P. v. Mondragon

Filed 8/18/08 P. v. Mondragon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Giancarlo Mondragon of first degree murder in the shooting death of Francisco Martinez. The jury found true the special circumstance allegation that Mondragon was an active member of the 18th Street criminal street gang and committed the murder for the benefit of this gang (Pen. Code,[1]  190.2, subd. (a)(22)), and that he personally discharged a firearm and proximately caused great bodily injury and death ( 12022.53, subd. (d)). The trial court imposed a sentence of life without the possibility of parole for the murder, plus a term of 25 years to life for the firearm enhancement.

Mondragon contends the trial court committed reversible error by permitting the Peoples gang expert to testify generally that gang members intimidate witnesses, and he argues the courts imposition of a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d) violates principles of double jeopardy. We find these contentions meritless and affirm the judgment.

I

FACTS

Francisco Martinez, a self-admitted member of the 18th Street criminal street gang, was shot to death at approximately 9:00 p.m. on August 23, 2003 in front of an apartment complex on Onondaga Street in Anaheim.

Minutes before the shooting, Juanita Jimenez, who had been inside the apartment complex during a visit with her mother, was standing in the street near her car and in the process of getting her daughter into a childs car seat when her brother came outside of the apartment complex and said, There is some guys coming out from the back. I think its 18th Street. Juanita understood her brother to mean that some gang members were coming out there. Jimenez saw four or five young men walk out the gate to the complex, and she decided to get into her car and drive away. As she was in the process of turning her car around, two men, Mondragon and Martinez, ran around the front of her car and forced her to stop. Jimenez testified that Mondragon was chasing Martinez. When they reached the drivers side of Jimenezs car, she heard a gun shot and Mondragon ran off in the direction of a waiting car. Within seconds of the gun shot, another young man ran up to the fallen Martinez. This person punched Martinezs stomach and then ran after Mondragon. Although Jimenez recognized Mondragon, she did not initially reveal his identity as the shooter to the police. At trial, she explained that she withheld this information because she was afraid Mondragon would come back and do something to [her].

Oswaldo Hernandez saw Mondragon shoot Martinez. He testified that before he shot Martinez, Mondragon was standing with a group of people in front of the apartment complex. They were throwing bottles at four men standing inside the complexs fence. Mondragon pointed a gun at him, but then chased Martinez and shot him. Hernandez testified that he was reluctant to cooperate with police because he lived in the area and was afraid for [his] life. Nevertheless, Hernandez testified at trial that he was sure Mondragon shot Martinez, stating, He made eye contact when he put the gun on me. I never forget the face.

Frank Velasquez, a member of the Folks criminal street gang, ran to Jimenezs car. He helped Jimenez load Martinez into her car so that she could drive him to the emergency room. Although Velasquez initially told the investigating officers that he saw Mondragon at the scene and gave descriptions of several other people involved in the shooting and their gang nicknames or monikers, at trial he testified that he had not seen Mondragon and stated that he had only heard from other people that Mondragon was involved in the incident. He also denied giving the police any information about other suspects or their gang monikers, and he denied that he had seen anything or knew anyone involved. However, on cross-examination, Velazquez testified that a rat is anyone who gives information to the police, and he explained that rats get beaten or killed.

An autopsy revealed that Martinez died from exsanguination due to a gun shot wound. A single bullet entered his back and exited through his abdomen. However, in addition to the bullet wound, emergency room personnel discovered and removed a knife from Martinezs stomach.

The Peoples gang expert, Charles Sullivan, testified about various aspects of Hispanic criminal street gang culture, structure, and activities. He stated that Hispanic criminal street gangs generally claim a specific territory or turf, which they defend against rival gangs, and he explained the role of violence, respect, and retaliation in gang culture. According to Sullivan, individual members gain status and respect by committing violent crimes, and the commission of violent crimes by individual members also serves to enhance the reputation of the gang as a whole. Members are proud of their gang status and they will claim their gang by verbally acknowledging their membership, backing-up or supporting other members during turf battles, getting tattoos of the gangs name or its symbol, and by making or obtaining various types of weaponry. In Sullivans experience, if an individual gang member possesses a gun all other gang members in the vicinity will know it. Further, the presence of a rival gang member on the gangs turf constitutes an act of disrespect, which causes the disrespected gang to retaliate, usually by shooting the rival.

According to Sullivan, the 18th Street gang originated in Los Angeles County during the 1960s. Over the years, the gang has grown into a large organization with members throughout California and Mexico. As of August 2003, there were approximately 40 members of the 18th Street gang in Anaheim. The primary activity of this gang is the commission of various crimes, including robbery, homicide, weapons possession and narcotics sales.

Sullivan testified that Mondragon is a self-admitted member and active participant in the 18th Street gang and that his gang moniker is Stranger. He further observed that at the time of trial, Mondragon had his gang moniker tattooed on the back of his neck, pictures of the Virgin Mary, Jesus Christ, and a heart tattooed on his right forearm, and the Roman Numerals XV and the numeral 3 tattooed on his left hand. Sullivan further testified that police officers seized several items with the name 18th Street or the Roman Numeral for 18 from Mondragons home pursuant to a search warrant.

Sullivan identified Martinez as a member of the Folks criminal street gang, and further testified that the Folks and 18th Street gangs are rivals in Anaheim. The Folks gang claims a specific area of Anaheim, including the part of Onondaga Avenue where the shooting occurred. Sullivan opined that Martinezs death, both the shooting and knife wound, were gang-related crimes that occurred during a turf war between rival gangs. He further stated that commission of these violent crimes benefitted the gang by enhancing its reputation for violence.

Mondragon gave a video-taped statement to police following his arrest, which was played for the jury at trial. He denied membership in the 18th Street gang, although he acknowledged his gang moniker, Stranger, and admitted hanging out with 18th Street gang members. He also identified himself in several photographs with other 18th Street gang members and admitted that in these photographs he could be seen throwing the 18th Street gang hand sign. However, Mondragon told the investigating officers that he did not know any of the other people in these photographs. When asked about the incident on Onondaga Street, Mondragon initially replied, I dont know nothing . . . I dont even know why Im arrested. He also denied even being in the area for two or three months before the shooting. He told the police that the eyewitnesses identified him as the shooter because they disliked him after he was unfaithful to his girlfriend. Eventually, Mondragon admitted being in the area when the shooting occurred. However, he claimed that he had just seen other people running and ran because he was scared. He also said that he had heard shots, but he denied possessing or firing a gun and denied chasing anyone. At one point, Mondragon claimed that someone had been shooting at him, although he could not identify the shooter.

II

DISCUSSION

Evidence of Witness Intimidation

On redirect examination, the prosecutor asked Sullivan if he had ever contacted witnesses in gang-related cases. Sullivan testified that he had done so, including witnesses to violent crimes. The prosecutor asked, Have you noticed a particular demeanor of witnesses to gang crimes? Defense counsel objected on grounds the question called for character evidence. The court allowed the prosecutor to rephrase the question, and he then asked, Have you ever noticed that witnesses to gang crimes are reluctant to give you information? Again, defense counsel objected, this time on grounds the question called for a conclusion and speculation and that its not a question for an expert in this case. The court overruled the objection, stating, In terms of his investigative experience investigating gang crimes hes mentioned he had interviewed witnesses and victims, and I think that is a sufficient basis upon which to draw some general experience with regard to the question that [the prosecutor] has asked in terms of their cooperation with police, which wasnt necessarily his questions, but in the same vein.

During a subsequent sidebar discussion, the court disagreed with defense counsels assertion that the prosecutors question called for character evidence, and was similar to child abuse accommodation syndrome where the only reason its offered is to give the jury insight from which they can make judgments in dealing with the things that are submitted to them such as the witnesss conduct and reactions to certain circumstances. The court determined that the question was not specific but a general question included within Sullivans expertise. Over defense counsels continued objection, the prosecutor asked, based on Sullivans experience, if he had ever noticed anything about whether or not [witnesses to serious crimes] are forthcoming with giving information? [] [] Reluctant to give any information based on the consequences.

After a few additional questions, objections, and rulings, which were followed by the courts admonition to the jury that they were not to speculate as to what Sullivans answers might have been, Sullivan was permitted to testify that based on his experience investigating gang cases witnesses are reluctant to give any information based on the consequences[,] which are physical assaults and death. Sullivan explained, The gang members have driven by the house of my witnesses, they have sat in front of the house of my witnesses, they followed my witnesses and intimidated my witnesses.

Mondragon argues the trial court erroneously allowed the prosecutions gang expert to explain away the many inconsistencies in Jimenez and Hernandez testimony, which then served to corroborate their testimony and bolster their character in the eyes of the jury. He contends the courts ruling amounts to an abuse of discretion because the court permitted the expert to testify to matters outside the scope of permissible gang expert testimony. We disagree.

As the California Supreme Court has stated, In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citation.] The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. [Citations.] (People v. Gonzalez (2006) 38 Cal.4th 932, 944 (Gonzalez) .) Trial courts exercise broad discretion when determining both the admissibility of gang evidence and the gang experts qualifications to testify, and an appellate court will not reverse the courts exercise of its discretion unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citations.] (People v. Ochoa (2001) 26 Cal.4th 398, 437.)

Defense counsel objected to the prosecutors line of questioning on grounds it called for improper character evidence, a conclusion, and speculation. The trial court overruled counsels objection on these grounds and we agree with the courts ruling. Sullivans testimony was not specific and generally described his experience with gangs when it comes to witness intimidation. As the Gonzalez court observed, Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury. (People v. Gonzalez, supra, 38 Cal.4th at p. 945.) There is no logical reason to limit such testimony to gang members testifying against other gang members. The customs and practices of criminal street gangs are beyond the average persons understanding and Sullivans expert testimony on the topic was relevant and helpful. Moreover, Sullivans testimony that gangs intimidate witnesses was within the bounds of proper expert testimony, not improper character evidence, conclusion, or speculation.

Defense counsel also contested the relevance of evidence regarding gang intimidation of witnesses. Relevant evidence is generally characterized as any evidence that has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) Here, two witnesses testified that they had been less than forthcoming when initially contacted by police officers investigating the shooting. Their explanation for this behavior was fear of the consequences. Sullivans testimony help fill in the blank as to what the consequences could be. Further, Martinez, a self-admitted member of the Folks gang, denied giving certain information to investigating officers, apparently due to the same fear of retaliation. Thus, Sullivans testimony was not cumulative of other evidence.

Mondragon disputed the veracity of the prosecutions witnesses, arguing other factors accounted for the discrepancies in their testimony. The fact that criminal street gangs have a reputation for harassing and threatening witnesses was certainly relevant to this issue. Moreover, the court carefully limited this area of inquiry to general information from Sullivans experience as a gang expert. At one point, the court admonished the jury that Sullivans testimony on this topic was admitted solely to give the jury some information to put certain conduct into context . . . . When the prosecutor asked a specific question about witnesses with personal knowledge being asked what you saw and identity of the person who did it, the court sustained defense counsels objection and admonished the jury not to speculate as to what the answer might have been . . . . We conclude the trial court acted within its discretion by admitting a limited amount of expert testimony on the issue of witness intimidation.

Imposition of Consecutive Sentence Pursuant to Section 12022.53, subdivision (d)

Mondragon argues the trial courts imposition of a consecutive term pursuant to section 12022.53, subdivision (d) violates principles of double jeopardy and section 654. Specifically, he contends the court relied on the fact he used a firearm to commit murder to impose both an indeterminate term of life without the possibility of parole and a consecutive term of 25 years to life for causing death or great bodily injury by discharging a firearm. He acknowledges that we are bound to follow contrary decisions from the California Supreme Court (People v. Izaguirre (2007) 42 Cal.4th 126, 130-131; People v. Sloan (2007) 42 Cal.4th 110, 115-124; People v. Palacios (2007) 41 Cal.4th 720, 725), but raises the issue here to preserve it for later review. We acknowledge Mondragons contention and reject it under the authority of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

Corrected Minute Order and Abstract of Judgment

Mondragon argues the trial courts June 29, 2007 minute order and the abstract of judgment fail to conform to the oral pronouncement of judgment in two respects. First, both documents incorrectly recorded the imposition of a $200 parole revocation fine, which the trial court did impose but then struck for sentencing purposes, and incorrectly reflected credit for 1,043 days in custody when Mondragon was actually entitled to receive credit for 1,403 days in custody. The Attorney General conceded these points. On May 24, 2008, we received a corrected abstract of judgment from the superior court. However, we have not received a copy of the corrected minute order, nor is there any indication that the clerk of the court forwarded a copy of the corrected abstract of judgment to the Department of Corrections. Consequently, we direct the clerk of the superior court to produce a corrected minute order for June 29, 2007, and to forward a copy of the corrected abstract of judgment to the Department of Corrections.

III

DISPOSITION

The matter is remanded for the clerk of the superior court to produce a corrected minute order for June 29, 2007 that reflects that the trial courts oral pronouncement of judgment, striking the $200 parole revocation fine and crediting Mondragon with 1,403 actual days in custody. The clerk of the superior court is further directed to forward a copy of the previously corrected abstract of judgment to the

Department of Corrections. In all other respects, the judgment is affirmed.

SILLS, P. J.

WE CONCUR:

_

BEDSWORTH, J.

IKOLA, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.