P. v. Prieto
Filed 2/21/13 P. v. Prieto CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. HECTOR MARTIN PRIETO, Defendant and Appellant. | B236206 (Los Angeles County Super. Ct. No. TA106590) |
APPEAL from
a judgment of the Superior Court
of
County, Curtis B. Rappe, Judge. Affirmed.
Janyce Keiko Imata Blair, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
——————————
>
Appellant
Hector Martin Prieto (Hector) is the brother of defendant Jose Prieto (Jose),
and a friend of defendant Jesse Robles (Robles); all three are members of the
Barrio 13 street gang. Hector’s appeal
is the second appeal arising out of a robbery and triple murder committed,
according to Hector in order to raise money to bail the Prieto brothers’ mother
out of jail.
title="">[2] In a joint trial, a jury found Hector guilty
of three counts of first degree murder, one count of second degree robbery and
found gang enhancements and special circumstances allegations true. On appeal, Hector contends: (1) There is
sustain the jury’s gang enhancement and special circumstance findings; and (2)
The trial court abused its discretion by admitting excessively prejudicial
evidence of witness intimidation. We
affirm.
PROCEDURAL BACKGROUND
A third
amended information charged Hector, Jose and Robles with three counts of murder
(Pen. Code, § 187, subd, (a);
name="_ftnref3" title="">[3]
counts 5–7), robbery (§ 211; count 8), and attempted murder (§§ 187, subd. (a),
664; count 9).
title="">[4] As to counts 5 through 7, the information
also alleged that the murders were committed during the commission of a robbery
(§§ 190.2, subd. (a)(17), 211, 212.5), that Hector personally discharged a
handgun that caused the death of all three victims (§ 12022.53, subd. (d)), and
that a principal personally and intentionally discharged a firearm that caused
the death of all three victims (§ 12022.53, subds. (d) & (e)(1)). As to counts 8 and 9, it was further alleged
that Jose personally used a handgun. (§
12022.53, subd. (b).)
As to all
counts, it was alleged that the offenses were committed for the benefit of, at
the direction of, and in association with a criminal
street gang with the specific intent to promote, further, and assist in
as to Hector. All three defendants
pleaded not guilty and denied the special allegations.
A jury
convicted Hector and his codefendants as charged, and found the special
allegations to be true. The jury was
unable to reach a verdict in the penalty phase of Hector’s trial. The court declared a mistrial.
For each of the three murders,
Hector was sentenced to consecutive indeterminate terms of life without the
possibility of parole, plus consecutive terms of 25 years to life for the gun
enhancements. The court imposed, but
stayed, 25-year-to-life terms for the personal discharge of a firearm
enhancements for each murder count. (§
654.) The court also imposed a
determinate term of three years for the robbery, plus 10 years for the gang
enhancement. Hector was awarded custody
credits and ordered to pay various fees and fines.
FACTUAL BACKGROUND
On March
29, 2009,
Andrew Williams, Ronald Carter and Sinecia Miller were shot to death in
Williams’s apartment. At about the same
time, Reginald Kemp was robbed at gunpoint in an alley near Williams’s
apartment.
The incarceration of
the Prieto brothers’ mother and plans to raise her bail
The Prieto
brothers live with their mother, Beatrice Elias, in Compton. Elias was arrested on March 28, and was being
held in jail at the Los Angeles Sheriff’s Department (LASD), Century
Station. Her bail was set at $50,000.
Hector, Jose and Robles are members
of the “Barrio 13†gang. Hector’s
moniker is “Little Dopey,†Jose’s gang moniker is “Dopey†and Robles’s gang
moniker is “Little Duende.†Jesus
Saldana was a friend of all three defendants and a member of Barrio 13. Saldana was 27 years old when he testified at
trial under a grant of immunity. He has
been a member of Barrio 13 since he was 11 years old. Saldana has known Robles since he was “a
little kid,†and has known the Prieto brothers for three or four years. Saldana and his wife Mabel have five children
between the ages of two and eight years old.
Hector,
Saldana, Jose and Robles sat within a few feet of one another in the Prietos’
living room on the morning of March 29.
According to Saldana, Hector and Jose discussed plans to commit a
robbery to raise $50,000 to bail their mother out of jail. Robles agreed to help and told Jose and
Hector, “I got your back.†Saldana
planned to participate in the robbery, but his wife later dissuaded him from
doing so because he would not receive any of the proceeds. Saldana offered to give the Prieto brothers
money for their mother’s bail from a legal settlement he was expecting, but
they couldn’t wait.
The crimes
Later that
afternoon, Jose went to the Compton apartment shared by Rosa Avila and her
husband and children. Avila’s husband is
a friend of the defendants and their apartment building was a hangout for
Barrio 13 gang members. Jose asked
Avila’s husband to drive him somewhere, but he was drunk so Avila agreed to do
it. Jose told Avila they were going to
Robles’s house. Avila drove Jose in her
black Volvo, and Robles drove with Hector in a white pickup truck. Jose wore a black hooded jacket. When Avila asked Jose why they needed a ride
if Robles had a truck, Jose said it was low on gas. Avila followed the truck, passing gas
stations, and both vehicles stopped about a block from Robles’s house. Hector and Jose left the vehicles, walking
toward Rosecrans and out of Avila’s sight.
Robles and Avila stayed behind in their cars.
Andrew
Williams was a marijuana dealer who sold marijuana from his apartment on East
Rosecrans in Compton, from a nearby barbershop and in the driveway next to the
barbershop. Reginald Kemp was Williams’s
friend and customer. On March 29 at
about 7:00 p.m., Kemp parked and headed to Williams’s apartment with $90 to buy
marijuana. As Kemp walked toward the
driveway near Williams’s apartment, he saw a bald male wearing a black hoodie
leaning against a wall near Williams’s apartment. Kemp later identified the man as Jose. The hood covered Jose’s head at first. As he walked past Jose, Kemp heard what he
thought were four firecracker sounds or gunshots. Jose approached Kemp and pointed a revolver
at him. He asked Kemp “What do you got?â€
and, as he did so, Jose’s hood came down for an instant. Jose grabbed Kemp’s money; Kemp ran away as
Jose counted the cash.
name="_ftnref6" title="">[6]
Kemp went
to the barbershop for help. He told the
employees and patrons he had just been robbed.
One barber, who heard three shots before Kemp arrived, went to a nearby
apartment to check on his friends who lived there. Upon entry, the barber saw three dead bodies
later identified as Williams, Carter and Miller.
Meanwhile,
about five minutes after they left, Hector and Jose returned to the cars,
walking briskly. After Jose got back
into Avila’s car she asked him what had happened. He said nothing had happened, everything was
fine and told her to leave. Both
vehicles went back to Avila’s apartment complex. Once there, Avila watched Hector, Jose and
Robles “high-fiving†several other men in a congratulatory fashion. She also saw Hector pull a wad of paper money
from his pocket and asked him where the cash came from. Hector said he got it from “the Blacks [sic]
guys.†Later that night, Avila drove
down Rosecrans and saw police activity and yellow tape along the street. When Avila came home she watched the news and
learned three people had been killed in the area where she had seen the police
activity.
That
evening, Detective Paul Fournier and other members of the LASD arrived at the
scene of the triple murder in Williams’s apartment. Williams’s body was on the ground near the
front door, Carter’s was a few feet away on the floor and Miller’s body was
slumped over a chair. One of Carter’s
pants pockets had been turned inside out.
All three victims had been shot in the head. Miller suffered a gunshot wound that went
through her wrist and another gunshot wound to the top of her head. When he entered the apartment, Detective
Fournier smelled a strong odor of unburnt marijuana, and he saw small amounts
of marijuana scattered around.
Information
released by the police to the public was very general; it said only that three
people had been murdered at the scene.
Detective Fournier did not recall that the police statement to the media
revealed either the victims’ gender or the nature of their injuries. The press release did not contain specific
information about the number of bullets fired, the type of gun used or the
injuries to Miller’s wrist and head. The
press release did not mention that a white truck or a black Volvo were involved
in the murders, that the suspects were male Hispanics or that they wore black
hooded sweatshirts.
Beatrice Elias is
bailed out
Hector
posted bond for his mother at 11:54 p.m. on March 29. Saldana drove Hector to pickup Beatriz Elias
at the sheriff’s station the next morning after she was released from custody
at about 9:00 a.m. Later on March 30,
Saldana drove Hector, Jose, Robles and Elias to Aladdin Bail Bonds.
March 30: Hector and his brother
boast about the crimes to Saldana
On March 30 Saldana saw an early morning news report
about a local triple murder. He feared
his friends had been killed. Saldana,
his wife and their children drove to the Prietos’ home where he encountered
Jose and Robles sometime before 8:30 a.m.
Saldana asked them what had happened.
They said everything was cool.
Jose asked Saldana to drive to the police station to get Hector and see
if his mother had been released. Saldana
dropped Jose at his girlfriend’s house on the way, and took Robles to the
station to meet Hector.
Hector got
into Saldana’s van at the police station.
A television in the van was broadcasting a news story about the triple
murder. Miller’s mother was tearfully
asking for help from anyone with information about her daughter’s murder. Hector laughed at the broadcast and began to
tell Saldana how he committed the murders.
Hector told
Saldana that, the night before, he had gone to the victims’ apartment and
knocked on the door. When a man
(Williams) answered, Hector asked him for a $20 “sack,†and shot him in the
head when he turned around. He shot another
guy (Carter) on the couch, and then shot a girl (Miller) who had put up her
hand and begged for her life. That shot
went through the girl’s raised hand and hit her head. All three shots were “dome†(head)
shots. Hector took about $4,000–$5,000
and some “weed,†wiped the door knob with his shirt or sweater and left the
apartment. Jose had stood outside by the
front door while Hector shot the victims, and Robles stayed at the corner. The gun Hector used had only three
bullets. Hector showed Saldana his pants
and white tennis shoes. Saldana saw a
little bit of blood on them. Saldana and
later, Jose, told Hector to “get rid of†his pants and shoes, but Hector said
he would wash them. Hector told Saldana
he left his pants in a bag in a garage and told Robles’s sister to get rid of
them.
Saldana,
Hector and Robles drove back to get Jose at his girlfriend’s house. When Jose got in the van he also began
telling Saldana how the crimes had been committed. He told Saldana he was outside the door of
Williams’s apartment, acting as lookout when the shootings occurred. He wore a black hooded sweatshirt. He planned to kill anyone who tried to get
inside. While outside, Jose encountered
a Black man at whom he pointed a gun.
But the gun would not fire and the man ran away. Robles told Saldana he had driven a friend’s
small white pickup truck to the scene of the robbery and murders, and parked
around the corner. One of the Prieto
brothers said the other getaway driver was a girl in a black Volvo. Saldana did not immediately report his
friends’ involvement in the murders or robbery to the police. Saldana testified that he told his wife that
Hector, Jose and Robles had told him Avila had known they planned to commit a
robbery when she agreed to drive Jose to the area near Williams’s apartment.
The homicide
investigation and subsequent events
On April
28, the LASD searched Saldana’s home in the course of a neighborhood sweep, and
seized 51 baggies of marijuana. Saldana
and his wife were arrested, and their children were detained by the Department
of Children and Family Services (DCFS).
Upset and angry about what had happened to his family and in his
neighborhood, Saldana told LASD deputies he had information about the triple
murders and wanted his wife released from jail.
Saldana denied having told the LASD that he would not testify in this
case unless his wife and children were released from custody, or the charges
were reduced. He sought no special
benefit in exchange for the information he shared about the triple
murders. Saldana’s wife was released
from custody within 30 minutes. The LASD
requested that Saldana be charged with felony possession of marijuana for sale.
Saldana was
interrogated by Detectives Fournier and Caouette on April 29, who immediately
told him his wife had been released from custody. Saldana told the detectives what Hector and
the other defendants told him about the robbery and triple murder. He also said a woman in a black Volvo was
connected to the crimes. Saldana
directed the detectives to his cell phone, which contained the defendants’
phone numbers, and identified them in photo lineups. Saldana expressed concern for his family’s
safety and his own; as a gang member, Saldana knew that “[i]f you snitch you
die.â€
As a result
of his April 28 arrest, Saldana, who was on probation at the time, was charged
with possession of marijuana for sale and received a 16-month prison term. Apart from the relocation of his family,
Saldana received no favors from the LASD or the District Attorney’s
office—either in the marijuana-related arrest, or in a case related to an
October 2010 incident in which Saldana was arrested for carjacking—in exchange
for his testimony in this case. Saldana
did not “snitch†on any defendant in order to get his wife released from
custody or to get his children returned.
He did not consider the fact that his wife was released from jail a
“benefit,†and DCFS did not return the children for eight months. Detective Fournier did nothing to facilitate
Saldana’s wife’s release from custody, and played no role in getting Saldana’s
children back from DCFS.
On May 4,
Detective Fournier seized a white T-shirt and a pair of tennis shoes from
Hector while he was in lockup. The shirt
was used to prepare a K-9 scent discrimination lineup. The next day, Saldana told Detective Fournier
that Hector told him the shoes the police took were not the ones he had worn
during the murders. On May 12 police executed
a search warrant at the Prieto brothers’ home.
They seized two hooded black sweatshirts and a pair of white tennis
shoes. An LASD criminalist examined the
shoes. The upper portion of the shoes
appeared to have been cleaned or white polished, but the soles were dirty. Tests for blood evidence were negative; blood
can be washed off.
On May 5,
Detective Fournier interviewed Kemp and showed him four six-pack photographic
lineups. Kemp identified Jose as the
man who robbed him. Kemp was “a hundred
percent†certain of his identification.
On May 6, a
K-9 scent discrimination lineup was prepared using Hector’s shirt, and the
pants pocket of the murder victim that had been turned inside out. In the scent lineup, four boxes were placed
in a specific formation, three of which contained scent pads from Hispanic men
unconnected to the triple murder. The
fourth contained Hector’s scent. A dog
sniffed the pocket taken from the crime scene, and alerted to the box
containing Hector’s scent.
name="_ftnref7" title="">[7]
The defense
dog scent expert didn’t necessarily disagree with the prosecution’s expert’s hypothesis
that human scent is unique, but also was not convinced the hypothesis had yet
been proven. He opined that additional
research was necessary in order to learn how to properly train a scent dog. The defense expert also expressed concerned
about the medical treatment the scent dog in this case had received for his
cancer, which the expert believed could affect his sense of smell, and
expressed concern that the dog’s illness may have affected his ability to
perform tasks.
A
fingerprint analysis revealed that no fingerprints recovered from the crime
scene belonged to any defendant.
A firearms
specialist examined three bullets, one recovered from each victim. All three were fired from the same revolver,
either a .38-caliber special or a .357-caliber magnum. A coroner testified that all three victims
died of gunshot wounds to the head. As
for Miller, a single bullet went through her wrist before striking her head,
killing her. When she was shot, Miller’s
hand was most likely in front of her forehead.
An LASD
detective testified as the prosecution’s cell phone expert. He testified about calls made and received
from cell phone number (323) 377-4216, on March 28-30. The calls were made to Aladdin Bail Bonds,
using a cell phone tower near the Prietos’s home.
Prosecution gang expert testimony
Deputy Salgado, a member of the LASD gang task force in
Compton, testified as the prosecution’s gang expert. He testified about his qualifications as a
gang expert generally. Deputy Salgado
had specific expertise as to the Barrio 13 gang because his “entire backgroundâ€
had involved that gang, and most of his patrol training had been conducted in
the “Athens†area, which was the gang’s territory. Deputy Salgado had actively gathered
information on the Barrio 13 gang, which had about 115 documented members in
March 2009. He had spoken with hundreds
of gang members, including about 30 members of the Barrio 13 gang. Those conversations had yielded useful
intelligence, including the gang’s tattoos, hand signals, graffiti and
information about criminal acts the Barrio 13 gang commits. Deputy Salgado has been involved in hundreds
of investigations involving gang members, including about 30 involving Barrio
13 gang members. The “13†in Barrio 13
is significant in gang culture because it signifies the gang’s association with
the Mexican Mafia. Deputy Salgado is
familiar with Hector, Jose and Robles, each is a member of Barrio 13, with gang
tattoos and a gang moniker. Hector, Jose
and Robles were all active members of Barrio 13 on March 29.
Deputy
Salgado had been charged with targeting Barrio 13 in Compton because the gang,
which had historically not been a Compton gang, recently had committed a
“spike†of crimes in the area of 137th Street and Wilmington. It was “claiming†the area on the north and
south of those streets. Gang members
claim territory by, among other things, committing crimes and conducting drug
sales within the territory. Barrio 13’s
gang territory was “offset†in Compton, meaning the gang claimed that territory
as their own. Since gangs claim
territory unilaterally, there are frequent border disputes among rival
gangs. The crimes in this case took
place on the 1200 block of East Rosecrans, territory which, historically,
belonged to another gang.
According
to Deputy Salgado, the primary activities of Barrio 13 gang members are
vandalism, theft, criminal threats, robberies, assaults, burglaries, shootings,
murder and attempted murder. Deputy
Salgado based his professional opinion on his involvement in investigations of
Barrio 13 gang members. To establish the
gang enhancement allegations, the prosecutor presented Deputy Salgado with
certified documents pertaining to predicate crimes committed by Barrio 13 gang
members, including an attempted murder by one gang member in July 2005, and
robberies committed by another member of the gang in October 2007.
Hispanic
street gangs are divided into hierarchical levels of “wannabes,†“little
homeys†and “big homeys.†Gang members
answer to “shot caller[s]†who give orders and make the “ultimate
decision[s].†Gang members commit
crimes, or “put in . . . work,†to gain status within the
gang and to demonstrate to other gang members that their heart is with the
gang, and an individual gang member is “a hundred percent†behind it. The more violent or vicious the crime
committed, the greater the status an individual member gains within the
gang. A robbery or shooting will elevate
one’s status more quickly than will stealing a car, and murder is the ultimate
crime a gang member can commit. A murder
will result in a member’s status “go[ing] . . . all the way to the top†within
the gang. A gang member who commits a
murder or other violent crimes is viewed by other gang members and fearful
members of the community as a “big homey[].â€
Deputy
Salgado explained that gang members want to be feared because it gives them
heightened status, reputation and more respect from the gang. Crime, especially the type committed openly
by a group, instills fear in the community—which deters people from reporting
crimes to the police—and generates respect for the gang. That is why gang members don’t wear masks
when committing crimes. Crimes are
committed in broad daylight to instill fear within the community, which in turn
helps deter members of the community from reporting crimes for fear of
retaliation. Deputy Salgado opined that
gang members work together to commit crimes in groups of two to six for several
reasons. First, doing so creates “fear
by numbers†and intimidation. Second,
having a group creates witnesses, so there is someone to report back to the
gang that a crime was in fact committed.
Third, it’s easier to commit a crime working as a group because each
person can perform a different role such as robber, lookout, back-up and
driver.
The
prosecutor presented Deputy Salgado with a hypothetical explicitly patterned on
the facts of this case. She designated
the role of each defendant and gave them the fictional names Larry, Moe and
Curly, in lieu of Hector, Jose and Robles, respectively. Deputy Salgado opined that Larry, Moe and
Curly were gang members acting in association with one another, and had been
“aiding and abetting each other†in committing the crimes. In Deputy Salgado’s opinion, the triple
murder and robbery were committed to benefit the gang. Having committed the most violent crime of
murder, Larry’s status within the gang would be elevated to the top. The gang itself would also gain prestige, as
would the other two individual participants, Moe (the lookout) and Curly (the
getaway driver). The gang itself
benefited from the crimes, gaining respect and a reputation for violence which,
in turn, instilled fear within the community.
And, the fact that the victims were shot in the head would make rival gangs
and the community fear the Barrio 13 gang even more.
The gang
members’ reputations would increase and they would be known as violent members
of the gang. “Moe’s†role as lookout
benefited his status within the gang, and the fact that he talked about his
participation in the crime increased his and the gang’s reputation. “Curly’s†actions as a getaway driver
benefited the gang and himself, and showed he was not afraid to commit crimes. As a witness to the crimes, Curly also served
an important function because he could verify the actions of Larry and
Moe. The fact that Larry, Moe and Curly
spoke openly about their crimes demonstrated how the gang “publicize[d]†their
crimes.
Defense gang expert
Humberto
Guizar, a civil rights and personal injury attorney, testified as the defense
gang expert. Guizar is a former gang
member. He has testified before as an
expert on criminal street gangs and regularly lectures on criminal street gangs
and the gang enhancement statute. Guizar
reviewed police and investigative reports, the preliminary hearing transcript
in this case, Deputy Salgado’s testimony and met with Hector in custody. Defense counsel presented Guizar with a
hypothetical factual scenario patterned on the evidence in this case, and asked
him if the attempt to steal money to bail out the hypothetical mother was
committed for the benefit of, at the direction of and in association with the
Barrio 13 gang. In Guizar’s opinion, the
crimes were not gang crimes. If the
mother was not an active gang member, then it was not a gang crime. Not everything a gang member does is a gang
crime. Guizar saw no evidence of gang
activity and no evidence that the crimes benefited the gang. In Guizar’s opinion, the crimes were
committed in order to facilitate the mother’s release from custody.
None of the
defendants testified.
DISCUSSION
Hector
maintains the judgment must be reversed because there is insufficient credible
evidence to support the jury’s gang enhancement and gang special circumstance
findings. Hector also asserts that the
trial court erred in admitting evidence of witness intimidation against Avila
by several men unconnected to Hector.
Neither contention has merit.
evidence supports the gang enhancement and special circumstance findings.
Hector
contends the gang enhancement (§ 186.22, subd. (b)(1)(C)) and special
circumstance (§ 190.2, subd. (a)(22)) findings must be reversed because the
record lacks sufficient credible evidence from which a reasonable trier of fact
could have found him guilty beyond a reasonable doubt of committing the crimes
for gang-related reasons. He insists the
evidence is clear that the sole reason for the crimes’ commission was
defendants’ shared desire to raise bail money.
This assertion fails. Even if Hector
was motivated to raise money to bail his mother out of jail, that personal
motive does not detract from or negate his additional motive of conferring a
gang-related benefit.
a. Standard of review
In a criminal case, on review of a claim of insufficient
evidence, “we review the whole record to determine whether any rational trier
of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt.
[Citation.] The record must
disclose substantial evidence to support the verdict—that is, 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. [Citation.]â€
(People v. Zamudio (2008) 43
Cal.4th 327, 357 (Zamudio).) Substantial evidence includes circumstantial
evidence and reasonable inferences drawn from that evidence. (In re
James D. (1981) 116 Cal.App.3d 810, 813.)
In applying the substantial evidence “test, we review the evidence in
the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to supportâ€â€™ the
jury’s verdict.†(Zamudio, at p. 357.) The
same standard applies to determine the sufficiency of the gang enhancement
evidence. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224;
458, 465–466.) “[E]vidence that allows a
jury to find a felony was committed for the benefit of a gang within the
meaning of section 186.22, subdivision (b)(1), also typically supports a
finding the defendant knew of the criminal activities of the gang.†(People
v. Carr (2010) 190 Cal.App.4th 475, 488.)
Hector does not dispute that he and
his codefendants are members of the Barrio 13 gang. But, he argues that familial ties dominated
here and the defendants’ shared commitment to their “single-minded†goal of
getting the Prieto brothers’ mother out of jail ensured their cooperation and
predominated over their gang affiliation.
Thus, because the crimes were not committed with the specific and sole
intent to aid the gang, Hector insists it “strains credulity to argue that the
common gang membership [he] shared with his codefendants rendered the robbery
and murders gang-related crimes.â€
Hector’s
argument conflates two distinct prongs of section 186.22, subdivision
(b)(1). The enhancement requires the
prosecution to prove two elements:
“first, that the defendant committed a felony (a) for the benefit of,
(b) at the direction of, or (c) in association with a criminal street gang; and
second, that in connection with the felony, the defendant harbored the specific
intent to (a) promote, (b) further, or (c) assist in any criminal conduct by
gang members.†(In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358, italics
omitted.) The disjunctively worded
subparts of each element provide separate and alternative means to satisfy the
two statutory elements. (
149, 162.)
The
prosecution need not establish that the underlying felony benefits the
gang. The jury can “reasonably infer the
requisite association from the very fact that defendant committed the charged
crimes in association with fellow gang members.†(People
v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).)
to benefit the gang is not
required.†(Ibid.) Section 186.22,
subdivision (b)(1) requires only the “specific intent to promote, further, or
assist [in any] criminal conduct by gang members.†(People
v. Albillar (2010) 51 Cal.4th 47,
62, italics omitted.) The enhancement
only applies when the individuals involved associate “together as gang
members.†(Ibid., italics omitted.) But
that association is permissibly inferred in circumstances in which the
individuals rely on mutual gang affiliations or work together with other gang
members. Citing coordination among gang
members, the gang expert in Morales explained
that the gang crimes there “involved three gang members acting in association
with each other. The gang provided ‘a
ready-made manpower pool . . . .’ That
is, one gang member would choose to commit a crime in association with other
gang members because he could count on their loyalty. They would ‘watch his back . . . .’ In addition, the very presence of multiple
gang members would be intimidating. The
crime would benefit the individual gang members with notoriety among the gang,
and the gang with notoriety among rival gang members and the general
public.†(Morales, at p. 1197.)
Hector
claims the evidence shows the crimes were intended to benefit his mother, and
that the desire to bail her out precludes a conclusion that the defendants had
an additional motive to benefit the gang.
But, “to presume, as defendants urge, that family ties necessarily
predominate over gang affiliation when gang members who are related commit
crimes together would substantially eviscerate the gang enhancement.†(People
v. Albillar, supra, 51 Cal.4th at
p. 62.) The evidence that Hector and his
codefendants committed three murders and a robbery in collaboration with one
another, and that all three defendants were members of the Barrio 13 gang was
sufficient to satisfy the specific intent element of the gang enhancement,
irrespective of whether those crimes were also committed in order to raise bail
money.
committing crimes, especially when the crimes are particularly vicious, such as
murders, gang members gain respect and an elevated status, both as individuals
and for their gang at large among other gangs and by instilling fear in members
of the community.
The
evidence that gang members Hector, Jose and Robles committed the crimes in
collaboration with one another, combined with Deputy Salgado’s expert opinion
that the defendants acted in association with one another based on gang
membership, was sufficient to support the jury’s finding that the crimes were
committed with the specific intent to promote, further, or assist in criminal
conduct by fellow gang members. (
605, 624–626 [prosecution may prove elements of § 186.22 through expert
witness]; People v. Hernandez (2004)
33 Cal.4th 1040, 1047–1048.) This is
true irrespective of the possibility that Hector may also have been motivated
to commit the crimes to raise his mother’s bail. He and fellow gang members simply chose to
raise the bail money in a way that also benefited their gang. Substantial evidence supports the jury’s gang
enhancement and special circumstance findings, and Hector’s challenge to those
enhancements fails.
2. Admission of evidence of witness
intimidation
Hector
contends the trial court abused its discretion by admitting highly prejudicial
evidence of threats of violence made against Avila by three unknown
assailants. He insists there was no
evidence of a link between himself and the men who made the threats and that,
even if the evidence was relevant, its prejudicial value outweighed its
relevancy and it should have been excluded under Evidence Code section 352, and
the court’s failure to exclude the evidence deprived him of a fair trial. Respondent maintains Hector forfeited this argument
by failing specifically to challenge the evidence at trial on Evidence Code
section 352 grounds.
facts
When Avila
began to testify at trial about an assault and threat in her home in 2009,
Jose’s attorney made a relevance objection, which was overruled. The court granted a sidebar. During that colloquy, Jose’s counsel objected
to Avila’s testimony on multiple grounds, including hearsay, due process and
the right of confrontation, arguing there was no nexus between Jose and the
threats. Hector’s attorney joined Jose’s
objections, but conceded that the evidence that Avila had been intimidated was
relevant to her credibility.
name="_ftnref9" title="">[9] The court overruled the objections. But, before Avila resumed testifying, the
court instructed the jury that the evidence that Avila had been subjected to
intimidation was relevant only to evaluate her credibility. The court also instructed the jury the
evidence was not being “admitted as evidence of guilt against any of the
defendants,†and there was “no evidence that is attributable to the defendants
or any of them.â€
Avila then
testified that after she spoke to the police about the events she participated
in and others she witnessed on March 29, she had been home alone one day in May
2009 when three Hispanic men, with whom she was unfamiliar, appeared at her
door and forced their way inside. One of
them asked Avila “what happened to Dopey [Jose]?,†pushed her onto a couch and
smeared hair removal cream on her face.
The men held her down, kept her from removing the cream, and warned her
not to talk to the police about the shootings.
They told her that, if she said anything, “they were going to do
something to [her] kids and [her] husband.â€
One man told her not to move away “or this is going to happen to you,â€
and dragged his finger across his throat mimicking a slicing motion. When Avila asked what he meant, the man said
she would be killed. As they were
leaving, one man told Avila, “You know how we run things out here so you should
stay quiet if you want to live. See what
you see. Hear what you hear. Whatever happens you stay quiet.â€
Avila
believed the men belonged to the Barrio 13 gang, members of which often visited
her apartment complex. The men had
forced Avila to keep the hair removal cream—which is typically left on for two
or three minutes—on her face for 10–15 minutes; the chemicals burned her
skin. Avila was afraid, but a few days
later she reported the men’s threats to the LASD. This stipulation was read to the jury: “[O]n May 26, 2009, Rosa Avila reported the
May 23, 2009 incident involving being threatened and assaulted in her home to .
. . the [LASD].†As the court observed
during the sidebar conference, and as the prosecutor noted during closing
argument, Avila broke down, trembled and cried incessantly during her
testimony. Avila was given use immunity
for testifying at the preliminary hearing, and she and her family were
relocated.
b. Forfeiture
Respondent argues that Hector
forfeited his Evidence Code section 352 argument by his failure to raise the
objection at trial. We agree.
Questions regarding the
admissibility of evidence are generally not reviewed on appeal in the absence
of a specific and timely objection in the trial court on the ground urged on
appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also Evid. Code,
§ 353.) “[T]o the extent
[appellant] asserts a different theory for exclusion than he asserted at trial,
that assertion is not cognizable [on appeal].â€
(People v. Partida (2005) 37
Cal.4th 428, 438.) “In the absence of an
objection based on Evidence Code section 352, or a specific request for the
court to exercise the discretion granted it by that
section, . . . the trial court was not required ‘to make
sua sponte an affirmative finding on the record to the effect that the probative
value of the proffered evidence outweigh[ed] its prejudicial effect.’†(People
v. Smith (1984) 151 Cal.App.3d 89, 97.)
A relevance objection alone will not preserve a challenge under Evidence
Code section 352. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.) The requirement that a trial court weigh
relevance against prejudice is “triggered only if defendant either expressly
invokes Evidence Code section 352 as a ground for objection, or at least
affirmatively argues that the risk of prejudice outweighs the relevance of the
proffered evidence.†(
477.)
Here, counsel for Jose and Hector
did object to the evidence of witness intimidation on various bases. At no time, however, did either attorney
assert an Evidence Code section 352 objection or argue that the risk of
prejudice outweighed the relevance of the proffered evidence. Accordingly, Hector’s claim of error is
forfeited on appeal.
The judgment
is affirmed.
NOT TO BE
PUBLISHED.
JOHNSON,
J.
We concur:
ROTHSCHILD,
Acting P. J.
CHANEY, J.
name="_ftn1" title="">[1]
When discussed individually, we refer
to Hector and Jose Prieto by their first names to avoid confusion.
name="_ftn2" title="">[2]
Jose and Robles filed the first appeal; neither is a party here. (People
v. Prieto et al. (Nov. 30, 2012, B233309) [nonpub. opn.].)
