†it is “very disrespectful.†A person telling a gang member that he is no
longer part of the gang may be considered more disrespectful than just moving
out of the neighborhood. If a person
states that he is no longer part of the gang, the gang would retaliate against
him, including the person being physically assaulted, shot, or killed.
Bonifacio
testified that in response to his stating, “No where†[sic]. Gonzalez stated, “Fuck
Little Valley†and started shooting.
Bonifacio ran behind a truck but he was shot in the left leg. Griselda fell to the ground. Los Angeles County Coroner’s Office Medical
Examiner Ajay Panchal testified that Griselda sustained two fatal gunshot
wounds. Bonifacio testified that the Toyota
and Intrepid were driven away immediately after the shootings.
Bonifacio
testified that sheriff’s deputies arrived at the scene of the shootings, but
Bonifacio “didn’t say anything†to them about the shooting because he feared
further retaliation if he did so. Once
Bonifacio learned that Griselda had died, he told the police what had occurred. Los Angeles County Sheriff’s Department Detective
James Charles testified that a murder weapon was never found.
Detective
Charles testified that on October 19, 2008, a 911 call was made to the East Los
Angeles County Sheriff’s Department by Manuel Robles from a residence located
on South Record Street. Robles testified
that the residence belonged to his father.
The audio recording of a 911 call was played for the jury. During the 911 call, Robles requested that
deputies be dispatched
to the 400 block of South Record Street because “there’s a gang member that you
guys have been wanting to get . . . hanging around.†Robles stated that Gonzalez, who
Robles identified as a Little Valley gang member, was loitering in the
area. Detective Lugo testified that the
400 block of South Record Street falls within Little Valley territory.
Los Angeles
County Sheriff’s Department Deputy Yvette Reyes testified that she and her
partner, Deputy Hanamaikai, responded to the 911 call. Deputy Reyes instituted a “tactical plan that
had been put in place†by coordinating with other law enforcement units who
were covering a two block radius around the location because they received
information that one of the people at the location was somebody for whom they
had been advised to look. The person
they were looking for was wanted for murder, and there was an outstanding
warrant for his arrest. When they
arrived at the scene, Deputy Reyes saw Gonzalez, Jaimez, and two other men
standing near a cul-de-sac on the 400 block of South Record Street. The deputies ordered the men to put their
hands up and to stop what they were doing.
Two of the men complied with the order, but Gonzalez and Jaimez ran to
the rear of the residence of Robles’s father. Deputies Reyes and Hanamaikai detained the
two men that complied with their orders, but they did not pursue Gonzalez and
Jaimez because they had the assistance of a helicopter unit. Deputy Reyes participated in an evacuation of
the 400 block of South
Record Street. Several announcements
were made ordering everyone out of the residences, and eventually Gonzalez
exited the residence of Robles’s father and was arrested.
Rosa
Reynoso testified that in the evening of October 19, 2008, she was having a
barbeque in the front of her house, and Jaimez appeared on the side of her
residence. Jaimez was not invited to the
barbeque, and Reynoso did not know him.
(The events here are discussed in more detail post.) The police arrived at
Reynoso’s residence and Jaimez was taken into custody.
Detective
Lugo testified that Little Valley was a “traditional†gang that has existed for
approximately 60 years and has approximately 100 members. A gang’s territory is the gang’s “heart;†it
is “what they fight for . . . and what they’ll kill
for.†Little Valley’s territory is
bordered by Indiana Street to the west, Whittier Boulevard to the south, Downey
Road to the east, and Interstate 5 to the north. In order to establish their territory, a gang
must commit crimes within that territory.
This creates an atmosphere of fear and intimidation, and dissuades
witnesses of crimes from reporting the crimes and testifying in court. The primary activities of Little Valley
include tagging, automobile thefts, narcotic sales, transportation of
narcotics, burglaries, transportation of weapons, extortions, kidnapping,
assaults, drive-by shootings, attempted murders, and murders.
Certified
court orders of two cases in which Ilene Munoz and Jose Veira were named as
defendants were introduced to establish that they had been convicted in about
March 2008 of assault with a deadly weapon or assault by means likely to
produce great bodily injury. Detective
Lugo testified that Munoz and Viera were Little Valley gang members at the time
they committed the crime. Detective Lugo
did not state how he knew Munoz was a gang member, but he said that the basis
for his information that Viera was gang member was that “other detectives that
handled the case†had “mentioned†it.
The
prosecutor asked Detective Lugo to assume, hypothetically, facts closely
tracking the evidence concerning the shootings of Bonifacio and Griselda. Based on those facts, Detective Lugo opined
that the shootings would have been committed for the benefit of, at the
direction of, and in association with a criminal street gang, and would have
been an effort to promote, further, or assist criminal conduct by gang
members. Detective Lugo stated that the
basis for his opinion was, inter alia, that a gang considers it “wrong†for
someone like Bonifacio, who disassociated himself from a gang without
permission, to “just show back up†in the gang’s territory. It is disrespectful for someone like
Bonifacio, a former low-level gang member, to refuse to attempt to procure a
firearm for a well-respected gang member.
When the person is asked by a gang member, “Where are you from,†and
responds, “nowhere,†the person like Bonifacio is essentially communicating to
the gang member that the person “turn[ed] his back†to the gang and is
“basically telling the gang to fuck off.â€
A shooting under the circumstances reinforces the fear and intimidation
within the community. When a gang member
kills another member of that gang—i.e., when the gang is “cleaning houseâ€[
up the shipâ€â€”all of the other members of that gang “are going to know either
you’re in or you’re out,†and members of rival gangs will know that the killing
gang is “serious.†The shootings of
Bonifacio and Griselda occurred in or near Little Valley’s territory.
b. Defendant’s Evidence
Valerie
Moriel, Gonzalez’s girlfriend, testified that in October 2008, she was living
with Gonzalez. On October 17, 2008,
Gonzalez was watching his little sister at their home. Moriel left home for work that day at 6:30
a.m., and returned home at 4:00 p.m.
California
Department of Corrections Parole Agent Arthur Evans testified that in October
2008, Gonzalez was on parole with a condition that he was not to associate with
known gang members. The parties
stipulated that in October 2008, Jaimez was on parole with the same condition.
The parties
stipulated that a video depicted that on October 17, 2008, at 7:32 a.m., Jaimez
entered the Superior Court of Los Angeles Commonwealth courthouse. Gloria Sera-Mulet, a Superior Court of Los
Angeles family law paralegal, testified that at 9:00 a.m. or 9:30 a.m. she met
with Jaimez at the courthouse to assist him in preparing documents for his
family law case that was pending there.
The preparation of the documents took about three hours. Before Sera-Mulet went to lunch at about 1:00
p.m. she told Jaimez that she was going to lunch and he should return to her
office after lunch. On
cross-examination, Sera-Mulet stated that she previously testified that she did
not remember whether she spoke with Jaimez between 12:00 p.m. and 1:00
p.m. The parties stipulated that a video
depicted that from 1:21 p.m. to 1:28 p.m., Jaimez was standing in line at a
Carl’s Jr. restaurant across the street from the courthouse, and that at 1:53
p.m., Jaimez entered the Commonwealth courthouse.
c. Prosecution Rebuttal Evidence
Detective
Charles testified that Sera-Mulet told him during her October 21, 2008,
interview that the preparation of the documents for Jaimez took about 90
minutes, not three hours. Sera-Mulet
told Detective Charles that she worked with Jaimez from 8:30 a.m. to 10:00
a.m., directed Jaimez to go without her to another office in the courthouse,
the latest Jaimez should have been in the courthouse if he went to the other
office as instructed would be noon, and Jaimez returned to see her at about
2:30 p.m. A defense investigator said
that driving 55 miles per hour, it took him 18 minutes to drive from the
courthouse to the area in which the shooting occurred at about one p.m.
>
False Imprisonment of Rosa Reynoso and Dissuading Her from Reporting
a Crime
As discussed below,
following the first trial Jaimez was convicted of false imprisonment and
dissuading a witness from reporting a crime (counts 3 and 4), but the trial
court declared a mistrial as to the counts against both Jaimez and Gonzalez for
the murder of Griselda in violation of section 187, subdivision (a) (count 1),
and the willful, deliberate and premeditated attempted murder of Bonifacio in
violation of sections 664 and 187, subdivision (a) (count 2). The facts relating to the crimes of murder
and attempted murder from the second trial are substantially the same as those
in the first trial. To avoid repetition
of the facts relating to the murder and attempted murder, the facts in this section
only include those relevant to Jaimez’s conviction from the first trial—false
imprisonment of Reynoso and dissuading her from reporting a crime.
a. Prosecution Evidence
Reynoso
testified that on October 19, 2008, she was having a barbeque at her residence
on Langford Street. Detective Charles
testified that Reynoso’s residence was approximately one block from the residence of Robles’s
father on South Record Street, which Detective Lugo, the prosecution’s gang
expert, testified was within Little Valley’s territory.
Reynoso
testified that during the barbeque an “uninvited†person came towards her from
the rear of the property. Reynoso told
her family members that were inside the house to remain inside, locked the
security gate, and returned to the outside of the house. She told the police that this “uninvitedâ€
person, a male, told her to sit with him on the front porch, that he had a gun,
and that when the police came to tell them he is her friend. Reynoso also told the police that she did not
see a gun, but that she sat on the front porch with this person because she was
“scared.†The police arrested that
person.
Many of Reynoso’s answers to
the prosecutor’s questions were “I don’t remember.†Reynoso testified at trial that about
two weeks after the October 19, 2008, incident, she found nine bullets on her
porch. She was afraid to come to court
to testify in this case, and she told that to Detective Charles. Reynoso declined Detective Charles’s offer to
have her relocated out of the neighborhood.
When Reynoso was asked on cross-examination whether she “was trying
[her] best to remember everything [she] can now?,†she responded, “I don’t want
to remember anything.†When Reynoso was
asked on cross-examination whether she saw “someone get arrested that
night that we’ve been talking about . . .,†she began to cry and,
therefore, the trial court took a recess.
Shortly after the trial resumed, Reynoso said that, “All I want to say
is that I don’t want to have any problems.
I’m very scared. I don’t want to
have any problems with this man and I don’t know anything.â€
Los Angeles
County Sheriff’s Department Deputy Rodney Gutierrez testified that on October
19, 2008, he responded to a call to go to the Langford Street location because
“another East L.A. patrol unit received a call of gang members hanging out in
the area that were wanted for a recent murder.â€
When Deputy Gutierrez arrived at the scene a “containment†had been set
up that comprised of approximately ten deputies, two two-person patrol vehicles,
and an “airship.†Deputy Gutierrez initially saw Jaimez in the rear of
Reynoso’s residence, and after about a two-hour search, Deputy Gutierrez
located Jaimez on the porch of Reynoso’s residence. Jaimez was arrested.
Deputy
Gutierrez and his partner, Deputy Luis Alva, then spoke with Reynoso, who
initially identified Jaimez as her friend.
Reynoso appeared to be shaken and nervous. When Deputy Alva asked Reynoso why she was
nervous or scared, Reynoso recanted her initial statement that Jaimez was her
friend and told the deputies “that she was gonna come out and tell the truth to
us. She was scared and—but she wanted to
tell us the truth.â€
Deputy
Gutierrez testified that Reynoso said, outside the presence of Jaimez, that
when she was barbequing on her front porch, she saw Jaimez run onto her
property. Jaimez was out of
lock the door and told them not to leave the house. Jaimez told Reynoso that the police were
searching for him, and that she should tell them that Jaimez was her friend and
they were just sitting on the porch.
Jaimez told Reynoso that she could not leave the front porch area, he
was a Little Valley gang member, and he had a gun. Reynoso did not see the gun, but Jaimez was
“cradl[ing] his waistband area.†Jaimez
told Reynoso that if she tried to leave, he or his gang member friends would
harm her or her family. Reynoso complied
with Jaimez’s directive to stay on the front porch with him because she was
afraid for herself and her family.
Reynoso said that she was confined to the porch with Jaimez for about
two hours.
Detective
Charles testified that Reynoso told him before trial that she was not sure from
where the nine bullets came. Reynoso
said that a Hispanic man came to her residence, told her that he was Jaimez’s
friend, warned her not to testify, and told her that something bad would happen
to her if she testified.
name="_ftnref6" title="">[6] Reynoso said that she was very reluctant to
testify and she would rather go to jail than testify.
An audio
recording of a conversation between Jaimez and Gonzalez that occurred while
they were in the same patrol car following their arrest on October 19, 2008,
was played for the jury. During the
conversation, Jaimez said laughing, “I was right there with my friends, some
hyna. And we were eating. Well, she had a barbecue.â€
An audio
recording of a conversation between Jaimez and Gonzalez that occurred while
they were in the same jail cell was played for the jury. The following exchange occurred during the
conversation: “[Jaimez:] I know them mother-fuckers are hearing us
right now . . . .
[¶] [Gonzalez:] Ah’ fuck them. [¶] [T]hey’re probably like . . .
why aren’t they breaking. Like they’ll
be expecting us to start saying something know what I mean— [Gonzalez:]
Yeah. [Jaimez:] —like why haven’t they said it yet because
these—these fools are stupid homey.â€
b. Defendant’s Evidence
The parties
stipulated that in October 2008, Jaimez was on parole with a condition that he
was not to associate with known gang members.
B.
Procedural
Background
Following a trial, the jury found
Jaimez guilty of the false imprisonment of
Reynoso by violence in violation of section 236 (count 3), and
dissuading Reynoso from reporting a crime in violation of section 136.1,
subdivision (b)(1) (count 4). The jury
deadlocked on charges against both Jaimez and Gonzalez for the murder of
Griselda in violation of section 187, subdivision (a) (count 1), and the
willful, deliberate and premeditated attempted murder of Bonifacio in violation
of sections 664 and 187, subdivision (a) (count 2), and the trial court
declared a mistrial as to those counts and dismissed the jury.
As to Jaimez, the jury found true
that the offenses charged in counts 3 and 4 were committed for the benefit of,
at the direction of, and in association with a criminal street gang with the
specific intent to promote further and assist in criminal conduct by gang
members in violation of section 186.22,
subdivision (b)(1)(A) as to count 3, and subdivision (b)(4) as to count 4. The trial court denied Jaimez’s oral motion
for new trial, and sentenced Jaimez to state prison for a term of seven years
to life. The trial court awarded Jaimez
1025 days of actual custody credit, but did not award him any conduct credit. ~
Gonzalez was retried on counts 1
and 2. Following the retrial, the jury
found Gonzalez guilty of the murder of Griselda in violation of section 187,
subdivision (a) (count 1), and the willful, deliberate and premeditated
attempted murder of Bonifacio in violation of sections 664 and 187, subdivision
(a) (count 2). The jury found true that
the offenses charged in each of those counts were committed for the benefit of,
at the direction of, and in association with a criminal street gang with the
specific intent to promote further and assist in criminal conduct by gang
members in violation of section 186.22,
subdivision (b)(1)(A) as to count 1, and subdivision (b)(1)(C) as to count
2. As to both counts, the jury also
found true that Gonzalez personally and intentionally discharged a firearm and
proximately caused great bodily injury or death within the meaning of section
12022.53, subdivision (d).
The trial court sentenced Gonzalez
to state prison for a term of 90 years to life, consisting of the following: on
count 1, 25 years to life for the murder of Griselda, plus 25 years for the gun
use enhancement; on count 2, 15 years to life for the premeditated attempted
murder of Bonifacio and the gang allegation, plus 25 years to life for the gun
use enhancement. The trial court awarded
Gonzalez 1061 days of actual custody credit.
DISCUSSION
A. Gonzalez’s Argument
Regarding Admission of Gang Expert Testimony
Gang Members
Gonzalez contends
that the trial court violated his rights to due process and a fair trial when
it denied his request to exclude gang expert testimony concerning “in-house
shootings†between Little Valley Gang members.
We disagree.
1. Standard
of Review
“On appeal,
we apply an abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence.â€
(People v. Guerra (2006) 37
Cal.4th 1067, 1140; see People v. Carter
(2003) 30 Cal.4th 1166, 1194 [admission of gang evidence reviewed for abuse of
discretion].) “A trial court abuses its
discretion when its ruling ‘fall[s] “outside the bounds of reason.â€â€™ [Citations.]â€
(People v. Waidla (2000) 22
Cal.4th 690, 714.) If the erroneous
admission “implicates defendant’s federal constitutional rights to due process
and concerns the fundamental fairness of his trial, we will apply the de novo
standard of review.†(
Cal.App.4th 214, 225, fn. 7 (Albarran).)
2. Background Facts
During opening statement, the
prosecutor stated, “You’ll hear about the history of this gang and how a civil
war, essentially, broke out within this gang where Little Valley gang members
started killing Little Valley gang members and . . . this
sort of killing of your own kind . . . was something taking place in
Little Valley around the time of our shooting.
[¶] . . . [¶] You’ll hear that
because of this civil war, there was some return to sort of an old-school
philosophy within the gang. They wanted
to tighten up the ship and get rid of those members who were considered weak,
so somebody like Bonifacio, who left the gang and came back and wasn’t
participating, would be viewed as weak.â€
The prosecutor also stated, “and you will have a history and culture of
Little Valley and the different individual’s role in that gang and how their
role in that gang developed a motive for this particular shooting . . . .â€
Gonzalez’s
counsel stated during opening statement, “[T]he People will call their gang
expert to tell you . . . what he believes was the motive for why the
shooting happened. [¶] And he
will say that this was a disciplinary killing, but he will not be able to offer
you one single example . . . of a Little Valley member being disciplined,
being assaulted or shot at for leaving the area or leaving the gang.â€
Gonzalez filed a motion to exclude
gang-related shootings on the grounds that, inter alia, the evidence was
irrelevant, and it was substantially more prejudicial than probative under
Evidence Code section 352. The trial
court denied the motion, stating, “I [will] not allow specifics of the prior
shootings, but the fact that there were prior shootings, [and] they are not
going to be connected to either [Gonzalez or Jaimez], but that there were just,
in general, prior shootings of Little Valley on Little Valley.†The trial court then granted the request of
Gonzalez’s counsel to ask the prosecutor’s gang expert whether anyone had ever
been arrested, tried or convicted for any of the prior shootings without it
“opening the door†to the specifics about the prior shootings, stating, “I
think that’s reasonable.â€
At trial,
Detective Lugo testified that when a gang member kills a member of his own
gang, it is sometimes called “cleaning house †or “tightening up the
ship.†One reason to “clean house†is to
discipline a disloyal member. Detective
Lugo testified that if a person “disappear[s] from the gang
without . . . getting permission in the modern way of doing
things, and [that person] start[s] showing up, and they suspect you of doing
things against the gang, [that person] would be considered disloyal,
disrespectful. [That person] is not
following orders. [That person does not]
want to pick up where [that person] left off for the gang.â€
Detective
Lugo testified that Little Valley “cleaned house†in 2001, involving two
high-ranking gang members, June 2005, July 2005, November 2005, and December
2006. There was an arrest and conviction
for the incident that occurred in 2001, and during the trial regarding that
incident a Little Valley gang member testified against another Little Valley
gang member. No one had ever been
prosecuted for or convicted of the other four incidents. Detective Lugo was the lead investigator
concerning some of those incidents and he ran into “problems with getting
people to cooperate in court.†Detective
Lugo and other gang investigators in east Los Angeles have used the phrases
“in-house cleaning†or “cleaning house†with one another concerning Little
Valley.
After the introduction of evidence,
the trial court instructed the jury under CALCRIM No. 1403, modified, as
follows: “You may consider evidence of gang activity only for the limited
purpose of deciding whether: [¶]
The defendant acted with the intent, purpose and knowledge that are
required to prove the gang-related crimes and enhancements charged
crimes charged. [¶] You may
also consider this evidence when you evaluate the credibility or believability
of a witness and when you consider the facts and information relied on by an
expert witness in reaching his or her opinion. [¶] 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.â€
During closing argument, Gonzalez’s
counsel argued that the shootings of Bonifacio and Marcelo were not Little
Valley “in-house shootings,†but rather were committed by a rival gang member.
Gonzalez
contends that the evidence of the prior Little Valley “in-house shootings†was
not relevant. “‘“Only relevant evidence
is admissible [citations], and all relevant evidence is admissible unless
excluded under the federal or California Constitution or by statute. [Citations.]
Relevant evidence is defined in Evidence Code section 210 as evidence
‘having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.’ The test of relevance is whether the evidence
tends ‘“logically, naturally, and by reasonable inference†to establish
material facts . . . .
[Citations.]’ [Citation.] The trial court has broad discretion in
determining the relevance of evidence [citations] . . . . [Citations.]â€
[Citation.]’ [Citation.]†(People
v. Carter, supra, 36 Cal.4th at pp. 1166-1167.)
Contrary to
Gonzalez’s contention, the evidence of Little Valley’s prior “in-house
shootings†was
relevant to establish that the attempted murder of Bonifacio was gang
related and that Gonzalez had a motive to commit the crimes charged—i.e., to discipline a member
for leaving the gang without permission.
Gonzalez
contends that the evidence was irrelevant because it was unknown who committed
the prior Little Valley shootings or the reason they occurred. Detective Lugo, however, testified that the
persons who committed the prior Little Valley shootings were Little Valley gang
members. Detective Lugo was the lead
investigator concerning some of the incidents of Little Valley cleaning
house. Detective Lugo testified that
when a gang member kills a member of his own gang, it is sometimes called
“cleaning house,†and he and other gang investigators had used the phrases
“cleaning house†and “in-house cleaning†with one another concerning Little
Valley.
Detective Lugo also testified about
the reasons that the incidents of cleaning house occur—to discipline a disloyal
member. He testified that they occur
when a person “disappear[s] from the gang without . . . getting
permission in the modern way of doing things, and [that person] start[s]
showing up, and they suspect you of doing things against the gang, [that
person] would be considered disloyal, disrespectful. [That person] is not following orders. [That person does not] want to pick up where
[that person] left off for the gang.â€
Gonzalez
contends that the evidence was substantially more prejudicial than
probative. “Relevant evidence may nonetheless
be excluded under Evidence Code section 352 at the trial court’s discretion if
‘its probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.’ . . . (People v. Ledesma (2006) 39 Cal.4th 641, 701.)†(People
v. Richardson (2008) 43 Cal.4th 959, 1000-1001.) “‘The “prejudice†referred to in Evidence
Code section 352 applies to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very little effect on
the issues. In applying section 352,
“prejudicial†is not synonymous with “damaging.â€â€™ [Citation.]â€
(People v. Karis (1988) 46
Cal.3d 612, 638; see People v. Kipp
(2001) 26 Cal.4th 1100, 1121.)
Gonzalez
contends that the evidence was prejudicial because “the testimony on the prior
unresolved murders amounted to guilt by association. . . . Undoubtedly, the jury made the connection
that not only was [Gonzalez] violent, but he was probably somehow involved in
the prior unsolved murders.†The jury,
however, was instructed that the evidence of gang activity was admitted for the
limited purpose of proving the gang enhancement and to show motive, and that it
could not be considered for any other purpose, including as character
evidence. We presume the jury followed
the trial court’s instructions. (
719; People v. Bennett (2009) 45
Cal.4th 577, 596; People v. Johnson
(2009) 180 Cal.App.4th 702, 710.) It is
almost an “‘invariable assumption of the law that jurors follow their
instructions.’ [Citation.] ‘[We] presume that jurors, conscious of the
gravity of their task, attend closely the particular language of the trial
court’s instructions in a criminal case and strive to understand, make sense
of, and follow the instructions given them.’
[Citation.]†(
Cal.App.4th 702, 740.)
Gonzalez contends that the evidence
of Little Valley’s “in-house shootings†was cumulative to Detective Lugo’s
testimony “that gang members could be disciplined or killed for many different
reasons,†including for leaving the gang without permission, and disrespecting
a higher ranking gang member. Evidence
of the incidents of Little Valley cleaning house was not cumulative, warranting
exclusion. Gonzalez’s defense was that
the shootings of Bonifacio and Marcelo were not “in-house shootings,†but
rather were committed by a rival gang member.
Evidence of Gonzalez’s motive to commit the crimes, therefore, was
essential to the prosecution’s case against him. In addition, the introduction of the
contested evidence did not involve an undue consumption of time because the
trial court precluded the prosecutor from eliciting testimony about the
specifics of the prior Little Valley intra-gang shootings, while allowing
Gonzalez’s counsel to ask the prosecutor’s gang expert whether anyone had ever
been arrested, tried or convicted for any of the prior shootings without it
“opening the door†to the specifics about the prior shootings.
“‘Evidence that is identical in subject matter
to other evidence should not be excluded as “cumulative†when it has greater
evidentiary weight or probative value.’
(People v. Mattson (1990) 50
Cal.3d 826, 871 [268 Cal.Rptr. 802, 789 P.2d 983].)†(People
v. Filson (1994) 22 Cal.App.4th 1841, 1851, overruled on other grounds as
stated in People v. Martinez (1995)
11 Cal.4th 434, 452.) Evidence of actual
instances of Little Valley’s cleaning house has greater evidentiary weight and
probative value than Detective Lugo’s testimony that gang members “could†be
disciplined or killed. Accordingly, the
trial court did err in admitting the evidence.
B. Gonzalez’s Argument That
His Right to Confrontation Was Violated Because
Detective Lugo’s Expert Testimony Was Based on
Relying primarily on
36 (Crawford), Gonzalez contends that
the trial court violated his right to confrontation under the Sixth Amendment
by allowing Detective Lugo, in his expert testimony, to rely on inadmissible
hearsay statements of others. We
disagree.
1. Forfeiture
The
Attorney General contends that Gonzalez forfeited his contention that his right
to confrontation under the Sixth Amendment as articulated by
Detective Lugo’s expert testimony to be based on inadmissible hearsay
statements because Gonzalez failed to object to Detective Lugo’s testimony on
this ground.
“When a
party does not raise an argument [before the trial court], he may not do so on
appeal. (People v. Raley (1992) 2 Cal.4th 870, 892 [8 Cal.Rptr.2d 678, 830
P.2d 712]; People v. Benson (1990) 52
Cal.3d 754, 782, fn. 5 [276 Cal.Rptr. 827, 802 P.2d 330].)†(People
v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on other grounds as
stated in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22; In re Michael
L. (1985) 39 Cal.3d 81, 88 [“Objections not presented to the trial court
cannot be raised for the first time on appealâ€].) “‘The reason for this rule is that “[i]t is
both unfair and inefficient to permit a claim of error on appeal that, if
timely brought to the attention of the trial court, could have been easily
corrected or avoided.†[Citations.] “[T]he forfeiture rule ensures that the
opposing party is given an opportunity to address the objection, and it
prevents a party from engaging in gamesmanship by choosing not to object,
awaiting the outcome, and then claiming error.â€
[Citation.]’ (
46 [73 Cal.Rptr.3d 605, 178 P.3d 1100].)â€
(People v. Hawkins (2012) 211
Cal.App.4th 194, 203.)
Gonzalez
concedes that he “failed to object [to] the gang’s expert testimony on
Confrontation grounds or under Crawford
v. Washington, supra, 541 U.S. 36.â€
Gonzalez contends, however, that such an objection was not required
because it would have been futile for him to make such an objection. (People
v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Citing People
v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 and People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, Gonzalez argues
the objection would have been futile because appellate courts have held that an
expert’s opinion that is based on hearsay statements does not offend the
confrontation clause, and under the principles of stare decisis, the trial
court would be required to follow those opinions. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
130 Cal.App.4th 1202, and the court in People
v. Hill (2011) 191 Cal.App.4th 1104, disagreed with People v. Thomas, supra,
130 Cal.App.4th 1202, but nevertheless felt it was bound by
605, 618 (Gardeley). (People
v. Hill, supra, 191 Cal.App.4th
at pp. 1121-1122, 1131.)
States Supreme Court confrontation clause authorities, held that the
evidence could not be excluded as hearsay.
It did not determine whether the evidence was testimonial hearsay
subject to the confrontation clause.
Gonzalez’s
contention that his right to confrontation under the Sixth Amendment to the
United States Constitution was violated is a federal issue. At the time Detective Lugo testified, the
state of the law on the confrontation clause was not fixed. (See Bullcoming
v. New Mexico (2011) 564 U.S. ___ [180 L.Ed.2d 610, 131 S.Ct. 2705] (
[183 L.Ed.2d 89, 132 S.Ct. 2221])
In order
for defendant to preserve his contention that his right to confrontation was
violated, he must have objected on that basis.
He did not and, therefore, defendant forfeited his contention.
2. Confrontation
Clause
Even if
defendant had objected that his right to
confrontation was violated, in view of the applicable opinions, which, as
we note, cannot be applied to the issue here with any certainty, and the state
of the record, we conclude there was not a sufficient showing of a
violation. The confrontation clause of
the Sixth Amendment provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.†The United States Supreme Court
held in Crawford, supra, 541 U.S. 36 at pp. 53-54 that the confrontation clause
“bars ‘admission of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’†(
821.)
Although
Gonzalez contends that his constitutional right to confrontation was violated
when Detective Lugo testified about Little Valley’s primary criminal
activities, that Munoz was a Little Valley gang member at the time she
committed the crime of assault, and that “in-house shootings†occurred between
Little Valley Gang members, Gonzalez does not identify the person or persons he
contends he had a right to confront, nor does he specify the out-of-court
statements upon which Detective Lugo purportedly based his testimony and upon
which Gonzalez relies. Gonzalez concedes that “the specific
source of [Detective Lugo’s] information†about Little Valley’s primary
criminal activities “is unclear,†he “did not state how he knew [that Munoz]
was a gang member,†and “it is not clear from Detective Lugo’s testimony the
source of his information regarding†the Little Valley “in-house
shootings.†Similarly, Gonzalez contends
that his right to confrontation was violated when Detective Lugo testified that
he was familiar with the facts of the assault committed by Munoz and Viera on
about March 18, 2008, because he “spoke to the investigator,†but neither
Gonzalez nor the record identify the investigator, the investigator’s
statements, or the circumstances under which the investigator’s statements were
made. Based on the record, we cannot say
that Detective Lugo’s testimony that was purportedly based on certain
unspecified out-of-court statements made by unspecified sources violates
Gonzalez’s right to confrontation.
Gonzalez
also contends that his constitutional right to confrontation was violated when
certified court orders of two cases in which Munoz and Veira were named as
defendants were introduced into evidence to establish that they had been
convicted of assault with a deadly weapon or assault by means likely to produce
great bodily injury. Gonzalez, however,
did not establish that the certified court documents served as a basis for
Detective Lugo’s testimony. Detective
Lugo merely testified that he is aware of the convictions of Munoz and Veira,
but he did not state the basis of his awareness. In addition, assuming Detective Lugo did rely
on these certified court documents in testifying, Gonzalez’s right of
confrontation was not violated because the documents were certified court
records, and there is no legitimate basis upon which Gonzalez may cross-examine
the person who prepared them.
As noted
above, the United States Supreme Court held in Crawford, supra, 541 U.S.
36 at pp. 53-54 that the confrontation clause bars the admission of testimonial
statements of an out-of-court witness who defendant was not permitted to
cross-examine, but “[t]he Crawford
court did not define the term ‘testimonial,’ and the United States Supreme
Court has still not agreed upon a definition.â€
(People v. Holmes (2012) 212
Cal.App.4th 431, 437.) “Although the
high court has not agreed on a definition of ‘testimonial,’ testimonial
out-of-court statements have two critical components. First, to be testimonial, the statement must
be made with some degree of formality or solemnity. Second, the statement is testimonial only if
its primary purpose pertains in some fashion to a criminal prosecution.†(People
v. Dungo (2012) 55 Cal.4th 608, 619; People
v. Lopez (2012) 55 Cal.4th 569, 581-582.)
“It is now settled in California that a statement is not testimonial
unless both criteria are met.†(
Gonzalez
contends that his right to confrontation was violated when Detective Lugo
testified that Viera was a Little Valley gang member at the time he committed
the crime of assault because Detective Lugo said that the basis for his
information was that “other detectives that handled the case†had “mentionedâ€
it. The record does not establish the
circumstances under which the other detectives “mentionedâ€â€”whether directly to
Detective Lugo, overheard by him, or otherwise—that Viera was a Little Valley
gang member. Gonzalez did not establish
any requisite degree of formality or solemnity of the out-of-court “statementâ€
made by the other detectives. “[T]o be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity. (See
to government officers bears testimony . . .’];
certificates determined to be testimonial was a “‘solemn declaration or
affirmationՉۉ۪]; Bullcoming, supra, 564
U.S. ___ [131 S.Ct. at p. 2717] [the laboratory certificate found to be
testimonial was ‘“formalized†in a signed document. . . referring
to . . . rules’ that made the document admissible in court
(citation omitted)] . . . .â€
(People v. Lopez,
that the detective having “mentioned†that Viera was a gang member was not
testimonial and Gonzalez’s constitutional right to confrontation was not
violated. Because we conclude that
Gonzalez did not establish any requisite degree of formality or solemnity of
the out-of-court “statement,†we do not reach the issue of whether its primary
purpose pertained “in some fashion to a criminal prosecution.†(People
v. Dungo, supra, 55 Cal.4th at p.
619 [a statement is testimonial only if both criteria are met].)
Argument Regarding His Sentence on Count 2
Gonzalez
contends that the trial court erred by imposing an unauthorized sentence term
of “15 years to life†on count 2.
Gonzalez contends that, “[I]nstead, the [trial] court should have
sentenced [defendant] to life with the possibility of parole with a minimum of
15 years before being eligible for parole.â€
The Attorney General concedes that Gonzalez’s abstract of judgment must
be corrected to reflect that Gonzalez’s sentence is a term of life in prison
with a minimum wait for parole of 15 years.
Gonzalez
was convicted on count 2—willful, deliberate, and premeditated attempted murder
in violation of sections 187 subdivision (a) and 664—and the jury found true
the gang enhancement allegation under section 186.22, subdivision (b)(1)(C) and
the firearm use enhancement allegation under section 12022.53, subdivision
(d). The trial court sentenced defendant
to state prison for a term of 40 years to life, consisting of 15 years to life
for premeditated attempted murder under sections 187, subdivision (a), 664, and
186.22, subdivision (b)(5), enhanced by an additional 25 years to life under
section 12022.53, subdivision (d), to be served consecutively. As to defendant’s sentence of 15 years to
life, the trial court stated, “As to count 2 [premeditated attempted
murder], . . . [Gonzalez] is ordered to serve a consecutive
15-year-to-life term. The effect of
186.22, (b)(1)(5) becomes a parole eligibility only statute at that point.†The minute order provides in part, “As to
count 2: Defendant to serve 15 years to life. [¶] The
court finds the premeditation makes this a life count, and the 186.22(B)(1)(5)
mandates a minimum of 15 years in state prison on life counts.†The abstract of judgment provided in part,
“15 years to life on count[] 2.â€
Section 664, subdivision (a) provides in relevant part, “[I]f
the crime attempted is willful, deliberate, and premeditated murder, as defined
in Section 189, the person guilty of that attempt shall be punished by
imprisonment in the state prison for life with the possibility of parole.†Section 186.22, subdivision (b)(5) provides
in relevant part, “[A]ny person who violates this subdivision in the commission
of a felony punishable by imprisonment in the state prison for life shall not
be paroled until a minimum of 15 calendar years have been served.â€
“The effect of section 186.22,
subdivision (b)(5) is to increase the minimum parole eligibility date on a
willful, deliberate, and premeditated attempted murder sentence. Absent a determination the accused is subject
to the enhanced sentencing provisions of section 186.22 or some other provision
of law, a sentence for willful, deliberate, and premeditated murder is for a
life term with a minimum wait for parole of seven years. (§ 3046, subd. (a)(1).) However, once a finding pursuant to section
186.22, subdivision (b)(5) is returned, the minimum wait for parole eligibility
under a life sentence is increased to 15 years.[
(People v. Salas (2001) 89
Cal.App.4th 1275, 1280-1281, fn. omitted.)
Although
the trial court stated that as to count 2 Gonzalez was sentenced to serve a 15
year to life term, and the abstract of judgment provided that Gonzalez is
sentenced to “15 years to life on count[] 2,†as noted above, Gonzalez’s
correct sentence should have been life with a 15 year minimum eligible parole
date.
D. Gonzalez’s Argument
Regarding His Abstract of Judgment
Gonzalez
contends that the abstract of judgment should be amended to correctly reflect
the jury’s true finding on the firearm use enhancements. The Attorney General agrees.
The
abstract of judgment misstates the firearm use enhancements imposed on counts 1
and 2. It provides that the enhancements
on those counts are imposed under “12022.53(D)(E)(1) PC,†but the jury found
true the firearm use enhancements under section 12022.53, subdivision (d). The abstract of judgment is to be corrected
as to counts 1 and 2 by deleting the reference to the firearm use enhancements
under “12022.53(D)(E)(1) PC,†and to include instead that the firearm use
enhancements are imposed under section 12022.53, subdivision (d).
E. Jaimez’s Argument That
There is Insufficient Evidence to
Gang Enhancements.
Jaimez
contends that there is insufficient evidence to support the jury’s finding that
he falsely imprisoned Reynoso and dissuaded her from reporting a crime for the
benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members. We disagree.
1. Standard
of Review
“‘In
reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.â€â€™ ([People v.] Rowland
[(1992)] 4 Cal.4th [238,] 269 . . . .) We apply an identical standard under the
California Constitution. (
‘In determining whether a reasonable trier of fact could have found
defendant guilty beyond a reasonable doubt, the appellate court “must view the
evidence in a light most favorable to respondent and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.â€â€™ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606
P.2d 738].)†(People v. Young (2005) 34 Cal.4th 1149, 1175.) In reviewing the sufficiency of the evidence,
“a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact. [Citation.]â€
(Id. at p. 1181.) We will reverse for insufficient evidence
only if ‘“‘“upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].â€â€™â€â€™â€
(People v. Manriquez (2005) 37
Cal.4th 547, 577.) This standard of
review applies to gang enhancement findings.
(People v. Garcia (2007) 153
Cal.App.4th 1499, 1508; People v.
Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
2. Background Facts
Detective
Lugo testified that Jaimez and Gonzalez were high level members of the Little
Valley gang. Detective Lugo testified
that the primary activities of Little Valley include “anything from graffiti,
tagging, to sales of narcotics to sales and transportation of weapons,
extortion, burglaries, grand thefts, robberies, assaults, physical assault,
assault using weapons, shootings, drive-bys, kidnappings, attempted murders,
murders, and anything that falls within that realm.â€
There is
substantial evidence to support the gang enhancement. According to Detective Lugo, it is important
to gang members that people in the community who are not gang members respect
and fear them. Detective Lugo testified,
“[T]hat way people will not come forward and help out . . ., will not be
witnesses to an incident, will not call in an incident, [and] will not
cooperate with police due to fear.â€
Witnesses that live within a gang’s territory often recant earlier
statements because they “fear for their lives and the lives of their loved ones.â€
The
prosecutor asked Detective Lugo to assume, hypothetically, facts closely
tracking the evidence concerning the false imprisonment of Reynoso and
dissuading her from reporting a crime.
Based on those facts, Detective Lugo opined that those crimes against
Reynoso would have been committed for the benefit of, at the direction of, or
in association with a criminal street gang.
Detective Lugo stated that the basis for his opinion was, “[T]he fear
and the intimidation [the gang] expect[s] to have within their gang turf and
territory. When a gang member runs,
approaches a citizen of the community, identifies himself who they are, who
they’re affiliated with, they expect they will cooperate due to the fear and
intimidation that they have established within the community. [¶] That means they expect of that
person, expect full cooperation . . . in order to elude capture from
police. [¶] He’s hoping, this individual is hoping to elude capture
by police due to the fact that this person will do what they are told because
that person, once he establishes himself as a member of that gang where the
citizen lives with him, he has the backing of all of the members of the gang
and possibly their family members.†The
following exchange then occurred: “[Prosecutor:] So the fact this individual
evokes or says that he is part of Little Valley, he’s utilizing the backing of
the gang, is that what you were saying? [¶] [Detective Lugo:] Yes. [¶] [Prosecutor:]
Okay. When you say ‘backing of
the gang,’ what do you mean? [¶]
That means that at any given time any gang member associated with that
particular gang can retaliate against that citizen if they don’t cooperate or
any of their family members.†Deputy
Lugo testified that the witness intimidation and false imprisonment of the
homeowner described in the hypothetical will also further, promote and assist
criminal conduct by the gang because “other gang members from that gang will
expect that they can also do the same things within that community as long as
they are associated with that particular gang. [¶] They will expect that the word gets out on
the street by the good citizenship of that community and they will know that
this gang is to be feared, it is to be obeyed at all costs.â€
Section 186.22,
subdivisions (b)(1) and (b)(4) provide for a sentence enhancement for any
person who is convicted of a felony “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any
.†A gang expert properly may testify
about gang affiliation and activity where such evidence is relevant to an issue
of motive or intent. (
1506, 1518; People v. Killebrew
(2002) 103 Cal.App.4th 644, 657 (Killebrew),
disapproved on another point in
1047.) A gang expert properly may
testify about “whether and how a crime was committed to benefit or promote a
gang.†(Killebrew, supra, 103
Cal.App.4th at p. 657.) Similarly, a
gang expert may testify about whether a defendant acted for the benefit of a
gang, even though the question is an ultimate factual issue in the case, if
such matters are beyond the jury’s common experience. (People
v. Valdez (1997) 58 Cal.App.4th 494, 506-509; Killebrew, supra, 103
Cal.App.4th at p. 651, citing Evid. Code, § 805 [“Otherwise admissible expert
opinion testimony which embraces the ultimate issue to be decided by the trier
of fact is admissibleâ€].) “‘Expert
opinion that particular criminal conduct benefited a gang’ . . . can
be sufficient to support the . . . gang enhancement. (People
v. Albillar [(2010)] 51 Cal.4th [47,] 63.)â€
(People v. Vang,
Detective
Lugo opined that the false imprisonment of Reynoso and dissuading her from
reporting a crime would have been committed for the benefit of, at the
direction of, or in association with a criminal street gang. Reynoso’s residence was within Little
Valley’s territory, and detective Lugo testified that Jaimez and Gonzalez were
high level members of the Little Valley gang.
Detective Lugo testified that in order for a gang to establish their
territory, it must commit crimes within that territory, creating an atmosphere
of fear and intimidation that dissuades wi
| Description | Defendant and appellant Ernie Gonzalez was convicted of murder (Pen. Code, § 187, subd. (a)[1]) and willful, deliberate and premeditated attempted murder (§§ 664 and 187, subdivision (a)). Defendant and appellant Angel Alez Jaimez was convicted of false imprisonment by violence (§ 236) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). On appeal, both defendants contend that the trial court erred in admitting expert testimony of prior shootings among members of their gang. In addition, Gonzalez contends that the trial court violated his right to confrontation under the Sixth Amendment by admitting hearsay evidence as a basis for the testimony of prosecution’s gang expert and erred by imposing an unauthorized sentence term of “15 years to life†on his conviction for attempted murder, and that the abstract of judgment should be amended to reflect correctly the jury’s true finding on the firearm use enhancements. Jaimez contends that there is not substantial evidence to support the jury’s true findings for the gang enhancements and that the trial court erred in failing to provide him with presentence conduct credit. We order that Gonzalez’s abstract of judgment be corrected by stating that he is sentenced on count 2 to a life term with a 15 year minimum eligible parole date, and the firearm use enhancements are imposed under section 12022.53, subdivision (d), and Jaimez’s abstract of judgment be corrected to provide that he is entitled to presentence conduct credit. We otherwise affirm the judgments. |
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