P. v. Penaloza
Filed 6/28/12 P. v. Penaloza
CA4/3
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ALBERTO PENALOZA,
Defendant and Appellant.
G044756
(Super. Ct. No. 10CF0027)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gregg L. Prickett, Judge. Affirmed.
Edward J. Haggerty,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Annie Featherman Fraser, Deputy Attorney
General, for Plaintiff and Respondent.
* * *
Defendant
Alberto Penaloza appeals his convictions on a number of felonies. He alleges the trial court erred in admitting
certain testimony of the gang expert, in instructing the jury, and in failing
to strike for sentencing purposes his prior “strike” conviction. He also alleges the evidence does not support
his convictions for actively participating in a
ineffective assistance of counsel.
Finding no errors, we affirm.
I
FACTS
A
jury convicted defendant of assaulting Katherine J. with a firearm (Pen. Code §
245, subd. (a)(2); all statutory references are to the Penal Code unless
otherwise stated; count three), felon in possession of a firearm (former §
12021, subd. (a)(1) (Stats. 2008, ch. 599, § 4); count five), and active participation
in a criminal street gang (§ 186.22, subd. (a); count eight) on December 31, 2009. It also convicted him of possession of
methamphetamine for sale (Health & Saf. Code, § 11378; count six),
possession of methamphetamine while armed with a loaded firearm (Health &
Saf. Code, § 11370.1, subd. (a)(1); count seven), and active participation in a
criminal street gang (count 10) on January
3, 2010. The jury found
defendant was personally armed with a firearm (§ 12022, subd. (c)) in
connection with the possession of methamphetamine for sale. The remaining charges of
subd. (a), 213, subd. (a)(1)(A); count one), assault with a firearm (§ 245,
subd. (a)(2); count two), dissuading a witness (§ 136.1, subd. (c)(1); count
four), and enhancements alleged in connection therewith, were dismissed by the
court at the close of the prosecution’s case when the alleged victim in those
counts, Ruby R., refused to testify, even after being granted immunity and held
in contempt.
In
the bifurcated portion of the trial, the court found defendant had previously
been convicted of a serious felony (§ 667, subd. (a)(1)), suffered a prior
conviction under the “Three Strikes” law (§§ 667, subds. (d), (e)(1), 1170.12,
subds. (b), (c)(1)) and served three prior terms in
The
court denied defendant’s invitation to strike his prior strike conviction for
sentencing purposes pursuant to section 1385 and sentenced him to an aggregate
term of 17 years in prison. The court
imposed a principal term of six years (upper term of three years doubled, based
on defendant’s prior strike conviction) for possession of methamphetamine for
sale, a consecutive four-year term for the section 12022, subdivision (c)
(personally armed with a firearm) enhancement attached to that count, a
consecutive two-year term for defendant’s conviction for assault with a firearm
(one-third the midterm doubled), and a consecutive five-year term on the
serious felony prior conviction enhancement.
Terms on other counts were either ordered to run concurrently or were
stayed pursuant to section 654. The
terms for defendant having served prior terms in state prison were stricken for
sentencing purposes.
Katherine
J. placed an advertisement for an additional roommate for her three-bedroom
apartment on Craig’s List. By New Year’s
Eve 2009, Ruby R. responded to the ad and moved in. About 7:00
or 8:00 that evening, Ruby R. came
home and prepared to go out to a club.
Katherine J. was in her room and heard what sounded like
whimpering. She left her room to check
on Ruby R. In the living room, she saw
defendant hitting Ruby R. Ruby R. was on
the corner of the couch, curled up into a ball, with her hands covering her
head. Defendant stood over Ruby R., and
hit her three or four times with his fists.
He also hit her with a black gun.
Katherine
J. called out for defendant to stop.
Defendant then pointed the black gun at her. Katherine J. screamed, ran back to her
bedroom, closed the door, locked it, went into the closet, and called 911. The police arrived and had Katherine J. sit
on the steps outside her apartment while they conducted a “sweep” to determine
if anyone was in the apartment. They
found Ruby R. inside Katherine J.’s closet.
An officer noticed a bruise on Ruby R.’s right arm and had photographs
taken of her injuries. Three days after
the incident, Ruby R. said she sustained multiple bruises in the beating.
A pair
of black Oakley sunglasses was obtained from the apartment and swabbed for the
presence of DNA. Tests on the swab
revealed there were multiple sources of DNA on the glasses. Defendant’s DNA matched that of one of the
two major contributors of the DNA on the sunglasses. Defendant’s DNA profile “is rarer than one in
70 million.”
Detective
Colton Kirwan of the Tustin Police Department was dispatched to Katherine J.’s
location. Upon arriving, he saw a black
Lexus drive out of the complex, turn right, and head northbound on Williams
Street. It
was moving rapidly with its headlights off.
Kirwan could not tell whether the first digit on the license plate was a
3 or an 8 because there was some kind of mark on the plate. Officer Charles Mitchell was dispatched to
the area and was told to be on the lookout for a black sedan with no headlights
on. He saw a vehicle matching the
description northbound on Williams Street. He pulled his squad car in behind the vehicle
and attempted to stop the vehicle. When
he turned on his overhead lights, the vehicle continued driving normally. But when he turned on his siren, the vehicle
sped up. At one point during the chase,
the vehicle drove the wrong way on a one-way street. Mitchell lost sight of the vehicle when it
was travelling the wrong way on the one-way street. The vehicle was found later that night in
territory claimed by the McClay Street
gang.
On
January 3, 2010, Detective
James Mansoor was part of a surveillance being conducted on an apartment on Santa
Clara in Santa Ana. He was looking for defendant and saw him
leaving the apartment. He ordered
defendant to stop and put his hands up, but defendant ran in the opposite
direction, throwing his jacket to the ground.
A search of the jacket revealed two syringes and a plastic baggie
containing what was believed to be methamphetamine.
Mansoor
searched the apartment under surveillance.
In a bedroom believed to be defendant’s, he found defendant’s driver’s
license, Social Security card, and pay stubs.
He also located several documents bearing defendant’s name in a vanity
in the bathroom connected to the bedroom.
A loaded Smith and Wesson nine-millimeter semiautomatic handgun was
found between the mattress and the box spring of the one bed in the bedroom. A Tupperware container containing 3.25 grams
of methamphetamine was found approximately six feet from the bed. A baggie found in the bathroom contained .69
grams of methamphetamine. Another
contained .44 grams of methamphetamine.
No drugs were located in any other bedroom or in any common area.
Mansoor
also found a digital scale and a pay-owe sheet.
The scale was on the vanity in the bathroom. The pay-owe sheet was found in the nightstand
of the bedroom. “McClay
Street” was written on the inside cover of the
spiral notebook containing the pay-owe sheet.
“Scrappy” was also written on the notebook.
Mansoor
said drug dealers use such scales, and a pay-owe sheet is a “crude accounting”
method for street level drug dealers. He
added that the amount of methamphetamine found in the apartment was substantial
and is not commonly found on the street.
He opined the methamphetamine was possessed for sale and based his
opinion on the amount of methamphetamine and the presence of the pay-owe sheet
and scales.
Gang Evidence
Nicholas
Lopez of the Tustin Police Department testified as a gang expert. He said McClay
Street is a Hispanic
street gang and described the territory claimed by
the gang. He also testified about two
predicate offenses committed by McClay Street
gang members. The gang’s primary
activities include felony possession of firearms and narcotic sales. The area in which the chase of the black
Lexus ended is in McClay Street
territory.
“Respect”
is important to gangs. Members seek
respect from other gangs by committing crimes of violence and bragging about
their crimes. Carrying guns, even by one
prohibited from possessing a firearm, furthers the member’s reputation and
assists in the commission of criminal acts.
Gangs view tattoos as badges of honor.
Tattoos involve a level of commitment and demonstrate the individual’s
loyalty to the gang: the more tattoos, the more loyalty.
Defendant
has a number of McClay Street tattoos.
He has a tattoo on his neck signifying alliance with southern Hispanic
gangs. He has a tattoo representing the
number 13. The 13th letter in the
alphabet (M) refers to the Mexican Mafia.
“McClay Street” is tattooed on his left forearm. He also has a “MC” tattoo and one of the
gang’s symbol — “Magicos” — tattooed across his stomach. Additionally, he has a tattoo referring to
another gang member.
A
month before his arrest, defendant wrote “McClay St” in concrete by his
residence. The notebook containing the
pay-owe sheet contained his moniker, Scrappy.
People who are not members of a gang do not claim to be in the
gang. A false claim of membership risks
physical harm. Lopez opined defendant was an active participant in the McClay
Street gang on the charged dates. In
reaching this conclusion, he considered a field investigation card and a STEP
notice served on defendant in 2006, four or five police reports involving
defendant, and that defendant previously admitted he committed a felony for the
benefit of, at the direction of, or in association with the McClay Street gang,
and admitted he actively participated in the gang.
II
DISCUSSION
A. Gang
Evidence Issues
1. The
Expert’s Opinion That Defendant was an Active Participant
Trial
courts have wide discretion in determining the relevance of evidence. (Evid. Code, § 350; People v. Babbitt (1988) 45 Cal.3d 660, 681.) “‘Broadly speaking, an appellate court
reviews any ruling by a trial court as to the admissibility of evidence for
abuse of discretion.’ [Citation.] This standard of review applies to a trial
court’s determination of the relevance of evidence, as well as to whether the
evidence’s probative value is substantially outweighed by its prejudicial
effect. [Citations.] The trial court’s ‘discretion is only abused
where there is a clear showing [it] exceeded the bounds of reason, all of the
circumstances being considered.’
[Citation.]” (
Farming Co. (2000) 77 Cal.App.4th 619, 639-640.) The same holds true when the evidence under
consideration is a gang expert’s testimony.
“As a general rule, a trial court has wide discretion to admit or
exclude expert testimony. [Citations.]
An appellate court may not interfere with the exercise of that
discretion unless it is clearly abused.
[Citation.]” (
187.)
Defendant
contends the trial court erred in permitting the gang expert to testify
defendant was an active participant in the McClay Street gang. He argues an expert opinion was unnecessary
because the jury was equally able to decide whether defendant’s tattoos, his
prior convictions, the gang writing in the small notebook, and the other facts
of the case prove he was an active participant in a criminal street gang.
In
discussing gang expert testimony in People
v. Olguin (1994) 31 Cal.App.4th 1355, another panel of this court held
“[t]he requirements for expert testimony are that it relate to a subject
sufficiently beyond common experience as to assist the trier of fact and be
based on matter that is reasonably relied upon by an expert in forming an
opinion on the subject to which his or her testimony relates. [Citations.]
Such evidence is admissible even though it encompasses the ultimate
issue in the case. [Citations.]” (Id.
at p. 1371.) “Otherwise admissible
expert opinion testimony which embraces the ultimate issue to be decided by the
trier of fact is admissible. (Evid.
Code, § 805.)” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) “‘There is no hard and fast rule that the
expert cannot be asked a question that coincides with the ultimate issue in the
case.’ [Citations.] ‘“[T]he true rule is that admissibility
depends on the nature of the issue and the circumstances of the case, there
being a large element of judicial discretion involved . . . . Oftentimes an opinion may be received on a
simple ultimate issue, even when it is the sole one, . . . because it cannot be
further simplified and cannot be fully tried without hearing opinions from
those in better position to form them than the jury can be placed in.”’ [Citation.]”
(People v. Valdez (1997) 58
Cal.App.4th 494, 507.) Contrary to
defendant’s assertion, the expert’s conclusion that defendant was an active
participant in the criminal street gang did not “direct[] the jury to find the
active participation element true” any more than any other expert opinion
involving an ultimate issue.
An
expert’s opinion is not admissible when it merely “‘consists of inferences and
conclusions which can be drawn as easily and intelligently by the trier of fact
as by the witness.’ [Citations.]” (People
v. Valdez, supra, 58 Cal.App.4th
at p. 506.) The opinion was
appropriately admitted in this case. The
McClay Street gang is no fraternity. It
apparently does not have rules and regulations reduced to writing, such that a
jury may simply look to the writing to determine whether an individual is an
active member. As a criminal street
gang, its culture, habits, and psychology are still “‘sufficiently beyond
common experience’” such that the opinion of an expert may be deemed helpful to
the jury. (Ibid.) Accordingly, the
trial court reasonably concluded the testimony would assist the jury in
determining whether defendant was an active participant in the gang. Because we find the trial court did not abuse
its discretion in permitting the gang expert to opine defendant was an active
participant in the gang, we necessarily find the trial court did not usurp the
jury’s role and did not deny defendant due process.
2. The
Evidence Supports the Gang Offenses
Defendant
was convicted of two violations of section 186.22, subdivision (a). “The substantive offense defined in section
186.22[, subdivision] (a) has three elements.
Active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive, is the first element of the substantive
offense defined in section 186.22 [, subdivision] (a). The second element is ‘knowledge that [the
gang’s] members engage in or have engaged in a pattern of criminal gang
activity,’ and the third element is that the person ‘willfully promotes,
furthers, or assists in any felonious criminal conduct by members of that
gang.’ [Citation.]” (People
v. Lamas (2007) 42 Cal.4th 516, 523.)
In
addressing challenges to the sufficiency of evidence, “the reviewing court must
examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence — evidence that is
reasonable, credible and of solid value — such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
circumstantial evidence.
[Citation.] Although it is the
jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of
the defendant’s guilt beyond a reasonable doubt. [Citation.]
‘“If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citation.]”’ [Citation.]”
(People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) In other words, the sufficiency of evidence
test used on review “does not require a court to ‘ask itself whether
trial established guilt beyond a reasonable doubt.’ [Citation.]”
(Jackson v. Virginia (1979)
443 U.S. 309, 318-319.)
Defendant
contends the evidence does not support his convictions for violating
subdivision (a) of section 186.22. He
maintains the evidence is legally insufficient in that it failed to demonstrate
(1) he actively participated in the McClay Street gang, (2) he had knowledge of
the criminal activities of the gang, or (3) that he aided and abetted a
specific felony committed by gang members.
The expert’s opinion, which we discussed above, was sufficient to
support the first element. (
585 [testimony of single witness sufficient unless it describes facts or events
physically impossible or inherently improbable].)
“A gang
engages in a ‘pattern of criminal gang activity’ when its members participate
in ‘two or more’ statutorily enumerated criminal offenses (the so-called
‘predicate offenses’
that are committed within a certain time frame and ‘onseparate occasions, or by two or more persons.’
[Citation.]” (
930, italics omitted.) The jury heard
testimony concerning gang members having committed two statutorily enumerated
criminal offenses. In addition, Lopez
testified gang members brag about the crimes they commit. Defendant has been associated with the gang
for some time and was in a position to brag about his acts and to hear others
brag about theirs. As a result of
defendant’s past guilty plea and admission that he committed the crime for the
benefit of or in association with the McClay Street gang (§ 186.22, subd.
(b)(1)), he was aware it qualified as a criminal street gang, i.e., its members
engaged in a pattern of criminal activities.
(People v. Tran (2011) 51
Cal.4th 1040, 1048.) Additionally, in
this matter defendant committed two crimes on the list of offenses that may be
used to establish the gang has a pattern of criminal gang activity.
(§ 186.22, subds. (e)(4)
[possession of a controlled substance for sale], (e)(31) [felon in possession
of a firearm].) A current offense can be
considered as one of the offenses necessary to establish a pattern of criminal
gang activity. (People v. Olguin, supra,
31 Cal.App.4th at p. 1383.) Defendant
certainly was aware of his own crimes.
The jury could reasonably find on this evidence defendant knew the gang
engaged in a pattern of criminal gang activity.
As noted
above, the offense has three elements.
In addition to proving a defendant to be an active gang participant who
had knowledge of the gang’s criminal activities, the prosecutor must also prove
the defendant “‘willfully promote[d], further[ed], or assist[ed] in any
felonious criminal conduct by members of that gang.’ (§ 186.22(a).)” (People
v. Lamas, supra, 42 Cal.4th at p.
523.) Defendant’s argument that he
cannot be found guilty of violating subdivision (a) of section 186.22 where he
acted alone, and did not aid and abet another gang member in any felony
conduct, is presently pending before the Supreme Court in People v. Rodriguez, review granted January 12, 2011, S187680.
In
432, the appellate court held that section 186.22, subdivision (a) does not
require an individual to aid and abet the commission of a felony by a fellow
gang member; the actual perpetrator of the crime may be found to have violated
the statute. (People v. Ngoun, supra,
88 Cal.App.4th at pp. 435-437.) Because
the gravamen of the offense is active participation in a criminal street gang,
the court found there was no reason to conclude the Legislature intended to
punish aiders and abetters, but not the actual perpetrator of a felony. (Id.
at p. 436.) The court reasoned that
“‘promotes’” as used in the statute means to contribute and “[a]n active gang
member who directly perpetrates a gang-related offense ‘contributes’ to the
accomplishment of the offense no less than does an active gang member who aids
and abets or who is otherwise connected to such conduct.” (Ibid.)
In
356, the issue was the trial court’s modification of CALCRIM No. 1400, the
instruction containing the elements of a section 186.22, subdivision (a)
violation. The court modified the
instruction as it related to the third element of the crime: “‘And, three, the defendant willfully
promoted, furthered or assisted by either
directly and actively committing a felony offense or aiding and abetting felonious
criminal conduct by members of that gang.’”
(People v. Sanchez,
correctly stated the applicable law. (
Lastly,
in People v. Sanchez (2009) 179
Cal.App.4th 1297, the defendant, a gang member, robbed employees of a pizza
parlor. He had an accomplice, but the
accomplice was not a gang
member. (Id. at p. 1301.) The
violating subdivision (a) of section 186.22, notwithstanding the fact he did
not aid and abet a crime committed by another gang member. (People
v. Sanchez, supra, 179
Cal.App.4th at p. 1308.)
Defendant’s
reliance on language in People v.
Castaneda (2000) 23 Cal.4th 743, a case that did not consider the issue
raised herein, is misplaced for “‘“[c]ases are not authority for propositions
not considered.”’ [Citation.]” (People
v. Johnson (2012) 53 Cal.4th 519, 528.)
Because we agree with the decisions in Ngoun, Salcido, and
defendant’s convictions for violations of section 186.22, subdivision (a).
B. Jury
Instruction Issues
Defendant
alleges the court erred in instructing the jury in three instances. “The independent or de novo standard of
review is applicable in assessing whether instructions correctly state the law
[citations] and also whether instructions effectively direct a finding adverse
to a defendant by removing an issue from the jury’s consideration
[citations].” (People v. Posey (2004) 32 Cal.4th 193, 218.) If an instruction is found to have lessened
the prosecution’s burden of proof, a majority of the courts have found the
error requires reversal unless the prosecution can establish beyond a
reasonable doubt the error was harmless.
(People v. Roder (1983) 33
Cal.3d 491, 504.)
1. CALCRIM
No. 1400
Related
to his argument that the evidence does not support his convictions for
violating section 186.22, subdivision (a) (see ante, pt. II.A.2.), defendant complains the trial court erred in
instructing the jury pursuant to CALCRIM No. 1400. His complaint is with that portion of the
instruction that spells out the third element of the offense. In connection with the third element, the
instruction provided the prosecution must prove: “The defendant willfully assisted, furthered,
or promoted felonious criminal conduct by members of the gang by directly and
actively committing a felony offense.”
He again maintains an individual accused of violating section 186.22,
subdivision (a) must aid and abet the commission of a felony offense. However, as we held above, the statute does
not require the accused aid and abet the commission of a felony; the direct
perpetrator is also culpable under the statute.
(Ante, at p. 13.) Accordingly, the court did not misstate the
law in instructing the jury pursuant to CALCRIM No. 1400. (People
v. Sanchez, supra, 179
Cal.App.4th at p. 1308.)
2. CALCRIM
No. 3131
Defendant
was charged with being personally armed while he possessed methamphetamine for
sale. The methamphetamine he was charged
with possessing for sale was found in what the jury could reasonably have
concluded was his bedroom at a time when defendant was not present. The police also found a loaded
nine-millimeter semiautomatic handgun underneath the mattress to the bed that
was but six feet away from the methamphetamine.
In
People v. Bland (1995) 10 Cal.4th
991, a case involving an analogous scenario, the Supreme Court found
subdivision (c) enhancement for being personally armed while possessing drugs,
notwithstanding the fact that he was not present when the drugs and firearm
were discovered. The court held “a
defendant convicted of a possessory drug offense [is] subject to [a section
12022] ‘arming’ enhancement when the defendant possesses both drugs and a gun,
and keeps them together, but is not present when the police seize them from the
defendant’s house.” (
Noting
one is armed within the meaning of the statute if the individual has the
firearm “available for use, either offensively or defensively” (
possession is a crime of a continuing nature and if the defendant “has a weapon
available at any time during the felony to aid in its commission, the defendant
is ‘armed with a firearm in the commission . . . of a felony.’” (Id.
at p. 999.) The court summarized its
holding as follows: “[W]hen the
prosecution has proved a charge of felony drug possession, and the evidence at
trial shows that a firearm was found in close proximity to the illegal drugs in
a place frequented by the defendant, a jury may reasonably infer (1) that the
defendant knew of the firearm’s presence, (2) that its presence together with
the drugs was not accidental or coincidental, and (3) that, at some point
during the period of illegal drug possession, the defendant was present with
both the drugs and the firearm and thus that the firearm was available for the
defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted
by defense evidence, are sufficient to warrant a determination that the
defendant was ‘armed with a firearm in the commission’ of a felony within the
meaning of section 12022.” (
In
connection with the personally armed firearm enhancement (§ 12022, subd. (c))
attached to count six (possession of methamphetamine for sale), the court
instructed the jury pursuant to CALCRIM No. 3131. The modified instruction included the
following language based on the Bland
decision to which defendant objects: “If
the People have proved that a firearm was found close to the methamphetamine in
a place where the defendant was frequently present, you may, but are not
required to conclude that: [¶] 1. The
defendant knew the firearm was present; [¶] 2. It was not accidental or
coincidental that the firearm was present together with the drugs; and [¶] 3.
During at least part of the time[] the defendant allegedly possessed the
illegal drug, he had the firearm close at hand or available for immediate use
to aid in the drug offense. [¶] If you
find beyond a reasonable doubt that the evidence supports these conclusions,
you may but are not required to conclude that the defendant was personally
armed with a firearm in the commission of count six.” He contends the quoted portion of
instruction, although a correct statement of the law, was argumentative,
improperly pointed the jury to specific prosecution evidence and directed the
jury how it should interpret that evidence, reducing the prosecution’s burden
of proof and denying him a fair trial.
Defendant
did not object to the instruction.
Although one must generally object to an instruction correct in the law
in order to raise the issue on appeal, we may consider the issue if it affects
the defendant’s substantial rights. (
353.) We may also address the issue to
preclude a claim of ineffective assistance of counsel. (People
v. Palmer (2005) 133 Cal.App.4th 1141, 1156.) The latter reason is founded on a desire to
preserve limited judicial resources and may be particularly appropriate when
the relative merit of the underlying contention — that the instruction was
improper — can easily be resolved on the initial appeal. (See People
v. Cox (1991) 53 Cal.3d 618, 682, disapproved on another ground in
421, fn. 22.)
Defendant cites cases standing for
the proposition that instructions that “invite the jury to draw inferences
favorable to one of the parties from specified items of evidence” are
impermissible, because such instructions are argumentative. (People
v. Gordon (1990) 50 Cal.3d 1223, 1276; People
v. Wright (1988) 45 Cal.3d 1126, 1135-1138.) He cites Quercia
v. United States (1932) 289 U.S. 466, for the proposition that a court may
not instruct a jury with instructions favoring one of the parties. Quercia
is inapposite. In Quercia, the complaint was not with the trial court’s
instructions. Rather, the defendant’s
complaint had to do with the judge’s comments on the evidence: “‘And now I am going to tell you what I think
of the defendant’s testimony. You may
have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his
testimony. It is rather a curious thing,
but that is almost always an indication of lying. Why it should be so we don’t know, but that
is the fact. I think that every single
word that man said, except when he agreed with the Government’s testimony, was
a lie.” (Id. at p. 468.) The high
court found the trial judge overstepped his bounds in declaring his belief the
defendant was lying. “His definite and
concrete assertion of fact, which he had made with all the persuasiveness of
judicial utterance, as to the basis of his opinion, was not withdrawn. His characterization of the manner and
testimony of the accused was of a sort most likely to remain firmly lodged in
the memory of the jury and to excite a prejudice which would preclude a fair
and dispassionate consideration of the evidence.” (Id.
at p. 472.)
The trial judge in the present
matter did not comment on whether he believed or disbelieved any of the
evidence. Rather, he simply instructed
the jury pursuant to the recommended modification of CALCRIM No. 3131. The instruction was even-handed. Unlike the impermissibly slanted instruction
provided in People v. Owens (1994) 27
Cal.App.4th 1155,
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the court did not instruct the jury that the prosecution had introduced
evidence “‘tending to prove’” the defendant committed the charged acts. As the court in Owens noted, “Instructing the jury that the People have introduced
evidence ‘tending to prove’ appellant’s guilt carries the inference that the
People have, in fact, established guilt.”
(Id. at p. 1158.) In the present case, the trial court
instructed the jury it may, but is
not required to, make certain conclusions “[i]
was found close to the methamphetamine in a place where the defendant was
frequently present.” (Italics added.)
It has
long been the law in this state that a court may properly instruct a jury as to
inferences it may, but is not required to, draw from the evidence. (People
v. Carmen (1951) 36 Cal.2d 768, 773.)
permitting, but not requiring, a jury to draw certain inferences from
evidence. (See e.g, CALCRIM Nos. 371
[consciousness of guilt, suppression or fabrication of evidence], 372
[defendant’s flight], 376 [possession of recently stolen property], 1860
[opinion of value of property], 2100 [if .08 blood-alcohol level when tested,
may infer defendant was under the influence when driving], 2101 [if .08
blood-alcohol level when tested, may infer defendant had .08 level when
driving], 2220 [may infer defendant knew license was suspended if prosecution
proves notice of suspension mailed to most recent address and not returned as
undeliverable or unclaimed], 2641 [if defendant made statements different from
those in affidavit, may find statements in affidavit are false], 2801 [if
prosecutor proved beyond a reasonable doubt certificate from Franchise Tax
Board stating no tax return was filed, may conclude return was not filed], 2981
[may find failure to support was willful if prosecutor proved defendant knew of
child and failed to provide support], 2811 [if proved defendant’s name is
signed on tax return, may conclude defendant was signer].)
The
instruction was an accurate statement of the law. (People
v. Bland, supra, 10 Cal.4th at
pp. 1002-1003.) It was not slanted in
favor of the prosecution and merely informed the jury as to a permissible
inference it could draw from testimony if it accepted the evidence as true.
3. CALCRIM
No. 372
CALCRIM
No. 372 is the standardized flight instruction.
The court instructed the jury as follows: “If the defendant fled or tried to flee
immediately after the crimes charged on January 3rd of 2010, or after he was
accused of committing a crime, that conduct may show he was aware of his
guilt. If you conclude that the
defendant fled or tried to flee, [it is] up to you to decide the meaning and
importance of that conduct. However,
evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Defendant contends the instruction was
improper in that it permitted the jury to infer defendant’s guilt from his
flight and in this case, the inference lacked a rational basis. The constitutionality of CALCRIM No. 1400 has
been upheld by the courts. (See e.g.,
Cal.App.4th 26, 30; People v. Hernández
Ríos (2007) 151 Cal.App.4th 1154, 1159; People
v. Mendoza (2000) 24 Cal.4th 130, 179-180 [upholding CALJIC flight
instruction as constitutional].) In
fact, defendant’s argument was expressly rejected in People v. Hernández Ríos, supra,
151 Cal.App.4th at pp. 1158-1159.) We
agree with the Hernández Ríos court’s
holding.
Contrary
to defendant’s contention, CALCRIM No. 372 did not permit the jury to draw an
irrational inference from his flight.
When defendant fled from the police, he threw aside his jacket, which
incidentally contained the evidence of his possession of methamphetamine. Inside the abandoned jacket, the police found
a plastic baggie containing what was believed to be methamphetamine, as well as
two syringes. While it could be argued
he got rid of the jacket to make himself lighter and faster in an effort to
make his getaway, it was not unreasonable to infer defendant ran and got rid of
his jacket during the flight because he did not wish to get caught with the
contraband on his person. A flight
“instruction is properly given if the jury could reasonably infer that the
defendant’s flight reflected consciousness of guilt. [Citatation.]” (People
v. Howard (2008) 42 Cal.4th 1000, 1020-1021.) Consequently, the court did not err in
instructing the jury pursuant to CALCRIM No. 372.
C. Defendant’s
Romero Motion
A
trial court has the discretion to strike for purposes of sentencing a prior
conviction found true under the Three Strikes law. (People
v. Superior Court (Romero) (1996)
13 Cal.4th 497, 529-530.) We review a
trial court’s refusal to strike a prior strike conviction for an abuse of
discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) “‘[D]iscretion is abused only if the court
exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’
[Citation.]” (
165, 182-183.)
The
purpose of the Three Strikes law is to punish recidivism (People v. Murphy (2001) 25 Cal.4th 136, 155) by providing longer
prison sentences for individuals who “‘have been previously convicted of
serious and/or violent felony offenses.’”
(In re Young (2004) 32 Cal.4th
900, 909.) In deciding whether to strike
a prior conviction and remove the defendant from the enhanced sentencing scheme
provided by the Three Strikes law, the court “‘must consider whether, in light
of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.’ [Citation.]”
(In re Large (2007) 41 Cal.4th
538, 552.)
The
trial court did not abuse its discretion in this matter. As the court found, defendant’s prior
“strike” conviction for robbery not only qualifies as a serious felony (§ 1192.7,
subd. (c)(19)), it also qualifies as a violent felony (§ 667.5, subd. (c)(9))
and was committed for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)). Although the prior conviction
occurred in 1999, 10 years before the instant offenses, defendant committed
other felonies in the interim and served state prison terms for those
violations. The triggering “strike”
prior conviction cannot, given this circumstance, be deemed remote. (See People
v. Green, supra, 34 Cal.App.4th
at p. 183 [20-year-old felony prior conviction admissible to impeach despite
remoteness because the witness “did not subsequently lead a blameless
life”].) In this matter defendant was
convicted of two counts of active participation in the same criminal street
gang he previously committed a crime for, as well as another serious
felony. (§ 245, subd. (a)(2); § 1192.7,
subd. (c) [assault with a firearm is a serious felony].) Additionally he was convicted of possessing
methamphetamine for sale. The sale of
narcotics is one of his gang’s primary activities. And, in both instances defendant was armed
with a firearm, something he is not permitted to possess even if possession was
not in connection with felonies. Even
after being arrested on this matter, defendant has been unable to bring his
conduct in line. He received write-ups
in jail for possessing “pruno” (see People
v. Abilez (2007) 41 Cal.4th 472, 489 [“an alcoholic drink brewed illicitly
in county jail by inmates”]) and Seroquel.
Defendant is not outside the spirit of the Three Strikes law; he is the
dangerous, violent repeat offender the statutory scheme was meant to
affect. The trial court did not abuse
its discretion in denying defendant’s invitation to strike his sole prior
“strike” conviction.
III
DISPOSITION
The judgment
is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
The parties stipulated defendant had previously been convicted of a felony.
STEP is an acronym for Street Terrorism Enforcement and Prevention. (See § 186.20.)
