Filed 7/1/13 P. v. Rivas CA5
NOT
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALLEN RIVAS et al.,
Defendants and
Appellants,
F061170
(Super.
Ct. Nos. BF129529B &
BF129529C)
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOE CORONADO, JR.,
Defendant and
Appellant.
F062077
(Super.
Ct. No. BF129529A)
APPEAL from
a judgment of the Superior Court
of
James F.
Johnson, under appointment by the Court of Appeal, for Defendant and Appellant
Allen Rivas.
Richard M.
Doctoroff, under appointment by the Court of Appeal, for Defendant and
Appellant Hilario Torres.
Christine
Vento, under appointment by the Court of Appeal, for Defendant and Appellant
Joe Coronado, Jr.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W.
Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On October 28, 2009, a consolidated
information was filed in Kern County Superior Court, charging defendants Allen
Rivas, Hilario Torres, and Joe Coronado, Jr., with attempted premeditated
murder (Pen. Code,
title="">[1] §§ 187, subd. (a), 189, 664; count 1),
assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in
possession of a firearm (former § 12021, subd. (a)(1); count 3), and
active participation in a criminal street gang (§ 186.22, subd. (a); count
5). Coronado
was also charged with being a felon in possession of ammunition (former
§ 12316, subd. (b)(1); count 4).
personally and intentionally discharged a firearm, proximately causing great
bodily injury or death (§ 12022.53, subd. (d)), and, as to Rivas and
Torres, that a principal in the commission of the offense so acted (
was alleged to have personally inflicted great bodily
(§ 12022.7). It was further alleged,
as to counts 1 through 4, that defendant(s) charged therein committed the crime
for the benefit of or in association with a criminal street gang
(§ 186.22, subd. (b)(1)). Last, it
was alleged Rivas and Torres each had previously been convicted of a serious
felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds.
(c)-(j), 1170.12, subds. (a)-(e)).
Following a
jury trial, Rivas and Torres were convicted of count 3, felon in possession,
and acquitted of the remaining charges.
Count 3’s gang enhancement allegations were found not true as to both
men. Coronado was convicted of counts 1
through 4, but acquitted of count 5. The
jury found true all but the gang enhancement allegations, which it found not
true. Following a bifurcated court
trial, Rivas and Torres were each found to have suffered a prior conviction
under the “Three Strikes†law.
name="_ftnref3" title="">[3]
Rivas and
Torres requested that the court dismiss their prior strike convictions. The requests were denied, and each was
sentenced to six years in prison and ordered to pay various fees, fines, and
assessments. Coronado was sentenced to a
total unstayed term of life plus 25 years to life in prison, and was ordered to
pay restitution along with various fees, fines, and assessments.
Defendants
now appeal, raising numerous claims of error.
erred in denying his Batson/Wheeler
instructing on the kill zone theory; (3) the kill zone theory instruction was
ambiguous and misleading; (4) the prosecutor committed misconduct in vouching
for his case; (5) the trial court erred when it denied Coronado’s request to
sever and bifurcate gang issues; (6) the trial court erred in denying
Coronado’s Pitchess
failing to adequately argue to bifurcate the gang issue; and (8) cumulative
error occurred. We find no merit in
Coronado’s contentions and affirm.
Torres and
Rivas make various contentions on appeal.
Because we agree that there is insufficient evidence to sustain either
of their convictions for possession of a firearm, we reverse their convictions,
rendering their remaining contentions moot.
FACTS
A.
PROSECUTION EVIDENCE
The
Shooting
On the
afternoon and evening of September 26, 2009, Johnny Elizalde threw a birthday
party at his Bakersfield home for himself and his niece. Defendants were among the 30 to 60 friends
and family members who attended.
Elizalde had known Coronado, who lived down the street, for years, and
defendants were present at Elizalde’s invitation.
vicinity of the backyard patio, where Elizalde had music, drinks, and
food.
Although
Elizalde had not been involved for some 20 years, he grew up in the Colonia, a
southern gang. He was familiar with the
Okie Bakers; they were a south side gang who “used to kick with the
Colonia.†Elizalde was aware there was
rivalry between southern and northern Hispanic gangs. Bakersfield was southern territory; southern
gangs associated with the number 13.
Elizalde’s
wife, Claudia, and her family, including her brothers Ricardo, René, Johnny,
and Alejandro Serrano, were from Delano.
territory. He had never seen Claudia,
Ricardo, or René be involved with gang-related activities. When Elizalde gave parties, however, they
would often throw signs, like a one and a four, with their hands.
occasion.
The night
of the party, Elizalde was wearing a Raiders jersey, Ricardo was wearing a
49ers shirt, and Coronado was wearing a Pittsburgh Steelers jersey. The party was not a gang party; according to
Elizalde, “[e]verybody uses Niners†without it making them “14.â€
wearing a white tank top with a blue rag around his neck. Rivas was wearing a gray polo or
T-shirt. None of the defendants said
anything to Elizalde about gangs or about Elizalde’s family being from
Delano. In fact, prior to the discussion
between Rivas and Ricardo that preceded the shooting, nobody at the party heard
anyone say anything gang related. Nobody
saw anyone with a weapon prior to the shooting.
At some
point during the party, Elizalde’s family was singing and dancing in the
backyard. When the music stopped,
Ricardo and his wife, Yolanda, started to return to the area in which they had
been sitting. As they did so, Rivas came
up to Ricardo, tapped him on the shoulder, asked if he could talk to him, and
pointed toward the garage. Ricardo and
Yolanda walked to the garage to see what he wanted. Yolanda felt something was not right. She had “sensed something weird†when
defendants arrived at the party, because Torres was wearing a “wife beaterâ€
shirt with a bandana over his neck, and when she saw people like that, she
thought of gangs right away. Also, at
times she caught the three “just staring over†at her group, which included
René.
Once inside
the garage, Rivas asked Ricardo why Ricardo was throwing gang signs. Ricardo asked what Rivas was talking about,
said he was there with his family having a good time, and asked what Rivas
wanted to do. Ricardo, who said he had
not thrown any gang signs, interpreted Rivas’s question as a challenge to
fight. During the conversation, Yolanda
realized Torres and Coronado were standing an inch or two from her, looking
upset. This made her uncomfortable
because of what Torres was wearing and the fact one had approached Ricardo and
then all three got together.
Yolanda
yelled at Rivas that if he had anything he wanted done or any trouble, he
needed to leave, because it was her sister-in-law’s house and they did not go
over there to cause problems like that.
Rivas then said, “let’s take it outside,†and started walking out of the
garage to the street. When Yolanda
turned to Coronado and Torres, they put up their hands. Torres told her, “no, no, no, it’s cool,†and
Coronado said nothing was going to happen.
At that point, the lights went off in the garage. Yolanda saw Coronado and Torres walk out
behind Rivas. She held onto Ricardo so
he would not follow them.
Later,
around 10:00 p.m., René was dancing when somebody came and said his brother was
getting into an argument in the front.
René walked through the garage.
Rivas was standing, because he thought Ricardo was going to need help. Daniel was standing on the sidewalk, looking
into the street, when Rivas struck him once or twice in the jaw. Rivas struck Daniel without provocation;
neither had said anything to the other before the fight. Daniel fought back. They were the only ones fighting.
moved out to the street by this time.
However, Elizalde did not see Coronado or Torres anywhere.
Flores saw
René heading toward Daniel. Something
else appeared to draw René’s attention, and he turned the other way and quickly
walked toward Coronado as if they were going to fight. Vanessa saw Coronado then pull a small black
gun from his waist, point it at René, and shoot him one time in the
stomach. She did not see any other
weapons. Torres was standing about an
arm’s length from Coronado when Coronado fired.
He did not do anything as Coronado was pulling out the firearm. Nothing gang related was said. Flores (who did not see a gun in Coronado’s
hand but saw the flame come out of the barrel) estimated Coronado shot René when
the two were about four feet apart.
According
to Vanessa, Coronado walked away after he fired the shot. Torres went in the same direction. According to Elizalde, who did not see the
shooting but heard one shot, defendants ran in the direction of Coronado’s
house. Rivas was first, Torres was
behind him, and Coronado was last.
According to Ricardo, who likewise did not actually see the shooting but
heard one shot, Coronado immediately walked away and defendants all left. Yolanda confirmed there was only one shot;
she did not see Torres or Rivas at the time of, or after, the gunshot, although
she saw Coronado get into a small, dark blue car. According to Daniel, however, he saw Torres
walking away from the house before the gunshot went off. At the time the shot was fired, Torres was
already down the street.
Shot in the
upper abdomen, René was hospitalized for close to a month, during which time he
underwent three surgeries due to his injuries and resulting infections. As of the time of trial, he had undergone
five operations, and had lasting physical effects, as a result of the gunshot
wound.
On
September 28, 2009, a search was conducted at Coronado’s residence. A McDonald’s restaurant bag containing a box
of twenty .22-caliber rounds was found inside an old sofa in the backyard.
That same
morning, Senior Deputy Marvin Gomez and Deputy Andrew Avila spoke to Coronado
at the residence.
name="_ftnref13" title="">[13] Coronado related that Elizalde had invited
him to the party. When Coronado asked
who would be there, Elizalde said he would have some people from Delano who
were Nortenos, but that they were going to “keep everything cool.†As soon as Coronado arrived, however, he felt
tension. A lot of people were wearing
red. Coronado mentioned to Elizalde that
some of the partiers were drunk and looking at him funny, like there were going
to be problems, but Elizalde told him not to worry about it.
Coronado
related that later, after the beer ran out and people started drinking hard
liquor, he decided it was time to go. As
he started walking out through the garage, “all the chaos started happening.†Coronado heard people yelling “fuckin’
scrapes [sic],†then, when everyone
started running in and out of the garage and to their vehicles, he left. He was wearing a Steelers jersey bearing the
number 10. When people were yelling
“scrapes [sic],†he assumed they
thought he was Southern.
Coronado
related that he heard one gunshot, but did not realize anyone had been
shot. When he got home, however, his
“old lady†told him she heard gunshots on the street and right behind the
house. Coronado estimated he got home
around 10:00, then he stayed in an abandoned house down the street. He denied shooting anybody or having a gun on
him.
Gomez and
Avila interviewed Torres later that same day.
was with his wife and children at his mother’s house. Confronted with a photograph taken at the
party, however, he admitted he and his wife were there, but stated they left
and he did not know what happened. He
related that Elizalde had invited them.
At some point, it seemed like everyone went into the garage. He and his wife also went in; they heard a
gunshot and then left.
Senior
Deputy Gomez testified as the prosecution’s gang expert. He was familiar with the Okie Bakers, which, the
parties stipulated, was a criminal street gang within the meaning of the Penal
Code. The gang’s primary activities were
murder, attempted murder, illegal possession of guns, drug sales, carjacking,
and drive-by shootings.
Gomez
explained that the Okie Bakers were a Southern Hispanic street gang. Southern Hispanic gangs claim allegiance to
the Mexican Mafia prison gang. Southern
Hispanic gang members “are the soldiers for the Mexican Mafia.†Although Southern gang members are all over
now because of family members being incarcerated in Northern California, the
traditional stronghold for Southern Hispanic gangs is the city of McFarland on
south. The color blue and number 13 are
associated with Southerners. Nortenos
are the arch rival of Southerners. They
claim their allegiance to the Nuestra Familia prison gang, with that group
calling the shots for all the foot soldiers, which are called Nortenos or
Northerners. The geographic location for
Nortenos is Delano on north. The color
red and number 14 are associated with Northerners.
Gomez
explained that throwing gang signs at someone is a form of disrespect. In addition, “scraps†or “scrapas†is a term
used by Northerners to disrespect Southern Hispanic gang members. Especially with Hispanic gangs, respect is
somewhat synonymous with fear. The level
of respect “is a big deal.†Gomez
further explained that a moniker is a nickname gang members use to identify
themselves. Coronado’s moniker was
Clover, Torres’s moniker was Cruiser, and Rivas’s monikers were Scooby, Little
Scooby, and Scoobs.
In
researching defendants, Gomez reviewed offense reports, field interview cards,
street checks, photographs, bookings, tattoos, and associates, and also had
conversations with defendants. Based on
these items (which Gomez detailed for the jury), together with his training and
experience, Gomez opined that on September 26, 2009, defendants were members
of, and active participants in, the Okie Bakers criminal street gang.
Gomez also
reviewed the reports and information generated in the current case. In answer to hypothetical questions tracking
the evidence presented by the prosecution, Gomez opined that the shooting in
this case was done in association with the Okie Bakers street gang, since there
were three gang members involved. Gomez
further opined the shooting was for the benefit of the gang, because attempting
to kill or shoot a gang rival instills fear in the witnesses and citizens in
the area and the community, which in turn makes citizens in the community
reluctant to report illegal activities of the gang. Gomez additionally opined that the shooting
furthered the criminal activity of the gang by making citizens scared to report
the illegal activities of the gang.
In Gomez’s
opinion, possession of a firearm by an Okie Bakers member, who is a felon
prohibited from possessing a firearm, would also be for the benefit of, and in
association with, the Okie Bakers criminal street gang, because possessing a
firearm that is ready for use offensively to shoot somebody benefits the gang
when attacking rival gang members.
Possession of a firearm also promotes, furthers, or assists gang members
in criminal conduct, because being known for carrying and using weapons and not
being afraid to use violence against citizens or rival gang members allows the
gang to continue with its criminal activity.
Similarly, possessing ammunition would benefit the gang because it could
be placed into a firearm, and a firearm could then be used to shoot a rival
gang member or citizens. That act would
further the gang’s criminal activity by its effect on the gang’s
reputation. Using firearms instills fear
in the community, which in turn makes citizens not want to report the gang’s
illegal activities.
B.
DEFENSE EVIDENCE
Alejandro
Serrano was in the backyard with his girlfriend when he heard yelling coming
from the front yard. René was not in the
backyard at the time. Alejandro quickly
went out to the front through the garage.
Ricardo was right behind him.
Once Alejandro got out front, he saw a bunch of males “kind of
scuffling.†Defendants were three of the
four or five men involved. Then he heard
the gunshot, which sounded like it came from a .22-caliber handgun, and
“everybody just scattered.†The muzzle
flash came “from the scuffling.†During
the time he was in the backyard, Alejandro did not hear any insults or anything
about gang activity. He did not see any
kind of weapon.
Harlan
Hunter testified as a gang expert. He
reviewed various materials, including employment records and police reports,
with respect to Coronado. Based on
everything he reviewed, Hunter opined that on September 26 and 27, 2009,
Coronado was not a member of the Okie Bakers, and had, in fact, gotten out of
the gang in early to mid-2007. Hunter
did not conduct any review with respect to Torres or Rivas.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE
Rivas and
Torres contend the evidence is insufficient to sustain their convictions for
possession of a firearm by a felon. We
agree.
The
standard of review by which we assess such a claim applies regardless of
whether the prosecution relies primarily on direct or on circumstantial
evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) The test of sufficiency of the evidence is
whether, reviewing the whole record in the light most favorable to the judgment
below, substantial evidence is disclosed such that a reasonable trier of fact
could find the essential elements of the crime beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which
is “reasonable, credible, and of solid value.â€
(People v. Johnson,
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(
425.) An appellate court must not
reweigh the evidence (People v. Culver (1973)
10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (
353, 367). “If the circumstances, plus
all the logical inferences the jury might have drawn from them, reasonably
justify the jury’s findings, our opinion that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of
the judgment. [Citations.]†(People
v. Tripp (2007) 151 Cal.App.4th 951, 955.)
“Before the
judgment of the trial court can be set aside for insufficiency of the evidence
to support the verdict of the jury, it must clearly appear that upon no
hypothesis whatever is there sufficient substantial evidence to support
it. [Citation.]†(People
v. Redmond (1969) 71 Cal.2d 745, 755.)
However, “[e]vidence which merely raises a strong suspicion of the
defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a
possibility, and this is not a sufficient basis for an inference of fact. [Citations.]â€
(Ibid.)
Possession of a Firearm by a
Felon
“The
elements of the offense proscribed by section 12021 are conviction of a felony
and ownership, possession, custody or control of a firearm. [Citations.]
Knowledge is also an element of the offense. [Citation.]â€
(People v. Jeffers (1996) 41
Cal.App.4th 917, 922; accord, People v.
Snyder (1982) 32 Cal.3d 590, 592.)
“No specific criminal intent is required, and a general intent to commit
the proscribed act is sufficient to sustain a conviction. [Citations.]â€
(People v.
elements of unlawful possession may be established by circumstantial evidence
and any reasonable inferences drawn from such evidence. [Citations.]â€
(People v. Williams (1971) 5 Cal.3d
211, 215.)
It is
undisputed there was no evidence Rivas or Torres actually physically possessed
a firearm on the night in question.
prior to Coronado pulling the gun from his waist area and firing, that there
was even a gun at the party.
Accordingly, we must determine whether there was substantial evidence
Rivas or Torres constructively possessed the gun, or aided and abetted
Coronado’s possession of it.
“Constructive
possession occurs when the accused maintains control or a right to control the
contraband; possession may be imputed when the contraband is found in a place
which is immediately and exclusively accessible to the accused and subject to
his dominion and control, or to the joint dominion and control of the accused
and another. [Citation.]†(People
v. Williams, supra, 5 Cal.3d at p. 215.) “The accused also has constructive possession
of [contraband] that [is] in the physical possession of his agent or of any
other person when the defendant has an immediate right to exercise dominion and
control over the [contraband].
[Citations.]†(
71.) “The inference of dominion and
control is easily made when the contraband is discovered in a place over which
the defendant has general dominion and control:
his residence [citation], his automobile [citation], or his personal
effects [citation]. However, when the
contraband is located at premises other than those of the defendant, dominion
and control may not be inferred solely from the fact of defendant’s presence,
even where the evidence shows knowledge of the presence of the
[contraband] .…†(
579, 584.)
A
conviction for possession of contraband may also be upheld where there is
evidence the defendant aided and abetted another in committing the crime of
possession. (People v. Francis, supra, 71 Cal.2d at p. 72.) “A ‘person aids and abets the commission of a
crime when he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging,
or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.’ [Citation.]â€
(People v. Marshall (1997) 15
Cal.4th 1, 40.) “Aiding and abetting
does not require participation in an agreement to commit an offense, but merely
assistance in committing the offense.
[Citation.]†(
433, fn. omitted.) Factors that may be
considered in determining aiding and abetting include presence at the crime
scene, companionship, and conduct before and after the offense. (In re
Juan G. (2003) 112 Cal.App.4th 1, 5.)
However, mere presence at the scene of an offense is not sufficient,
standing alone, to sustain a conviction.
(People v. Miranda (2011) 192
Cal.App.4th 398, 407.)
name="_ftnref16" title="">[16]
Leaving
aside the gang expert’s testimony, the evidence in the present case showed
Rivas, Torres, and Coronado attended the party together and, after the
shooting, fled at the same time, at least according to some witnesses. They sat at the same table during the party,
and were together when Rivas confronted Ricardo in the garage. At the time the shot was fired, Rivas was
fighting with Daniel Serrano. Torres was
an arm’s length from Coronado when the latter pulled the gun; Torres did
nothing.
The
foregoing does not support a reasonable inference Rivas or Torres knew Coronado
possessed a firearm, let alone that either of them had the right to exercise
dominion and control over it. Similarly,
no conduct by Rivas or Torres assisted Coronado in achieving his unlawful
possession of the gun. (See
117.) Although one gang member’s “act of
standing backup†can, depending upon the circumstances, reasonably be inferred
to have aided and encouraged another gang member’s commission of a crime (see
Cal.4th 254, 296), no such inference can reasonably be drawn from Torres’s
conduct here because there is no evidence he or anybody else knew Coronado was
armed. We might speculate Torres and Rivas were aware of the gun’s presence; it is
also possible either or both had the
right to exercise dominion and control over it should they wish to do so. However, “a mere possibility is nothing more
than speculation†(People v. Ramon (2009)
175 Cal.App.4th 843, 851), and “‘speculation is not evidence, less still
substantial evidence.’
[Citations.]†(
735.) As the California Supreme Court
has stated, “We may speculate about
any number of scenarios that may have occurred on the [evening] in
question. A reasonable inference,
however, ‘may not be based on suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work. [¶] …
A finding of fact must be an inference drawn from evidence rather than … a mere
speculation as to probabilities without evidence.’ [Citations.]â€
(People v. Morris (1988) 46
Cal.3d 1, 21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 & 545,
fn. 6.)
In arguing
the evidence is sufficient to uphold the convictions, the Attorney General
points to the testimony of Senior Deputy Gomez, the People’s gang expert. Gomez described, in part, a Bakersfield
Police Department report, dated December 4, 2006, of a case in which Coronado
was found driving a vehicle. He had
blood on his shirt. Torres, one of four
passengers in the vehicle, had a loaded handgun in his waistband. When asked if anyone else inside the vehicle
knew he had the handgun, Torres related that Coronado and the other male
passenger both knew, because “he didn’t want to do them dirty.†Coronado and Torres both admitted being Okie
Bakers. Gomez explained that “[d]oing
somebody dirty†is disrespecting them by not letting them know there is a
firearm in the vehicle or in the person’s possession.
Gomez also
described an offense report, dated August 20, 2005, in which a sheriff’s deputy
made a traffic stop on Torres and two other subjects. One of the subjects had a firearm on his
person. Gomez found this significant
because Torres, a self-admitted Okie Baker, was in Okie Bakers territory with
two other subjects, one of whom was armed.
Gomez explained that the firearm was capable of being passed around and
used by the other gang members. It was
readily available.
In
addition, Gomez described a sheriff’s report, dated May 8, 2001, in which Rivas
was identified as having handed off a handgun to someone who then shot Tommy
Tillery. Gomez found this significant
because Tillery was beating up one of the subjects who was involved. Handing off a firearm to another person so
that person could shoot the victim who was winning the assault showed the three
subjects were working together to get the victim, Tillery. Gomez explained that “to back up somebodyâ€
means to offer protection to a fellow gang member. If that person gets in a fight, the other
gang member is expected to back him up because not doing so would be disrespecting
the person.
As the
Attorney General acknowledges, the jury was admonished at the outset of Gomez’s
testimony that Gomez was going to testify “regarding gang and gang activity as
to one or all of the defendants,†and that his testimony was “going to go to
the defendants as to their gang activity in this case.†During the course of jury instructions,
jurors were told:
“Deputy
Marvin Gomez testified in part for the People for a limited purpose; that is,
as a gang expert.[
name="_ftnref17" title="">[17]]
“
to the gang enhancements alleged in the Information in Counts 1 through 4
for Joe Coronado; Counts 1 through 3 for Hilario Torres; and Counts 1 through 3
for Allen Rivas; and the alleged
violation of Penal Code Section 186.22(a), in Count 5, for each defendant.
“
officer, that is, certain police reports, field interview cards, booking
sheets, tape recorded statements, personal contacts, and/or transcripts
involving alleged criminal conduct attributed to other individuals or to the
defendants were not being offered for the truth of the matter stated therein.
“
basis upon which the officer arrived at his opinions.
“The
opinions of the deputy and the information upon which he relies is not being
offered to show that the defendants are of bad character or have a disposition
to commit the crimes charged in the information.
“
limited purpose for which it is being offered.†(Italics added.)
The
offense-report information recited by Gomez was not admitted, nor was it
admissible, for the truth of the matters contained in the reports. “[A] witness’s on-the-record recitation of
sources relied on for an expert opinion does
not transform inadmissible matter into ‘independent proof’ of any fact. [Citations.]â€
(People v. Gardeley (1996) 14
Cal.4th 605, 619, italics added; see People
v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
Moreover,
Gomez’s testimony produced nothing more than speculation as to what possibly
occurred on the night of the party. Even
if we were to draw an inference from it that Rivas and Torres may have known
Coronado possessed a firearm, this is insufficient since, even assuming
knowledge, the testimony does not give rise to an inference they had the right
to exercise dominion and control over the gun.
That the gun may have been capable
of being passed around and used by all is simply not enough.
Cal.App.4th 1410 (Sifuentes) is
instructive. In that case, police found
Sifuentes and Lopez — both convicted felons — in a motel room. When the officers entered, Sifuentes was
lying on top of the bed nearest the door, while Lopez was kneeling on the floor
on the far side of the second bed. A
loaded handgun was subsequently found under the mattress next to where Lopez
had been kneeling. (Id. at pp. 1413-1414.)
At trial, a
gang expert testified, based on arrest reports, field interviews, defendants’
past association with other gang members, and other police contacts and
information, that Sifuentes and Lopez were active participants in Santa Ana’s
Delhi criminal street gang on the day of their arrest. The expert based his opinion on several prior
incidents in which defendants possessed weapons. This information was offered as foundation
for the expert’s opinions, not to prove defendants possessed a weapon on the
current occasion. (Sifuentes, supra, 195
Cal.App.4th at pp. 1414-1415 & fn. 2.)
The expert further testified “that weapons, particularly guns, play a
prominent role in the gang subculture.
[The expert] defined a ‘gang gun’ as a gun that is passed freely among
gang members to use in their criminal endeavors. He explained that aside from ‘certain
restrictions,’ a gang gun is ‘accessible’ to all gang members ‘[a]t most
times.’ Gang members ‘frequently and
almost are [sic] required to share
information about the possession of gang guns and where they’re kept.’ A gang member possessing a gun will inform
other gang members he has a firearm for two reasons: (1) possession of a gun garners respect
within the gang for the possessor, and (2) to alert other gang members who
are subject to probation or parole terms that prohibit them from knowingly
associating with anyone carrying a gun.â€
(Id. at p. 1415.) The expert further opined that a gang’s
possession of guns promoted, furthered, or assisted its felonious criminal
conduct, because possession facilitated its criminal endeavors and enhanced its
reputation. He asserted that a gang
member’s mere possession of a gun “‘at the ready’†benefits the gang, but
admitted he had no information that Lopez kept a gun for the gang, and that no
direct evidence tied Lopez’s gun to other gang members or to its use by the
gang. (Id. at p. 1416.)
Sifuentes
and Lopez were convicted, inter alia, of possession of a firearm by a
felon. (Sifuentes, supra, 195
Cal.App.4th at p. 1413.)
Sifuentes’s conviction was obtained based on the doctrine of
constructive possession. (
insufficient to support the requisite conclusion he had the right to control
the firearm discovered near Lopez. (
“The
prosecution’s gang expert did not testify any
gun possessed by a gang member automatically constitutes a gang gun to be
shared with all other gang members.
Rather, the gang expert explained gangs use gang guns offensively and
defensively to commit crimes and assault their rivals. Under those circumstances, firearms are
freely shared and therefore gang members will know who among them has
possession of these weapons. There was
no evidence, however, the gun officers discovered had ever been used in this
manner.
“Even
assuming the firearm Lopez possessed fell into the gang gun category, no
evidence showed Sifuentes had the right to control the weapon. The gang expert did not testify all gang
members always have the right to control a gang gun, whether kept in a safe
place or held by another gang member.
Rather, the expert testified a gang gun was ‘accessible’ to gang members
‘at most times,’ but did not elaborate.
When asked if ‘every single [gang] member’ could use the gang gun, the
expert responded ‘certain restrictions’ applied, but failed to describe the
nature of those restrictions. Based on
the expert’s testimony, it also may be that gang members have no right to
control a firearm held by a compatriot where no offensive or defensive actions
are undertaken. That was the case here,
where Sifuentes and Lopez simply occupied a motel room with two females. There was no evidence defendants had used or
were about to use the gun offensively or defensively. Consequently, there is no basis to conclude
Sifuentes had the right to control the weapon.
“The
Attorney General argues the jury could have relied on information that in 1997
Sifuentes gave his female companion a firearm to hide in her purse, and she
later told an investigator that Sifuentes always carried a weapon. [The expert] testified about this incident
based on a 1997 police report, which reported the female companion’s
statement .… Although the trial
court overruled Sifuentes’s hearsay objection, the court did not admit the
female companion’s statement for its truth, but as part of the basis for the
expert’s opinion Sifuentes was an active participant in the Delhi gang. [Citation.]
We therefore may not consider the hearsay statements of Sifuentes’s
female companion in assessing whether Sifuentes constructively possessed the
firearm Lopez attempted to hide.
“The
Attorney General also claims the expert testified the gun was ‘jointly
possessed,’ but no evidence supports this assertion.… The prosecutor did not elicit, and the expert
did not testify that a hypothetical individual in Sifuentes’s position would
have the right to control the firearm discovered under the mattress.
“The
prosecutor failed to elicit from the expert any substantial evidence Sifuentes
had the right to control the firearm.
The expert did not testify all gang members had the right to control
communal gang guns, assuming this firearm fell into that category. Rather, as discussed above, he testified
certain restrictions applied concerning ‘access’ to a gang gun and did not
explain these restrictions or whether he equated access with a right to
control. Nor did the expert link
Sifuentes to the particular firearm found next to Lopez.
“Thus,
the evidence falls far short of providing substantial evidence Sifuentes had
the right to control the firearm in this case.â€
(Sifuentes, supra, 195
Cal.App.4th at pp. 1417-1419, fns. omitted.)
In the
present case, the Attorney General seeks to distinguish Sifuentes. She says: “First, the incident reports relied on by
Deputy Gomez in forming his opinion, established that these appellants had a
propensity to share gang guns in the past.
Second, the incident reports further established that the Okie Baker
gang and these appellants considered it a sign of disrespect not to inform other
gang members that a fellow gang member was armed with a firearm. Third, the evidence in this case indicates
that appellants acted in concert with one another by sitting together during
the party, accompanying each other to the garage when confronting Ricardo
Serrano about use of gang signs, accompanying each other to the front of the
house where the altercation and shooting occurred and, immediately after
Coronado shot René Serrano, all three appellants fled the scene of the
shooting. [¶] Thus, the jury was [sic] could reasonably infer that appellants had knowledge of, and
joint or constructive possession of the gun.
The above evidence, taken together, supports a logical inference, drawn
from circumstantial evidence, that appellants knew Coronado possessed a
firearm, and that it was available for their use if needed, and that he would
use it if necessary to protect fellow gang members, to wit, Rivas and
Torres.â€
The
Attorney General overstates the effect of Gomez’s testimony, and blurs the line
between permissible and impermissible use of the incident reports.
defendants had a propensity to share gang guns, there is nothing to suggest the
gun possessed by Coronado was such a gun as opposed to his personal weapon, or
that the gun was immediately available to Torres and/or Rivas. Gomez did not testify that if one Okie Baker
possesses a gun, his fellow gang members all have the right to exercise
dominion and control over it. That such
a gun is “capable of being passed around†does not change this. Moreover, knowledge that a companion who is a
fellow gang member possesses a firearm does not constitute the right to
exercise dominion and control over that firearm. Defendants’ actions at the party do not alter
this fact.
title="">[19]
The
evidence adduced at trial is insufficient to establish that Torres and/or Rivas
had possession, whether actual or constructive, of a firearm on the night in
question, or that they aided and abetted Coronado’s possession of a
firearm. Accordingly, the judgments in
Kern County Superior Court case Nos. BF129529B and BF129529C must be
reversed. Retrial in those cases is
barred. (People v. Anderson (2009) 47 Cal.4th 92, 104 & cases
cited.) Our disposition renders Torres’s
and Rivas’s remaining contentions moot.
II. BATSON/WHEELER
CLAIM
At trial,
defendants jointly brought a Batson/Wheeler
motion on grounds that six of the prosecutor’s seven peremptory challenges were
used against women, of whom four were Hispanic females. The trial court found that the defendants had
stated a prima facie case of improper use of peremptory challenges and, after
explanation by the prosecutor, found that the prosecutor excused the jurors for
race-neutral reasons. Coronado alone now
challenges the prosecutor’s explanation for excusing one of those prospective
jurors, Doris O., for failing to satisfy Batson/Wheeler
requirements. The six other challenges
are not questioned in this appeal. We
find no violation of Batson/Wheeler.
“The
purpose of peremptory challenges is to allow a party to exclude prospective
jurors who the party believes may be consciously or unconsciously biased
against him or her.†(
13, 17.) Peremptory challenges may
properly be used to remove prospective jurors believed to entertain specific
bias, i.e., bias regarding the particular case being tried or the parties or
witnesses thereto. (Wheeler, supra, 22 Cal.3d
at p. 274.) “There is a rebuttable
presumption that a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination. [Citations.]†(People
v. Bonilla (2007) 41 Cal.4th 313, 341.)
However, “‘[a] prosecutor’s use of
peremptory challenges to strike prospective jurors on the basis of group bias —
that is, bias against “members of an identifiable group distinguished on
racial, religious, ethnic, or similar grounds†— violates the right of a
criminal defendant to trial by a jury drawn from a representative cross-section
of the community under article I, section 16 of the California
Constitution. [Citations.] Such a practice also violates the defendant’s
right to equal protection under the Fourteenth Amendment to the United States
Constitution. [Citations.]’ [Citation.]â€
(People v. Bell (2007) 40
Cal.4th 582, 596; see Batson,
“The United
States Supreme Court has … reaffirmed that Batson
states the procedure and standard to be used by trial courts when motions
challenging peremptory strikes are made.
‘First, the defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose.†[Citations.] Second, once the defendant has made out a
prima facie case, the “burden shifts to the State to explain adequately the
racial exclusion†by offering permissible race-neutral justifications for the
strikes. [Citations.] Third, “[i]f a race-neutral explanation is
tendered, the trial court must then decide … whether the opponent of the strike
has proved purposeful racial discrimination.â€
[Citation.]’ [Citation.]†(People
v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California, supra, 545 U.S. 162, 168.) The California Supreme Court has “endorsed
the same three-part structure of proof for state constitutional claims. [Citations.]â€
(People v. Bell, supra, 40
Cal.4th at p. 596, see Wheeler,
With these
principles in mind, we turn to the case before us.
Factual Background
Rosa H.,
Debra R., and Linda B. were among the first 18 prospective jurors examined
during voir dire. They provided the
following information in response to questions from the court. Rosa H. related
that she was a housewife with two children in high school. When she lived in Los Angeles, she had a
friend or friends whom the police accused of being in a Hispanic gang. Rosa H. did not believe they were in a gang. She had no feelings about gangs, and stated
she could set aside what happened in Los Angeles and judge the facts of this
case solely on the evidence.
Debra R.
related that she worked in the receiving department of a shoe business and had
three children, all over age 18. Neither
she nor anyone close to her had been the victim of gang violence or accused of
being in a gang, nor had she witnessed or investigated a gang crime.
five years earlier, but felt she was treated fairly and it would not affect her
ability to be fair to both sides. In
addition, her husband had gotten into a fight with his brother-in-law over 10
years earlier. He was charged with
attempted murder, but after investigation, the charges were dropped. She did not have any problem with law
enforcement or the court system as a result.
Linda B.
related that she was retired. Her three
grandchildren were all in school. Approximately 10 years earlier, her friend
was assaulted, and the friend’s car vandalized, in what may have been a
gang-related incident. Linda B. believed
she could judge the present case fairly and solely on the evidence
presented. In addition, her nephew had
been stabbed in a street fight about 10 years earlier. Linda B. stated that nothing about the
incident would affect her ability to be fair to both sides. Her grandson was charged with assault as a
juvenile three years earlier. He was
acquitted. Although she felt he was
fairly treated by law enforcement, she felt he was not fairly treated by the
prosecuting attorney. This took place in
Kern County. She was positive she would
not hold this against the prosecutor in the present case.
The
prosecutor did not question any of these prospective jurors individually. He used his first peremptory challenge to
excuse Rosa H., and his second peremptory challenge to excuse Debra R.
After the
prosecutor and defendants (acting jointly) had each excused three prospective
jurors, Rafaela O. and Aida S. were among those examined by the court. Rafaela O. related that she was divorced and
had two adult children. Although neither
she nor anyone close to her had been the victim of gang violence or accused of
being in a gang, nor had she witnessed or investigated a gang crime, her home
and vehicles had been broken into multiple times, and a relative of hers was
stabbed almost 30 years earlier.
Sometimes she thought he had it coming to him, because he was “one of
those kind of kids.†She stated that
none of the incidents would have any bearing on how she viewed this case,
although she conceded that, if she had a chance to extend leniency to the
person who stabbed her relative because her relative deserved it, she
“[p]ossibly†would do so. In addition,
her brother-in-law was arrested for selling narcotics and drug use. She “guess[ed]†he was fairly treated by law
enforcement, explaining that she felt they “should have kept him longer.†The incident would not affect her ability to
be fair to both sides.
Aida S.
related that she was a registered nurse who did recovery room nursing. In the course of her employment, she had seen
a lot of gunshot and stab wounds. She
stated that if there was testimony about some sort of wound or injury, she
would take the evidence as it was presented and not second-guess what someone
else did or how he or she treated the problem.
Neither she nor anyone close to her had been the victim of gang violence
or accused of being in a gang, nor had she witnessed or investigated a gang
crime.
The
prosecutor questioned Rafaela O., but not Aida S., individually. He used his fourth peremptory challenge to
excuse Linda B., his fifth peremptory challenge to excuse Rafaela O., and his
sixth peremptory challenge to excuse Aida S.
After the defense followed each of the prosecutor’s strikes with a joint
excusal, the prosecutor accepted the panel as constituted at that time. The defense then jointly exercised another
peremptory challenge, after which seven more prospective jurors were called for
questioning. Doris O. was among this group,
although she was not seated as one of the twelve in the jury box.
Doris O.
related that she was a yard supervisor for the Wasco School District. She was married, had four children, one of
whom was still in high school, and six grandchildren. According to her answers to the questions
contained in the confidential questionnaire, neither she nor anyone close to
her had been the victim of gang violence or accused of being in a gang, nor had
she witnessed or investigated a gang crime.
She answered negatively when counsel for Rivas asked her if she believed
she was a god. She believed she paid
attention to everything that had happened during trial to that point, and she
never “started nodding.â€
name="_ftnref21" title="">[21] Counsel for Rivas continued to question Doris
O. as follows:
“Q: … [D]o you
think that it is possible for that thing to fall off that – the emergency
lighting fixture on that wall, to fall off in two minutes and kill Mr.
(1776491?)
“A: No.
“Q: Okay. [¶] Is
it likely that that’s going to happen?
“A: No.
“Q: But it is
possible that it could happen, correct?
“A: Yes. I mean, yeah.
“Q: All
right. Now, the Judge is going to tell
you what the standard is that he needs to meet in order to prove his case.
“A: Okay.
“Q: Now, if it
was a civil case, it would be a preponderance of the evidence. Fifty percent lean a little bit, and you get
yourself a verdict, right?
“A: Right.
“Q: If they
wanted to take your kids away from you –
“A: Uh-huh.
“Q: -- it’s clean
and convincing evidence. It’s a higher
standard.
“A: Okay.
“Q: If you were a
god, it goes beyond all doubt.
“A: Right.
“Q: Because God
is all knowing.
“A: Right.
“Q: For criminal
cases, beyond a reasonable doubt. The
highest standard in law.
“A: Okay.
“Q: You buy that?
“A: Yes.
“Q: Why?
“A: Because
that’s what the Judge will tell me.
“Q: And the Judge
tells you anything that has to do with what?
“A: The law.
“Q: The law. [¶]
Now, who decides what the facts are in this case?
“A: The
Judge? Or no.
“Q: No. [¶]
Let the record reflect I was nodding my head vigorously. [¶]
No. You do that.
“A: I do that?
“Q: Yes. That’s why we’re picking 12 jurors.
“A: Okay.
“Q: You become
the judges of fact. [¶] Do you understand that?
“A: Okay.
“Q: You have a
problem with that?
“A: No.â€
The prosecutor then questioned Doris.
O. and asked whether she watched over children when they went out on
recess. She responded that she had been
a yard supervisor for 18 years at different schools in Wasco. Presently, the children were kindergarten
through sixth grade. When the prosecutor
asked if she ever watched over older children, “like seventh, eighth grade,
high school,†she responded that she had before, but not high schoolers.
After the
parties passed for cause, the prosecutor accepted the panel of 12 jurors four
times. After the defense’s next joint
strike, Doris O. was moved into the jury box.
The prosecutor immediately excused her.
Shortly after, court adjourned for the weekend.
The
following Monday morning, at the outset of the next court session, counsel for Rivas brought a Batson/Wheeler motion on behalf of the defendants jointly on the
ground that six of the prosecutor’s seven peremptory challenges were used
against women, of whom four (Doris O., Debra R., Rosa H., and Rafaela O.) were
Hispanic females.
name="_ftnref22" title="">[22] The trial court noted that the prosecutor had
also excused a Hispanic male.
After the
trial court outlined the analytical steps of a Batson-Wheeler motion and a brief summary of requirements of the
first step, the trial court found the motion was timely, and that a prima facie
showing had been made. Accordingly, it
asked the prosecutor for an explanation of his strikes against females. This ensued:
“MR.
LOUIE [prosecutor]: Okay.
“[Rafaela
O.] stated she had a relative who was stabbed that had it coming to him.… [A]lthough every other person who I talked to
about that said that that wouldn’t be right and that’s not something that they
would consider, … she continued to maintain that belief. And that’s the reason why I show [
“[Doris
O.] works with children, seventh and eighth graders, in Wasco. I know Wasco to be an area that has Hispanic
gang populations, especially at that age group.
“She
did mention that. She did mention
something about seventh and eighth graders and kids being involved in that --
in that type of activity, which is the reason why I struck her.
“[Rosa
H.] … stated that her friends were accused of being in a gang in L.A., a --
Hispanic gangs, and the police accused the friends of her wrongly of being in
that gang. I think she might have some
bias … against the police for accusing her and her friends of being in a gang
when they really weren’t.
“That
was [Rosa H.]
“[Debra
R.] had a misdemeanor conviction for trespassing. I also noticed that she had … what looked to
be a fairly large, yet faded, so it was probably old, tattoo, of some flowers
and roses around her left wrist.
“The
main reason was because of the misdemeanor for trespassing that I struck her.
“[Linda
B.] stated … that her grandson was not fairly treated at juvenile. Again, that shows some bias or prejudice
against law enforcement and the Court system.
Although she, I do not believe, is Hispanic.
“[Aida
S.] is not Hispanic, either, but she is a nurse, and she has seen gunshot
wounds. Her information on gunshot
wounds and how things … such as that are treated and injuries involved with
that, which is why I struck her.
[¶] … [¶]
“THE
COURT: All right. Miss Kim [counsel for Coronado], any
comments?
“MS.
KIM: No, Your Honor.
“THE
COURT: Mr. Carter [counsel for Torres]?
“MR.
CARTER: … [R]egarding [Aida S.], … I
think the D.A. himself went through a process of trying to say that she would
ignore what she knows and she would listen to the testimony on the stand. That she would rely on what was presented to
her on the stand, and she agreed with that.
[¶] … [¶]
“As to
the trespass misdemeanor, I’m not quite sure why misdemeanor trespass indicates
bias. That … was on [Debra R.]…. [M]y recollection was we had at least one or
perhaps two males who also mentioned they had misdemeanor trespass.… So I don’t recall exactly what happened to
them along the way, but it doesn’t seem to me that misdemeanor trespasses in
the past is any reason to show bias on [Debra R.’s] part.
“… I
was unclear as to [Rafaela O.]. Now, she
was the one that had the stabbed relative, and she felt he might have deserved
it. I’m not sure how that bias is [
“As to
[Doris O.], I believe she had indicated she mostly dealt with the younger
groups of children; that she had, in the past, done some junior high. I believe when she indicated that’s when they
mostly got into -- started being approached by the gangs and that becoming a
problem. But she no longer -- but she
dealt mostly with the young people. She
may have indicated there was -- they had started to be influenced by gangs in
the later years, but, again, just because she lives in Wasco, may have, and
teaches in school, I’m not sure where the bias comes from. Just the fact that she knows about gangs in
Wasco, just I think the statement by the District Attorney that he knows that
there are gang problems in Wasco, I’m not sure that’s sufficient cause to show
that everybody from Wasco ought to be excluded.
“As to
… [Rosa H.], the grandmother who felt that her grandchild was wrongly
accused. Again, … since there was no
discussion of how that might influence her, … I don’t recall myself … [Rosa
H.’s] perspective on it, since I guess we did discuss it with her and it didn’t
rise to a level of cause to excuse her.
“It
seems to me there’s really no indication of what that bias may be. It’s at this point, I guess, just speculation
of a potential bias. I’m not sure.
“But
other than that, I have no further comments, Your Honor.
“THE
COURT: Mr. Revelo [counsel for Rivas]?
“MR.
REVELO: I believe that [Doris O.] said
that she worked with children that were not high schoolers and not seventh,
eighth grade. So I don’t think … that’s
accurate.
“There
was anothe
| Description | On October 28, 2009, a consolidated information was filed in Kern County Superior Court, charging defendants Allen Rivas, Hilario Torres, and Joe Coronado, Jr., with attempted premeditated murder (Pen. Code,[1] §§ 187, subd. (a), 189, 664; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). Coronado was also charged with being a felon in possession of ammunition (former § 12316, subd. (b)(1); count 4).[2] As to count 1, it was alleged Coronado personally and intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)), and, as to Rivas and Torres, that a principal in the commission of the offense so acted (id., subds. (d) & (e)(1)). As to count 2, Coronado was alleged to have personally inflicted great bodily injury (§ 12022.7). It was further alleged, as to counts 1 through 4, that defendant(s) charged therein committed the crime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Last, it was alleged Rivas and Torres each had previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). |
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