P. v. Reyes
Filed 1/23/14 P.
v. Reyes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD JAMES REYES,
Defendant and Appellant.
G047950
(Super. Ct. No. 09NF1710)
O P I N I O N
Appeal
from a judgment of the Superior Court of
Orange County, Dan McNerney, Judge.
Affirmed.
Richard
De La Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
We
appointed counsel to represent Edward James Reyes on appeal. Counsel filed a brief that set forth the
facts of the case. Counsel did not argue
against his client but advised the court no issues were found to argue on his
behalf. Pursuant to Anders v. California (1967) 386 U.S. 738
(Anders), to assist the court with
its independent review,
information as to issues that might arguably support an appeal. Counsel provided
three issues: (1) whether Reyes’s
convictions were supported by substantial evidence; (2) whether the accomplice
testimony was sufficiently corroborated; and (3) whether Reyes was prejudiced
by gang expert testimony.
Counsel
advised Reyes he may personally file a supplemental brief. Reyes was given 30 days to file a
supplemental brief. We have reviewed the
information provided by counsel and we have independently examined the record. We found no arguable issues. (People
v. Wende (1979) 25 Cal.3d 436.) The
judgment is affirmed.
PROCEDURAL
HISTORY
An
amended information jointly charged Reyes and Mariano Martinez with conspiracy
to commit murder in violation of Penal Code
and deliberate murder in violation of sections 664, subdivision (a), and 187,
subdivision (a) (count 2), and being an active participant in a criminal street
gang in violation of section 186.22, subdivision (a) (count 3).
information alleged Reyes personally discharged a firearm causing great bodily
injury within the meaning of section 12022.53, subdivision (d), personally
discharged a firearm within the meaning of section 12022.53, subdivision (c),
and he personally used a firearm within the meaning of section 12022.5,
subdivision (a). The information also
alleged Reyes committed counts 1 and 2 for the benefit of a criminal street
gang within the meaning of section 186.22, subdivision (b)(1).
Prior
to trial, the trial court granted the prosecution’s motion to sever the cases
of the two defendants. After the close
of evidence, the court also granted the prosecution’s motion to dismiss the section
12022.5, subdivision (a), allegation as to count 2. The jury found Reyes guilty of attempted premeditated
murder (count 2), and of being an active member of a criminal street gang (count
3). The jury also found it true Reyes
had committed count 2 for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b)(1).
The jury was unable to reach a verdict on count 1, and as to the
allegations made as to count 2 pursuant to section 12022.53, subdivisions (c)
and (d). The court declared a mistrial
as to that count and those allegations.
In
exchange for the prosecution’s foregoing a retrial on count 1 and on the
section 12022.53, subdivisions (c) and (d) allegations as to count 2, Reyes admitted
an allegation as to that count that a principal in a gang-related crime
personally used a firearm during the commission of that offense within the
meaning of section 12022.53,
subdivisions (b) and (e)(1). On
the same day, the trial court sentenced Reyes to an aggregate indeterminate
sentence of 25 years to life as follows:
a life term with a minimum parole eligibility date of 15 years pursuant
to section 186.22,
subdivision (b)(5), for count 2; and a consecutive term of 10 years
for the allegation as to section 12022.53, subdivisions (b) and (e)(1), on that
count. The court imposed and stayed the
sentence on count 3 pursuant to section 654.
FACTS
In
2009, Chicanos Kicking Ass (“CKAâ€) and Family of Latin Kings (FOLKS) were rival
street gangs. Reyes, moniker “Menace,†Martinez, moniker “Stalker,â€
and Freddie Guerrero, moniker “Cartoon†were members of CKA.
On May 20, 2009, Reyes, Martinez, and Guerrero picked up Jose Linares in Martinez’s car and
asked him if he wanted “‘to go to FOLKS.’â€
Linares understood that to mean they were going to “jump†a FOLKS gang member. Linares told them he was willing and that he had a gun stashed or
hidden. Guerrero said he wanted to use
the gun, but Reyes said he did, so Linares gave the
gun, wrapped in a blue or black bandanna, to Reyes. Martinez was driving the car, Guerrero was in the front passenger seat, Reyes
was in the right rear seat, and Linares was in the left rear seat.
Later, they
saw Ricardo Cordova, who looked to them to be a FOLKS gang member. Linares said, “There is one.†Guerrero
asked Cordova, “‘Where are you from?’†Cordova
replied, “‘I don’t bang.’†Guerrero and
Reyes got out of the car with “wrappings†on their faces and began running
after Cordova. Guerrero yelled, “CKA.†Reyes had the gun in his hand when he got out
of the car. One of the people who got
out of the car fired three or four shots from a revolver. No one could identify the shooter, but Linares testified
that when Reyes got back in the car Reyes still had the gun in his hand. Linares also testified he and Reyes later hid the gun in a drainpipe and
Reyes told him, “‘I think I got him.’â€
Linares was charged
with attempted murder as a result of the shooting involved in this case. He testified at Reyes’s trial in return for a
promise that he would receive a sentence of 11 years and four months for his
part in the crime.
A
passerby drove Cordova to the hospital. Cordova
was shot
in the left occiput, where the base of the skull meets the neck,
behind and below the left ear. The
bullet lodged next to Cordova’s left jaw.
The bullet blocked the left internal jugular vein, but the artery was
not damaged, so the decision was made not to operate to remove the bullet.
Sergeant
Henry Fantes found a “dark rag†near the Anaheim
intersection of Neighbors
Avenue and Onondaga Avenue
after a witness pointed it out to him. The
parties stipulated the rag was tested for DNA and that Reyes was excluded as a
major contributor, but that Amos Lopez, whose DNA sample was obtained through
the CAL-DNA data bank, was a major contributor. Lopez, moniker “Stranger,†was a CKA gang
member.
On June 17, 2009, Anaheim police officers, including Sergeant Michael
Haggerty, stopped the car used in the May 20 shooting. Martinez was driving the car and Reyes, Lopez, and another male were
passengers in the car. Inside the car,
officers found a length of pipe between the front seats, a souvenir wooden bat,
and a claw hammer in places where they would be accessible to be used as
weapons. Officers arrested Reyes. Haggerty went to Reyes’s apartment at 8252 San Helice Circle in Buena Park to tell his parents he had been arrested, and with the mother’s
consent, he searched Reyes’s bedroom. Haggerty
found letters and song lyrics that made reference to “Menace†shooting “foolsâ€
on the spot. In addition, there were
written references to “Forks,†which was a derogatory term for the FOLKS gang.
In
September 2009 Reyes and Lopez were housed in juvenile hall. A deputy probation officer, Indalesia Bravo,
placed Reyes and Lopez in the same room and set up a microphone so they could
be surreptitiously taped. Bravo taped
their conversation and listened from the next room. Lopez was heard to tell Reyes the police had
told him that Lopez’s DNA was found, “[F]or, like a rag right there by where that
fool got shot.†After some innocuous
discussion, Reyes told Lopez, “‘Cause I had took off my shirt . . . white, a
white, a white shirt across my face.’†When
Lopez asked Reyes about a bandana, Reyes responded, “[W]e left it in the car, fool. The, the one that we wrapped it with, right? Yeah, well we came with it ‘cause Twin had it
right here, he pulled out the strap and gave it to me. There was no bandana.’†Finally, Reyes told Lopez, in apparent
response to a question, “Nah, I threw it over there . . . .†Lopez asked, “Twin?†and Reyes answered, “Yeah[,]
he came . . . with it already like packing it.â€
“‘Strap’†is a common street term for a gun.
Anaheim
Police Department Detective Jeff Dodd testified as a gang
expert. He testified that as
of May 20,
2009, Reyes was an active participant in
the
criminal street gang known CKA.
CKA was a nontraditional criminal street gang in the sense that it had
white as well as Hispanic members. CKA “claimedâ€
two different neighborhoods. It started
as a tagging crew in about 1990, and its rivals included
Citron Street, FOLKS, East
Anaheim, Down Familia Wicked Soldiers, Small Town,
Jeffrey Street,
and Fullerton Tokers Town. In May 2009, CKA had approximately
45 members. It employed as common
signs or symbols the names
“Chicanos Kicking Ass,†or “Brown Familia Chicanos Kicking Ass.†Its primary activities included vandalism and
felonious assaults, including stabbings and shootings. In addition, gang members would get the money
to buy guns by stealing and selling drugs.
CKA members Linares and Efrain Garibay had, within the requisite time period, committed
the crimes necessary to establish a “‘pattern of criminal gang activity’â€
within the meaning of section 186.22, subdivision (e).
Dodd
based his opinion Reyes was an active participant in CKA on police reports and other
police documentation indicating Reyes was in the company of other CKA members
on a number of occasions, that he had been stopped by the police for curfew
violations in areas “claimed†by CKA, and that he had gang tattoos that were
indicative of gang membership. Dodd
acknowledged that on a number of the occasions when Reyes was stopped by the
police while he was in the company of gang members or was in an area “claimedâ€
by CKA, Reyes either denied being a gang member, or that there was no notation
in the report on which Dodd was relying that either Reyes or the people he was
with admitted to being gang members.
In
response to a hypothetical question mirroring the facts, Dodd testified it was
his opinion the shooting was committed for the benefit of, or in association
with, a criminal street gang. Dodd
opined the shooting would bolster CKA’s reputation because it would demonstrate
to rival gangs and the community that CKA was powerful.
Leticia
Rodriguez testified she is Reyes’s mother.
Reyes was
13 or 14 years old when he acquired the gang tattoos. The word “Menace†was tattooed on Reyes’s
body. On June 17, 2009, she allowed police officers to enter her home and search a room Reyes
shared with his brother Moyses. She had
another son named Andres, who was also known as “Menace.†Andres, who was 23, went to juvenile hall at
the age of 15 and did not return home. The
crimes Andres was convicted of committing were “probably†gang-related, and the
gang was likely “F Troop.â€
DISCUSSION
Pursuant to
issues. We will address each in turn.
Evidence
The
jury convicted Reyes of attempted premeditated murder (count 2), and of being
an active member of a criminal street gang (count 3). The jury also found it true Reyes committed count
2 for the benefit of a criminal street gang within the meaning of section
186.22, subdivision (b)(1). As to count 2,
Reyes admitted an allegation he was a principal in a gang-related crime who personally
used a firearm during the commission of that offense within the meaning of
section 12022.53, subdivisions (b) and (e)(1).
When
reviewing a criminal conviction for sufficient evidence, this court must
examine the whole record in the light most favorable to the trial court’s
judgment. (People v. Brady (2010) 50 Cal.4th 547, 561.) Reversal for insufficient evidence is unwarranted
unless it appears “‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998)
18 Cal.4th 297, 331.)
“Attempted murder
requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing. [Citations.]â€
(People v. Lee (2003) 31
Cal.4th 613, 623.) “A defendant’s intent
is rarely susceptible of direct proof, and may be inferred from the facts and
circumstances surrounding the offense. [Citation.]†(People
v. Felix (2009) 172 Cal.App.4th 1618, 1624.) A conviction for attempted premeditated
murder will not be reversed if a rational trier of fact could have found
premeditation and deliberation beyond a reasonable doubt based upon the
evidence presented. (
Cal.App.4th 1180, 1191.) Premeditation
requires the defendant acted as “the result of ‘a pre-existing reflection’ and ‘careful
thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse
hastily executed.’†(
27.) Premeditation and deliberation can
be established with evidence of motive, planning activity, and the manner of
killing. (
see also People v. Stitely (2005)
35 Cal.4th 514,
543.)
Here, there is adequate evidence Reyes
planned to go into FOLKS claimed territory to find and shoot a rival gang
member. Once he believed he had found a
rival gang member, Reyes exited the car with his face wrapped and with the gun in
his possession. Reyes then followed the
victim around the corner where the victim was shot. We conclude ample evidence supports Reyes’s
conviction for attempted premeditated murder.
Reyes was also convicted
of being an active member of a criminal street gang. The elements of the gang participation
offense in section 186.22, subdivision (a), are the following: First, active participation in a criminal
street gang, in the sense of participation that is more than nominal or passive;
second, knowledge the gang’s members engage in or have engaged in a pattern of
criminal gang activity; and third, the willful promotion, furtherance, or
assistance in any felonious criminal conduct by members of that gang. (People
v. Lamas (2007) 42 Cal.4th 516, 523.) A person who is not a member of a gang, but
who actively participates in the gang, can be guilty of violating section
186.22, subdivision (a). (§ 186.22,
subd. (i).) Dodd’s testimony along with
the facts of this case provide substantial evidence to support the gang
participation conviction.
The jury also found it
true Reyes had committed count 2 for the benefit of a criminal street gang
within the meaning of section 186.22, subdivision (b)(1). A gang enhancement finding is reviewed under
the substantial evidence standard. (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (
truth of a gang enhancement allegation, the People must prove beyond a
reasonable doubt that the offense charged was “committed for the benefit of, at
the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members.†(§ 186.22, subd. (b)(1).) The gang relatedness of an offense may be
proved by expert testimony. (E.g.,
1044, 1049-1050, fn. 5; Albillar, supra,
51 Cal.4th at p. 63; People v. Gardeley
(1996) 14 Cal.4th 605, 617.) Again, along
with the facts of this case, Dodd’s testimony provided substantial evidence to
support the jury’s true finding on the gang enhancement.
Testimony
Section 1111 defines an
accomplice “as one who is liable to prosecution for the identical offense
charged against the defendant.†The
section further provides: “A conviction
cannot be had upon the testimony of an accomplice unless it be corroborated by
such other evidence as shall tend to connect the defendant with the commission
of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.†(§ 1111.) Corroborating evidence must connect defendant
with the crime to satisfy the jury the accomplice is telling the truth but the
evidence need not corroborate every fact to which the accomplice testifies and
may be slight and entirely circumstantial.
(People v. Whalen (2013) 56
Cal.4th 1, 55.)
Linares was charged
with attempted murder as a result of the shooting involved in this case. Thus, he was an accomplice under section
1111. Linares’s testimony
was corroborated in a variety of ways.
Less than a month after the shooting, officers stopped the car used in
the May 20 shooting. Martinez was driving
the car and Reyes, Lopez, and another male were passengers in the car. In Reyes’s bedroom, officers found letters
and song lyrics that made reference to “Menace†shooting “fools†on the spot
and there were written references to “Forks,†which was a derogatory term for
the FOLKS gang. When Reyes and Lopez
were housed in juvenile hall, they were surreptitiously taped. Lopez expressed concern about his DNA being
found in connection with the attempted murder.
Reyes then commented on the circumstances of the crime including
referring to “a white shirt across my face,†and indicating the bandana wrapped
around the gun had been left in the car.
Based on all of this evidence, we conclude Linares’s testimony
was sufficiently corroborated.
Recognizing
the potential prejudicial effect of gang evidence, our Supreme Court has condemned
the introduction of gang evidence that is tangentially relevant because of its
highly prejudicial impact. (
1115.) Because gang evidence creates a
risk the jury will infer the defendant has a criminal disposition and is
therefore guilty of the charged offense, “trial courts should carefully
scrutinize such evidence before admitting it.â€
(People v. Williams (1997)
16 Cal.4th 153, 193.) Gang evidence
is subject to the general rule that all relevant evidence is admissible if it
is relevant to a material issue in the case other than character, is not more
prejudicial than probative, and is not cumulative. (People
v. Avitia (2005) 127 Cal.App.4th 185, 192 (Avitia).) If “evidence of
gang activity or membership is important to the motive, it can be introduced
even if prejudicial. [Citations.]†(People
v. Martin (1994) 23 Cal.App.4th 76, 81.)
“‘[B]ecause a motive is ordinarily the incentive for criminal behavior,
its probative value generally exceeds its prejudicial effect, and wide latitude
is permitted in admitting evidence of its existence.’ [Citations.]â€
(People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1550.)
Gang evidence, including
expert testimony, is relevant and admissible to prove the elements of the
substantive gang crime and gang enhancements.
(Avitia, supra, 127
Cal.App.4th at p. 192.) A properly
qualified gang expert may testify about a wide range of issues, including a
gang’s territory, retaliation, graffiti, hand signals, tattoos, and
clothing. (People v. Lindberg (2008) 45 Cal.4th 1, 46-47.)
Reyes
was charged with conspiracy to commit murder and attempted premeditated and
deliberate murder. It was alleged these
two crimes were committed for the benefit of a criminal street gang within the
meaning of section 186.22,
subdivision (b)(1). Additionally,
Reyes was charged with being an active participant in a criminal street gang in
violation of section 186.22, subdivision (a).
Gang evidence was also relevant and probative on the issue of
motive. Accordingly, we conclude Reyes was
not prejudiced by the amount and the nature of the gang testimony.
In addition to reviewing
the issues suggested by counsel, we have reviewed the entire record. Having done so, we conclude there is no
arguable issue on appeal.
DISPOSITION
The judgment is
affirmed.
O’LEARY,
P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code.
name="_ftn2" title="">[2] The
amended information charged Martinez with other crimes not relevant here.
