P. v.
Filed 9/11/12 P. v. Martinez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SERGIO MARTINEZ,
Defendant and Appellant.
G044885
(Super. Ct. No. 08ZF0027)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, William R. Froeberg, Judge. Affirmed as modified.
Doris
M. LeRoy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Gil
Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Sergio
Martinez was convicted of premeditated
murder, attempted premeditated murder, unlawfully possessing a firearm and
street terrorism. The jury also
found true several enhancement allegations, including the special circumstance
allegation appellant committed the murder to further the activities of a
criminal street gang. On appeal,
appellant contends his attorney was ineffective for failing to object to
certain evidence, and there is insufficient evidence to support the jury’s
findings on the gang charges. We reject
these contentions. Other than to correct
two undisputed sentencing errors, we affirm the judgment in all respects.
FACTS
In June 2006, appellant
lived in Stanton. His pregnant
girlfriend lived in Anaheim, and he often went there to see her. After visiting her on June 24, appellant had
a run-in with several neighborhood men, including Fausto Acevedo. During the encounter, tempers flared and
appellant pulled a gun on the men.
Although he squeezed the trigger, the gun malfunctioned and did not
fire. Appellant then left the area
without further incident.
Two days later,
appellant returned to see his girlfriend.
As he was leaving her apartment, he met up with Juan Castillo, aka
“Poly.†They walked to a stairwell,
where Castillo retrieved a gun and handed it to appellant. Appellant then walked out to the street,
where Acevedo was drinking beer with others, including Jorge Flores and Jose
Espinoza. Appellant conversed briefly
with Espinoza, and then the two walked off in different directions.
About 10 minutes later,
Espinoza returned briefly before departing for a second time. Shortly after that, appellant returned, and
Acevedo asked him what happened.
Appellant didn’t answer the question; instead, he asked Acevedo what
barrio he was from. Acevedo replied
“none†and told appellant he didn’t want any trouble. Nonetheless, appellant pulled his gun and
pointed it at Acevedo.
Flores
threw a beer can at appellant and tried to take his gun. In the process, the gun discharged, but no
one was hit, and appellant retained the weapon.
Flores then moved toward appellant, as did Acevedo. While backing away from them, appellant fired
several more shots. One struck Acevedo
in the hand and one struck Flores in the chest, killing him.
In the wake of the
shooting, 13 year-old Deisi Garcia told police she witnessed the events from
her bedroom window. She said she saw
appellant, whom she knew as “Clumsy,†go up to his girlfriend’s apartment
before the shooting. Then he met up with
“Poly†(i.e., Castillo), who handed appellant a gun. Garcia told police the gun transfer occurred
in an area where “gang member types†hang out and said Poly was a gang
member. However, she did not know what
gang he was in. She saw appellant, with
the gun, approach Acevedo and Flores in the street. She said the victims were not armed, and
appellant shot them after they tried to swipe his gun away. Garcia also told the police she had seen the
incident that occurred two days earlier involving appellant and Acevedo, and to
her, it appeared as though appellant was looking to get revenge for that
incident when he confronted the victims before the shooting.
Gang expert Brandt House
testified that, at the time of the shooting, appellant was an active member of
a gang called Hawaiian Gardens. House
opined the shooting benefited and furthered the activities of Hawaiian Gardens
by spreading fear in the community and sending a message the gang was not to be
trifled with.
Testifying on his own
behalf, appellant claimed he acted in self-defense. He said he shot Flores because he was coming
at him with a machete, and he shot Acevedo because he had something shiny in
his hand and was trying to trip him up.
Appellant admitted he was a member of Hawaiian Gardens in the 1990’s and
early 2000’s, but he claimed he was no longer in the gang at the time of the
shooting. Describing the shooting as a
“domestic†incident, he said it had nothing to do with gang activity.
The prosecution did not
see it that way. In addition to charging
appellant with premeditated murder, attempted premeditated murder and
possessing a firearm as a felon, it also charged him with active participation
in a criminal street gang, aka street terrorism. (Pen. Code, §§ 187, subd. (a), 664, subd.
(a), 12021, subd. (a), 186.22, subd. (a).)
also alleged that, in committing these crimes, appellant furthered the
activities of his gang, benefited his gang, personally discharged a firearm and
caused great bodily injury. (§§190.2,
subd. (a)(22), 186.22, subd. (b), 12022.53, subds. (c), (d), 12022.7, subd.
(a).) The jury convicted on all counts
and found all of the allegations true.
After finding appellant had also suffered a prior serious felony
conviction, the trial court sentenced him to life in prison without the
possibility of parole.
I
At
trial, the parties stipulated Hawaiian Gardens is a criminal street gang. However, they disputed whether appellant was
a Hawaiian Gardens member at the time of the shooting and whether the shooting
benefited and furthered the activities of that gang. In formulating his opinion on those issues,
gang expert House relied on hearsay evidence from a variety of sources. Appellant contends his attorney was
ineffective for failing to object to some of that evidence, failing to request
a limiting instruction as to its permissible use, and failing to challenge
various other aspects of House’s testimony.
We do not believe these failings deprived appellant of his right to
effective assistance of counsel.
“To prevail on a claim of
defendant must show
both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense.
[Citations.] Counsel’s
performance was deficient if the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.]
Prejudice exists where there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.†(People
v. Benavides (2005) 35 Cal.4th 69, 92-93.)
With
this standard in mind, we now examine House’s expert testimony in detail to
determine whether defense counsel was ineffective for failing to challenge it
more vigorously. House testified he is a
detective in the gang unit of the Los Angeles Sheriff’s Department. He said Hawaiian Gardens is a traditional
Hispanic street gang that engages “in all manner of
murder.†Although the gang originated in
the area of Hawaiian Gardens, its members commit crimes all over Orange
County. They often sport tattoos to show
their pride in, and allegiance to, the gang.
House explained that once a person joins a gang, they are typically
considered a member for life.
As the basis for his
opinion that appellant was an active participant in Hawaiian Gardens at the
time of the shooting, House relied on several sources of information. First, he considered gang records and field
interview cards that are kept on file at the sheriff’s department. Those sources establish that when contacted
by law enforcement personnel over the years, appellant has consistently
admitted he is a member of Hawaiian Gardens and his gang moniker is “Clumsy.†Although House did not specify when each of
those police contacts occurred, he said they spanned from 1991, when appellant
was 14 years old, to 2006.
House
also considered the fact appellant has numerous tattoos displaying his
allegiance to Hawaiian Gardens and the Mexican Mafia, including one on his
face. House said if a person was trying
to get out of a gang, they might very well get rid of their gang tattoos. And if they did not get rid of them, that
would indicate to House that they were still proud of their gang.
In House’s opinion, the
nature of the charged offenses was another sign appellant was an active gang
member. House explained, “Any violent
crime that a gang member commits is going to elevate his status within the gang
as well as the status of the gang itself.
. . . That’s why the crime itself is an important indicator†of
appellant’s gang status.
House also considered
the circumstances of the shooting, in that Castillo gave the gun to appellant
right before he confronted the victims.
House said it is common for gang affiliates to supply guns to gang
members for the purpose of facilitating criminal activity. In fact, Castillo’s role in this incident was
enough to convince House that Castillo was affiliated with the Hawaiian Gardens
gang quite apart from the testimony of Deisi Garcia. House said that while gang affiliates
sometimes perpetrate crimes themselves, their role is usually limited to
holding onto contraband, such as guns, for gang members. House explained, “Gang members will have an
affiliate hold onto a firearm for them because they know they’re less likely to
be stopped with it than they are.â€
In opining on
appellant’s gang status, House also relied on the run-in he had with Acevedo
and his companions two days before the shooting. Given that appellant was confronted on that
occasion, House believed it would be important for him to retaliate in some
manner in order to save face. By
committing a violent offense, appellant would not only restore respect for himself,
but also preserve and enhance the reputation of his gang.
In addition to the
foregoing evidence, House considered the police reports that were generated in
connection with this case. Those reports
contain statements that were attributed to appellant by individuals who were not
identified at trial. One of the
statements attributed to appellant was, “I’m Clumsy from Hawaiian
Gardens.†According to the police
reports, appellant was heard to have made this statement when he confronted the
victims in this case, as well as on other occasions. Speaking to the significance of the
statement, House testified that for appellant to “claim that in public only
strengthens my opinion even more about his gang membership.â€
Defense counsel did not
object to this testimony. However, House
was then asked about a second statement that was attributed to appellant in the
police reports. Allegedly, when he
confronted the victims before the shooting, appellant told them, “This is my
block now.†When the prosecutor asked
House if he had read that statement in the police reports, defense counsel
objected on the basis the prosecutor was “relying on facts that aren’t in
evidence.†The court sustained the
objection, ruling “[t]here is a lack of foundation, hearsay.â€
After that, however,
without identifying which statement she was referring to, the prosecutor asked
House how the “statements†in the police reports supported his opinion
appellant was a gang member at the time of the shooting. House replied that when gang members “talk to
citizens out in the street [they] will talk to them a certain way, in a
challenging way. If they’re not active
or they don’t want any part of the gang or [to put] in work for the gang,
they’re not going to be doing that.â€
The prosecutor then
asked House whether, hypothetically speaking, the “underlying conductâ€
described in the police reports was such as to benefit, promote and further the
activities of Hawaiian Gardens. House
said it was because the commission of a violent crime would elevate the status
of Hawaiian Gardens and spread fear in the community. He said that once word of the shooting got
out, it would dissuade people from reporting the gang’s criminal activity in
the future.
Appellant’s argument
centers on the hearsay statements attributed to him in the police reports,
i.e., “I’m Clumsy from Hawaiian Gardens†and “[t]his is my block now.â€
recognizes that an expert may properly rely on hearsay evidence in forming the
basis of his opinions. However, he
claims the statements attributed to him in the police reports were so
prejudicial, that had his attorney objected to them, the trial court would have
been required to exclude them entirely.
He also contends that, even if the statements were properly admitted as
basis evidence for House’s opinions, his attorney should have requested a
limiting instruction as to their permissible use. Appellant argues that absent such an
instruction the jury was improperly allowed to consider the statements for
their substantive truth, in violation of his confrontation rights.
As appellant
acknowledges, it is permissible for an expert witness to base his opinion on
out-of-court statements that would otherwise be inadmissible under the hearsay
rule. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) In that situation, the statements are not
being admitted for their substantive truth, but rather as foundational evidence
for the expert’s opinions, and therefore their admission does not violate the
confrontation clause. (Williams v. Illinois (2012) __ U.S. __, __ [132 S.Ct. 2221, 2228];
Thomas (2005) 130 Cal.App.4th 1202,
1210.)
“
trial court, however, ‘has considerable discretion to control the form in which
the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.]â€
(People v. Gardeley, supra, 14
Cal.4th at p. 619.) Under Evidence Code
section 352, “the trial court may exclude
from the expert’s testimony ‘any hearsay matter whose irrelevance,
unreliability, or potential for prejudice outweighs its proper probative
value.’†(People v. Pollock (2004) 32 Cal.4th 1153, 1172, quoting
919; see also People v. Coleman (1985) 38 Cal.3d 69,
92-93.)
But we must remember that
the decision whether or not to invoke Evidence Code section 352 in this context
rests in the sound discretion of the trial court. The decision to allow gang evidence as the
basis for an expert’s opinion should not be disturbed under that section “unless
the trial court’s decision exceeds the bounds of reason. [Citation.]â€
(People v. Valdez (1997) 58 Cal.App.4th 494, 511.)
Contrary
to appellant’s claim, the statements attributed to him in the police reports
were not so prejudicial as to require their exclusion from the trial. In so arguing, appellant fails to recognize
his preshooting statements about being from Hawaiian Gardens and claiming the
block where the shooting occurred where probative of his gang status and his
motive for the shooting. As House
explained, it is highly unlikely a person would mention a gang name and
challenge the victims in such a fashion if he were not part of that gang. Thus, a
House’s opinions, the challenged statements were relevant to his credibility
and the weight to be afforded his opinions.
(People v. Valdez, supra, 58
Cal.App.4th at p. 511.)
Yet,
in and of themselves, the statements did not directly implicate appellant in
any particular criminal activity, either in this case or any other
situation. In fact, compared to the
violent nature of the charges alleged against appellant in this case, the
statements were relatively tame. This
quite obviously lessened the danger they would unduly prejudice the jurors or
cause them to be confused about the issues.
(People v. Valdez, supra, 58
Cal.App.4th at p. 511.)
Appellant
asserts the statements were too unreliable to be admitted into evidence, even
as basis evidence, because the identity of the people who reported them to the
police was never disclosed to the jury.
However, that is an issue pertaining to weight rather than
admissibility. House’s opinions were
subjected to full cross-examination, and the jurors were instructed that it was
up to them to decide whether the information on which he relied was true and
accurate. The jurors were also told they
were free to disregard House’s opinions if they found them to be unbelievable,
unreasonable or unsupported by the evidence.
The jurors were certainly capable of discounting the challenged
statements if they found them to be an unconvincing basis for House’s
opinions. Therefore, even if the
statements had been challenged as being unreliable or unduly prejudicial, it
would not have been an abuse of discretion for the court to admit them as basis
evidence.
The problem is, the jury
was not instructed to consider the statements solely for that purpose. It is well “recognized that most often hearsay problems
will be cured by an instruction that matters admitted through an expert go only
to the basis of his opinion and should not be considered for their truth.†(People
v. Valdez, supra, 58 Cal.App.4th at p. 511.) However, in this case, defense counsel did
not ask the court for such an instruction.
Therefore, there was nothing stopping the jury from considering the
challenged statements for their substantive truth. And to make matters worse, the prosecutor
alluded to one of the statements in arguing appellant was guilty of the charged
offenses. Referring to appellant in
closing argument, the prosecutor stated, “This is a gang member who arms
himself, gets his gun, walks over, is going to confront these guys because
to view him as anything other than ‘I’m in charge now.’†(Italics added.)
As
we have explained, the trial court actually sustained defense counsel’s
objection when he challenged the admission of appellant’s alleged statement,
“This is my block now.†While that
statement would have been admissible as basis evidence for House’s expert
opinions, it was not admissible as substantive evidence of appellant’s
guilt. Therefore, defense counsel should
have requested an instruction alerting the jury to this fact. Even though the jury was told it was free to
disregard House’s opinions if it found they were unsupported by the evidence,
it was never informed of the distinction between considering this in evaluating
the expert’s opinion and considering this in evaluating the evidence of
guilt. (See generally
p. __ [132 S.Ct. at p. 2236] [emphasizing the need for “careful jury
instructions†when evidence is admitted solely as the basis for an expert’s
opinion and not for its substantive truth].)
Still,
we do not think it is reasonably probable appellant would have obtained a more
favorable result had the jury been properly instructed to consider the
challenged statements only as basis evidence and not for their substantive
truth. Appellant argues the prosecutor
improperly incorporated the statements into her hypothetical questions to House
about whether the shooting benefited and furthered the activities of Hawaiian
Gardens. However, in posing those questions,
the prosecutor referred to the underlying
conduct reflected in the police reports, not appellant’s statements. And of course that conduct was shown by
direct evidence at the trial. The
hypothetical questions were not improper.
What’s more, even without
the challenged statements, there was still a plethora of evidence to support
House’s opinions. Indeed, House
testified appellant’s numerous tattoos and prior police contacts, as well as
the nature and circumstances of the shooting, all supported his conclusion
appellant was an active member of Hawaiian Gardens and that the shooting was
gang related. One of the circumstances
House found significant is that appellant obtained the murder weapon from
Castillo – identified as a gang member by Deisi Garcia – shortly before the
shooting. House opined that Castillo’s
conduct in supplying the gun to appellant showed that Castillo was an affiliate
of Hawaiian Gardens who was helping appellant commit a gang crime.
Appellant
argues his attorney should have objected to House’s opinion in that regard
because it lacked foundation. But House testified it is common for gangs to enlist the
aid of affiliates for the purpose of holding contraband such as guns and
drugs. House explained this is a
commonly used counterintelligence practice designed to throw off law
enforcement and allow gang members to perpetrate criminal activity without
detection. Since Castillo’s conduct in
handing the gun to appellant before the shooting fit the description of gang
affiliate activity, there was an adequate basis for House’s opinion about
Castillo’s affiliate status and the significance of his behavior to this
case. (See generally
932, 944-949 [experts may properly rely on a variety of sources in formulating
their opinions about whether the defendant’s conduct is consistent with the
culture and habits of criminal street gangs].)
House’s opinion about
Castillo’s affiliate status was consistent with information that was supplied
to the police by percipient witness Deisi Garcia, who recognized Castillo as a
gang member.
title="">[3] Garcia lived
in the area where the shooting occurred and had seen Castillo and appellant on
prior occasions. Not only did she
identify Castillo as a gang member, she also knew appellant by his gang
moniker, Clumsy. The information she
provided in this regard firmly corroborated the foundational aspect of House’s
expert opinions.
All things considered,
we do not believe defense counsel was ineffective for failing to challenge
House’s expert opinions more vigorously.
While defense counsel was remiss in one regard, in that he should have
requested a limiting instruction to help ensure the jury did not consider
appellant’s out-of-court statements for their substantive truth, that failing
could not have been material in light of all of the other evidence that was
presented in the case. No prejudice has
been shown.
II
Appellant also raises
two arguments regarding the sufficiency of the evidence. Based on the assumption House’s opinions were
improperly admitted, appellant first contends there is insufficient evidence to
support the jury’s findings he was a member of Hawaiian Gardens at the time of
the shooting and he intended to benefit the gang in committing the alleged
offenses. (§§ 186.22, subds. (a),
(b), 190.2, subd. (a)(22).) However, as
we have explained, House was properly allowed to rely on hearsay in forming his
opinions, and his testimony provided substantial evidence from which the jury
could find the elements of the gang charges had been proven beyond a reasonable
doubt.
Moreover,
in addition to the expert opinion testimony, the evidence also established
appellant was a self-admitted member of Hawaiian Gardens who had several
Hawaiian Gardens tattoos, he had a confrontation with the victims two days
before the shooting, and he obtained the murder weapon from a gang cohort
shortly before the shooting occurred.
Considering all of the evidence in the light most favorable to the
prosecution, there is substantial evidence to support the jury’s findings
appellant was a member of Hawaiian Gardens at the time of the shooting and
intended to benefit his gang in carrying out the charged offenses.
Focusing more precisely
on his conviction for street terrorism,
appellant also argues there is insufficient evidence he “willfully promote[d],
further[ed], or assist[ed] in any felonious criminal conduct by members of
[his] gang[.]†(§ 186.22, subd.
(a).) Appellant interprets the quoted
language as requiring proof he associated with other gang members in carrying
out the charged offenses. However, the
statute has been found applicable even when the defendant acts alone. (See, e.g., People v. Sanchez (2009) 179 Cal.App.4th 1297, 1305-1308 and cases
cited therein.)
name="_ftnref4" title="">[4]
In
any event, the record shows appellant obtained the murder weapon from Castillo,
whom witness Deisi Garcia recognized as a gang member. This indicates appellant was acting in
concert with other gang members in carrying out the alleged offenses. Therefore, even if we accepted appellant’s
restrictive interpretation of the gang statute, we would reject his challenge
to the sufficiency of the evidence to support his conviction for street
terrorism.
During her interview
with the police, witness Garcia was asked how she knew appellant’s nickname was
Clumsy. She said she learned it from a
seventh-grade boy in the neighborhood.
The boy also told her he had once seen appellant trying to throw his
girlfriend from the stairs. Appellant claims
this statement should have been excluded because it amounted to irrelevant and
inflammatory character evidence. But
because he did not object to the statement at trial, he has waived his right to
challenge it on appeal. (Evid. Code,
§ 353; People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1052.) Alternatively, appellant
argues his attorney was ineffective for failing to object to the
statement. However, the statement was
not offered or used to show appellant’s propensity for violence. Rather, it came in inadvertently while Garcia
was explaining how she knew appellant’s nickname. The fleeting reference to a single bad act
that occurred under unknown circumstances at some unknown time is insufficient
to undermine our confidence in the verdict.
Thus, defense counsel’s failure to object to the reference is not
grounds for reversal. (
391 [a defendant claiming ineffective assistance of counsel must show deficient
performance and resulting prejudice].)
Accordingly, we discern no basis for disturbing appellant’s
convictions. Although appellant argues
the cumulative effect of the trial court’s errors deprived him of a fair trial,
we do not believe the alleged errors, whether considered individually or
combined, rendered his trial unfair.
IV
Lastly, the parties
agree that two sentencing errors appear in the record. First, because the trial court imposed an
enhancement of 25 years to life on the attempted murder count based on
appellant’s personal discharge of a firearm causing great bodily injury under
section 12022.53, subdivision (d), the court should not have imposed an
additional three-year enhancement for inflicting great bodily injury under
section 12022.7, subdivision (a).
(§ 12022.53, subd. (f).) Second,
the abstract of judgment identifies appellant’s conviction for street terrorism
as constituting a violent offense, but street terrorism is not defined as such
an offense. (§ 667.5, subd. (c).) We will modify the judgment to correct these
errors.
DISPOSITION
The judgment is modified
to stay the three-year enhancement on count 2 for great bodily injury under
section 12022.7, subdivision (a) and to reflect appellant’s conviction for
street terrorism in count 5 was not for a violent offense. The clerk of the trial court is directed to
prepare a new abstract of judgment reflecting these modifications and send a
certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
BEDSWORTH,
J.
I CONCUR:
O’LEARY, P. J.
ARONSON, J., Concurring:
I concur, but write separately because I do
not agree with the majority’s analysis of Martinez’s evidentiary challenge on
the active participation count (Pen. Code, § 186.22, subd. (a)) and the
allegation Martinez committed the crimes for the benefit of his gang
(§ 186.22, subd. (b)(1)(C)).
In rejecting Martinez’s claim there was no
substantial evidence showing he was an active gang participant at the time of
the shooting, the majority relies on gang expert Brandt House’s testimony that
(1) Martinez admitted in the past he belonged to the Hawaiian Gardens gang; (2)
he had several Hawaiian Garden tattoos; (3) the crime was violent; (4) Martinez
had confronted the victims two days before the shooting; and (5) had
obtained the murder weapon from a gang affiliate just before the shooting took
place. I do not agree with the
majority’s conclusion these factors constitute substantial evidence of
Martinez’s current active membership in his former gang.
Martinez’s past admissions he belonged to
Hawaiian Gardens sheds no light on whether he was nominally or actively
involved with his gang when the shooting occurred. Martinez’s gang tattoos certainly support the
inference he once belonged to a gang, but do not show he was a current or
active member because House conceded he had no “idea when these tattoos were
put on [Martinez’s] body.†Also, the
fact that violent crimes enhance a gang’s and gang member’s reputation does not
mean, of course, that every perpetrator of every violent crime is a gang
member; other evidence must establish that fact.
The majority cites House’s conclusion that
Martinez’s confrontation with the victims two days earlier prompted Martinez to
respond violently. As the majority
explained House’s testimony, “[I]t would be important for [Martinez] to
retaliate in some manner in order to save face.†(Maj. opn. ante, at p. 6.) Of course a
gang-related basis for this motive exists only if House
member, but the motive to retaliate was offered to prove that very assumption.
Finally, House referred to Castillo’s
delivery of the gun to Martinez, and “based on that act aloneâ€
active member of Hawaiian Gardens, concluded Castillo must have been Martinez’s
gang affiliate because Castillo handed the gun to him. Next, House justified his premise that
Martinez must have been an active
member of Hawaiian Gardens and his crimes were gang related because Martinez
received the gun from a gang affiliate, namely Castillo. Put another way, House deduced Castillo was
Martinez’s gang affiliate based on the assumption Martinez was an active gang
participant intent on committing a gang-related offense. House then completes the circle and reaches
his ultimate conclusion that Martinez was an active gang participant and his
crimes were gang related because Castillo was an affiliate of Martinez’s
gang. This circular reasoning will not
do.
Delivery of the gun to Martinez tells us
nothing about Castillo’s gang status unless it is assumed that either Castillo
or Martinez are active gang participants.
But House apparently knew nothing about Castillo, conceding he had never
heard of him, and his assumptions about Martinez were based on the
insubstantial factors discussed above that fail to show Martinez was an active
participant in his gang’s affairs when the crimes occurred.
name="_ftnref5" title="">[5] All this falls short of establishing substantial
evidence, a showing necessary on appeal to affirm a conviction and defined as
“‘“‘evidence which is reasonable, credible, and of sold value — such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’†. . .’†(People
v. Elliot (2005) 37 Cal.4th 453, 466.)
As Martinez’s appellate counsel observes, “This circular reasoning
amounts to no more than speculation without evidence.†In literary terms, House’s explanation
resembled the Cheshire Cat’s circular reasoning in Alice in Wonderland. When
the cat opined, “We’re all mad here. I’m
mad. You’re mad,†Alice objected, “How
do you know I’m mad?†“You must be,â€
rejoined the cat with a mad grin, “or you wouldn’t have come here.†The narrator informs the reader, “Alice
didn’t think that proved it at all,†and the same is true here. The simple fact that Castillo was at the
scene to hand a gun to Martinez did not prove he or Martinez were gang
members. That, however, was the essence
of House’s testimony.
True, House also considered the police
reports in this case, including statements from witnesses that Martinez had
announced on previous occasions and at the time of the shooting, “‘I’m Clumsy
from Hawaiian Gardens’†and “‘[t]his is my block now.’†(Maj. opn. ante, p. 7.) These reports
include witness Deisi Garcia’s pretrial identification of Castillo as a gang
member and the person who gave Martinez the gun. As the majority points out, Martinez’s trial
attorney could have asked the court to instruct the jury not to consider these
statements for their truth. But his
failure to do so does not compel reversal on grounds he received
constitutionally inadequate assistance from his trial attorney.
In People
v. Gardeley (1996) 14 Cal.4th 605 (Gardeley),
the California Supreme Court found nothing improper in allowing a gang expert
to opine the defendant
committed a gang-related
crime based on reliable but inadmissible hearsay presented to the jury as the
basis for the expert’s opinion and not for the truth of the matter
asserted. (Id. at pp. 618-619.) This
rule was recently questioned in People v.
Hill (2011) 191 Cal.App.4th 1104 (Hill),
based on the groundbreaking decision in Crawford
v. Washington (2004) 541 U.S. 36, which prohibited testimonial hearsay
without a prior opportunity to cross-examine the declarant. (Id.
at p. 68.) Hill found it implausible that a jury could disregard the truth
asserted in a hearsay statement but somehow independently weigh the value of
the expert opinion based on the hearsay statement. Hill
cited with approval People v. Goldstein
(2005) 6 N.Y.3d 119, which aptly illustrates the point. “We do not see how the jury could use the
statements . . . to evaluate [the expert’s] opinion without accepting as a
premise either that the statements were true or that they were false. Since the prosecution’s goal was to buttress
[the expert’s] opinion, the prosecution obviously wanted and expected the jury
to take the statements as true. . . .
The distinction between a statement offered for truth and a statement
offered to shed light on an expert’s opinion is not meaningful in this
context. [Citation.]†(Id.
at pp. 127-128.)
I agree with Hill that we often ask the jury to perform the metaphysically
impossible task of disregarding the truth of
as support for an expert’s opinion, when the only way to do so is to consider
whether the statement was true. I also
agree with Hill that appellate courts
are bound by Gardeley and other
California Supreme Court authority holding that the use of hearsay statements
as the basis of an expert’s opinion does not violate the confrontation clause
or the hearsay rule. The jury, however,
could not have considered the expert’s basis evidence for the truth of matter
asserted if Martinez had received a limiting instruction. Consequently, the expert’s basis evidence
upon which the majority relies cannot support Martinez’s conviction on the gang
participation count or the gang enhancement.
As Gardeley observes, “‘the
law does not accord to the expert’s opinion the same degree of credence
or integrity as it does
the data underlying the opinion. Like a
house built on sand, the expert’s opinion is no better than the facts on which
it is based.’†(Gardeley, supra, 14 Cal.4th at p. 618.)
Other evidence supports the jury’s verdict,
however. Because the pretrial police
interview of Deisi Garcia was admitted into evidence, the jury was entitled to
consider her statements for their truth.
Garcia knew Martinez as “Clumsy†and that he and Castillo were gang members
who acted in concert when Castillo handed a gun to Martinez just before the
shooting. The jury reasonably could
conclude Martinez was an active participant in his gang because he continued to
use his gang moniker, acted in tandem with another gang member, and committed
crimes the expert testified were the primary activities of Martinez’s
gang. The jury therefore could reason
that only an active participant would act in this fashion, and did so to
benefit his gang. Coupled with the
expert’s opinion on the gang subculture, this constitutes substantial evidence
to support the jury’s verdicts on the gang charges. I therefore agree with the majority to affirm
the judgment.
ARONSON,
J.
name="_ftn1" title=""> [1] Unless
noted otherwise, all further statutory references are to the Penal Code.
name="_ftn2" title=""> [2] As we have explained, defense counsel did not object
to the first statement. And although the
court sustained defense counsel’s objection to the second statement, the
prosecutor referenced it in a question right before asking House if the
“statements†in the police reports supported his opinion appellant was an
active gang member. Moreover, as we
explain below, the prosecutor referenced the second statement again in her
closing argument. Therefore, we will
consider both statements in our analysis.
