P. v. Ruiz
Filed 7/3/12
P. v. Ruiz CA4/1
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
GILBERT CHICHI RUIZ,
Defendant and
Appellant.
D059387
(Super. Ct. No. FVI901609)
APPEAL from a judgment of the Superior Court of
Bernardino County, Miriam I. Morton, Judge. Judgment affirmed as modified.
Gilbert Chichi Ruiz appeals from a
judgment entered upon his conviction for the
Rafael Mercado and Ryan Espinoza (counts 1, 2), assaulting these individuals
with a deadly weapon (counts 3, 4), and street terrorism (count 5). The jury found true that: (1) Ruiz personally used a knife in committing
counts 1, 2 and 5; (2) promoted a criminal
street gang in committing counts 1 to 4; and (3) personally inflicted great
bodily injury in counts 1, 3 and 5.
Ruiz contends: (1) the evidence did not support the gang
enhancements or the counts for attempted voluntary manslaughter; (2) the trial
court improperly ordered him to pay $150 for court appointed attorney fees; and
(3) the trial court should have stayed the consecutive sentence imposed for
count 5, or, alternatively, should have stayed the four-month sentence on the
count 5 deadly weapon enhancement. We
reject his first contention, but agree that the $150 for court appointed
attorney fees must be stricken and that the sentence on count 5 must be stayed
under Penal Code section 654.
(Undesignated statutory references are to the Penal Code.)
FACTUAL AND PROCEDURAL BACKGROUND
On an evening in July 2009, Mercado
and his brother, Espinoza (together the victims), went to a birthday party in
Victorville. There were about 15 to 20
people at the party, including their sister, Vanessa Nunez, and her friend,
Brenda Schenck Bazan. Mercado met Ruiz
at the party and shook his hand.
Espinoza also remembered introducing himself to Ruiz and Ruiz's brother,
codefendant Richard Arreola (together defendants).
At one point, Brenda realized that
her camera and her friend's camera were missing. She asked the victims to accompany her to ask
people if they had seen the cameras.
When they approached Ruiz who was standing next to a truck containing
two male passengers and asked the men if they had seen two cameras, the men
replied, " 'We're
Mexican but we're not thieves.' " Brenda
told the men that she was not accusing them of stealing, but that she just
wanted to know if they had seen her camera.
After one of the men in the truck asked Brenda why Mercado and Espinoza
were with her, she realized that the men probably thought they were " 'trying to
start something.' "
Ruiz
suddenly stepped behind Brenda and hit Mercado in the head. At that point, everyone started screaming,
telling the defendants to leave. After
the defendants got in a car, someone threw a cup or a can at the
windshield. The defendants got out of
the car and charged the victims. The
four men fought for a couple of minutes, then the defendants ran to their car
and drove away. After the fight ended,
Espinoza realized that he and Mercado had been stabbed.
Tajma
Hassan, one of Brenda's friends, also attended the party. She claimed that after the victims arrived,
Arreola had a " 'weird look' " on his face suggesting anger. She observed the fight and saw the defendants
leave in a car. After the victims were
helped inside the house, she went outside and saw a cell phone and sunglasses
on the driveway that she picked up. She
took the items inside the house, went back outside and saw that defendants had
returned and heard the word " 'quete,' "
which meant gun. Both defendants got out
of the car, and Tajma saw something in Arreola's hand that looked like a
gun. Ruiz appeared to be looking for
something on the ground, so Tajma handed him the cell phone and glasses. Tajma then heard Ruiz state: " 'I'm
sorry. But you don't mess with,' " and
he said a word that Tajma could not remember.
Enrique
Bazan, Brenda's brother, accompanied her to the party. At one point in the evening, he became aware
of an altercation in the front yard and he watched four people fight for a
minute or two. After the victims were on
the ground, the defendants got in their car and left as others helped the
victims inside the house. He stated that
the defendants then came back because one of them had dropped their cell
phone. Both of the defendants got out of
the car and one of them yelled, "Where's my phone?" That person then said something to a neighbor
that was standing outside about " 'South Sider' " or
" 'I'm
from South Side.' " The neighbor
responded, " 'That's what I'm talking about,' " and
the men then touched hands. One of the
defendants picked something off the ground and then both defendants left. Enrique did not remember anything about the
neighbor other than the fact he was Hispanic.
The
victims were transported by helicopter to the hospital where Espinoza stayed
overnight and Mercado stayed for two weeks.
DISCUSSION
I.
A. General
Legal Principles
When a defendant challenges the
sufficiency of the evidence to support his conviction, we examine the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence from
which the jury could find the defendant guilty beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 576, 578.)
We must presume in support of the judgment the existence of every fact
the trier of fact could reasonably deduce from the evidence. (People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
Unless it is clearly shown that "on no hypothesis whatever is there
sufficient substantial evidence to support the verdict," we will not
reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) The same standard of review applies even
"when the conviction rests primarily on circumstantial
evidence." (People v. Kraft, supra,
at p. 1053.)
B
1. Facts
Los Angeles County Sheriff Deputy Julius Gomez testified
as a gang expert. He is familiar with
the Compton Varrio Largo gang and knows that the gang commonly uses several
abbreviations or symbols, including " 'CVL36,' "
" 'L' " or
" 'L36.' " CVL stands for Compton Varrio Largo and CVL36
is shorthand for "Compton Varrio Largo Compton's Finest." Some of the primary activities of the Compton
Varrio Largo gang include vandalism, vehicle thefts, grand thefts, burglary,
robbery, illegal firearms possession, narcotics sales, assaults with deadly
weapons, attempted murder and murder.
Deputy Gomez explained that "South Sider" was a
generic term representing all Hispanic gang members from Southern
California. Gang members in custody may
be South Siders who are aligned with the Mexican Mafia, or northerners who are
aligned with the " 'Nuestra Familia.' " The Mexican Mafia is a prison gang that
controls a lot of criminal activity inside and outside the prison system. Outside the prison system, the Mexican Mafia
wields its power and influence by taking a percentage of an aligned gang's
criminal enterprise and creating truces.
Because of this, street gangs based out of Los Angeles are expanding
into other states and countries with the hope of increasing their profits.
In
2008, Ruiz admitted his membership in the Compton Varrio Largo gang to law
enforcement officers. However, after the
incident, Ruiz stated that he had moved out of Compton and responded, " 'Yes and
no,' "
when asked if he was still an active CVL gang member. Arreola claimed to be an inactive member of
the San Gabriel Sangra gang.
Deputy
Gomez saw that Ruiz had the phrase " 'CVL36' "
tattooed on the inside of his left middle finger which signified his gang
membership. Ruiz also had the letters
" 'LA' "
tattooed on his chest and the back of his head, which is a tattoo commonly used
by Hispanic gang members in Los Angeles County to show their alliance with the
South Sider gang group and the Mexican Mafia.
Gomez noted that Ruiz had very short hair so that he could "proudly
display" his tattoo and warn others that he was a gang member aligned with
the South Siders and the Mexican Mafia.
However, at the time of trial, Ruiz's hair was much longer, and Deputy
Gomez believed that Ruiz grew out his hair to make the tattoo less noticeable
for his court appearances. Ruiz had the
number "13" tattooed behind his left ear to signify the letter
"M," the thirteenth letter in the alphabet, to show his allegiance to
the Mexican Mafia. Finally, the letters
" 'CPT' "
tattooed above Ruiz's right knee was an abbreviation for the City of Compton,
which is worn by gang members based out of the Compton area.
Deputy Gomez stated that respect plays a "very big
factor" within Hispanic gangs and that these gangs are very organized with
strict rules. Hispanic gangs may address
a person that has disrespected them with "a verbal admonishment all the
way to murder and everything in between."
When asked a hypothetical question matching the facts of this case,
Deputy Gomez opined that the acts benefited the gang in two ways, by elevating
the personal status of the perpetrator within the gang by showing his
willingness to commit violent crimes and elevating the gang as a whole. Deputy Gomez explained that gangs have been
expanding into different areas and that the willingness of a gang to intimidate
others and commit crimes outside its area in an effort to expand will benefit
the gang in the future. Deputy Gomez
further explained that one of the main goals of a criminal street gang is to
intimidate future witnesses and prevent them from notifying police about
criminal activity out of fear of gang
retaliation.
The prosecutor added to a hypothetical question that the
defendants were members of different gangs.
Based on this information, Deputy Gomez opined that the gang membership
ties between the two defendants "almost obligate[d] the other gang member
to actively participate" in the crime or risk being labeled a coward. He explained that the ramifications of not
participating in the crime could range from a verbal reprimand, to a physical
beating or murder. Thus, when one of the
defendants got out of the car to fight, the other defendant was obligated to
get out of the car and join the fight.
Accordingly, assuming the defendants were brothers, Deputy Gomez opined
that this made no difference in his determination of whether defendants
committed the crimes for the benefit of the gang.
Adding to the hypothetical that the crimes were committed
in San Bernardino County, which is away from Compton, Deputy Gomez opined that
this expansion opened up another area for gang criminal activities and put
everyone on notice in San Bernardino County that a Compton gang is committing
criminal acts in their area and there would be ramifications for resisting,
thereby enhancing their ability to commit future acts in that area. Even if no one at the party knew that Ruiz
was a member of CVL, Deputy Gomez opined that Ruiz's acts benefited Ruiz within
the gang by establishing him as someone who commits violent acts in a certain
area to promote his gang. Deputy Gomez
mentioned some people would understand that the " 'LA' "
tattooed on the back of Ruiz's head represented some sort of gang affiliation
and he did not believe that the tattoo meant Ruiz was a Los Angeles Dodgers fan
because of the other gang related tattoos on Ruiz's body.
In a hypothetical situation where after the stabbing, the
defendants returned to look for their cell phones with Arreola holding a gun in
his hand down to his side, Deputy Gomez believed these facts showed gang
members imposing their will on others and creating an atmosphere of fear and
intimidation to the other people at the party.
Even assuming Arreola did not have a gun, Gomez believed it was
"all pretty brazen that they would just come back and look for a cell
phone."
The day after the stabbing, sheriff's deputies searched
the home shared by defendants. They
collected several CDs from Arreola's room containing gang writing specific to
the Compton Varrio Largo gang and the symbol for the number 13 that stands for
the Mexican Mafia. They also obtained a
photograph from Arreola's bedroom depicting Arreola, Ruiz, and a man making a
hand gesture that appeared to depict the letters "C," "V"
and "L."
2. Analysis
Ruiz
contends the evidence did not show he committed the offenses "for the
benefit of, at the direction of, or in association with [a] criminal street
gang," and "with the specific intent to promote, further, or assist
in any criminal conduct by gang
members." (§ 186.22, subd. (b)(1).) Specifically, he asserts that nothing about
the crimes suggested they were gang related and the testimony from the
prosecution's gang expert that the crimes were gang related lacked factual
foundation, was speculative and thus not entitled to any weight.
We
review the sufficiency of the evidence to support enhancement allegations under
the same standard we apply to a conviction.
(People v. Wilson (2008) 44
Cal.4th 758, 806.) A jury may rely on
expert testimony about gang culture and habits to reach a true finding on a
gang enhancement allegation (People v.
Ferraez (2003) 112 Cal.App.4th 925, 930) and may reasonably rely on the
testimony of a single witness, unless the testimony is physically impossible or
patently false. (Evid. Code, § 411;
608.) We do not reweigh evidence or
determine if other inferences more favorable to the defendant could have been
drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
As
a threshold matter, Ruiz forfeited any argument regarding the gang expert's
opinion testimony by failing to lodge a timely objection below. (People
v. Gutierrez (2002) 28 Cal.4th 1083, 1140 [claim that impermissible expert
opinion was admitted was not preserved on appeal where no objection was lodged
at trial].) Nonetheless, to forestall a
possible habeas corpus petition based on counsel's performance, we will address
his contention on the merits.
The People can present expert testimony on criminal
street gangs to prove the elements of the gang enhancement. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) Additionally, a gang expert's response to a
prosecutor's hypothetical questions, although based on evidence-specific
assumptions, if properly based on evidence at trial, is admissible and not
rendered inadmissible by the fact, if true, that the testimony pertained to
ultimate issues to be decided by the trier of fact. (People
v. Vang (2011) 52 Cal.4th 1038, 1042-1049.)
At trial, the prosecutor posed hypothetical questions which asked Deputy
Gomez to assume various facts based on the evidence. The prosecutor's questions were proper and,
in response, Deputy Gomez, a gang expert, properly gave his opinions.
We
now turn to the evidence which suggested Ruiz's crimes were gang related. Ruiz bore tattoos signifying his alliance
with the South Siders, the Mexican Mafia and the Compton Varrio Largo
gang. After the incident, Arreola
claimed to be an inactive member of the San Gabriel Sangra gang; however,
sheriff's deputies found a number of CDs in Arreola's room containing gang
writing specific to the Compton Varrio Largo gang and the symbol for the number
13 that stands for the Mexican Mafia.
The
incident started when Brenda, accompanied by the victims, asked two men in a
truck and Ruiz if they had seen two cameras.
After the men replied that they were not thieves, Ruiz suddenly hit
Mercado in the head. Thereafter,
Espinoza heard one or both of the defendants say, " 'What's up,
homie?' "
in a challenging manner. Although it
initially appeared that the defendants would leave, someone then threw
something at their windshield. At that
point, the defendants got out of their car and charged the victims, apparently
stabbing them multiple times.
The defendants left, but immediately returned to look for
something they dropped. This time,
Arreola was armed with what looked like a gun.
One of the defendants made a gang reference to a neighbor about " 'South
Sider' "
or " 'I'm
from South Side.' " Another person
heard Ruiz state: " 'I'm
sorry. But you don't mess with,' " and
a word the person could not remember.
In light of this evidence, Deputy
Gomez's testimony was necessary to explain why a gang member would choose to
respond with violence when asked about missing cameras and after having an item
thrown at a windshield. Deputy Gomez
stated that respect is very important within Hispanic gangs and a gang member
may address a person that has disrespected him with violence. Deputy Gomez explained that such violence
benefits the gang by elevating the personal status of the perpetrator within
the gang, which then elevates the gang as a whole.
Deputy
Gomez also noted gang expansion into different areas as a means of increasing
gang profits. This trend may lead gang
members to intimidate others and commit crimes outside their area to help
expand the gang and thereby benefit the gang in the future. The crimes also put everyone on notice in San
Bernardino County that a Compton gang is committing criminal acts in their
area, demonstrate ramifications for resisting and thus enhance the ability of
the gang to commit future acts in that area.
Deputy Gomez explained that some people would understand that the " 'LA' "
tattooed on the back of Ruiz's head represented some sort of gang
affiliation. Even if no one at the party
knew that Ruiz was a member of the Compton Varrio Largo gang, Deputy Gomez
opined that Ruiz's acts benefited Ruiz within the gang by establishing him as
someone who commits violent acts in a certain area to promote his gang.
Based
on this testimony, the jury could have reasonably inferred that Ruiz committed
the crimes for the benefit of a criminal
street gang. (
63 ["Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the
inference that the conduct was 'committed for the benefit of . . . a[] criminal
street gang' within the meaning of section 186.22(b)(1)."].) Although there was evidence
from which the jury could have concluded the crimes were personal rather than
gang related, it was up to the jury to resolve this issue. We have no power to reweigh the evidence,
make credibility determinations or substitute our conclusion for the
jury's. (Id. at p. 60.)
C. Attempted
Voluntary Manslaughter
Ruiz contends his attempted murder convictions must be
overturned because the evidence was insufficient to show he possessed the
requisite intent to kill. We disagree.
Attempted voluntary manslaughter requires proof of a
specific intent to kill. (
1543, 1549-1550.) The intent to kill may
"be inferred from the defendant's acts and the circumstances of the
crime." (People v. Smith (2005) 37 Cal.4th 733, 741.) " 'Whether a
defendant possessed the requisite intent to kill is, of course, a question for
the trier of fact. While reasonable
minds may differ on the resolution of that issue, our sole function is to
determine if any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.' " (People
v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.) "[T]he degree of the resulting injury is
not dispositive of defendant's intent" and "a defendant may properly
be convicted of attempted murder when no injury results." (People
v. Avila (2009) 46 Cal.4th 680, 702.)
Here, the defendants initially started to pull out of the
driveway to leave, but then returned, got out of the car armed with knives or
other sharp objects and attacked the unarmed victims. Dr. Wesley Fung, the physician that treated
Mercado, stated that Mercado suffered an injury to his left arm, some large
lacerations and two "fairly large" and deep stab wounds to his
back. Mercado required that a tube be
inserted into his chest because he had injured his lung causing air to
escape. Mercado suffered a spleen
injury, which was surgically repaired along with a two to three centimeter
laceration to his diaphragm.
Dr. Fung stated that about 90 percent of stab wounds he
sees involve only the skin and muscle and that it takes a "pretty direct
force like a jabbing force" to penetrate into the abdominal cavity from
the chest. Based on the location of the
wounds, Dr. Fung opined that they could have been life-threatening had the
knife been aimed in a different direction.
For example, had the knife been in a "slightly separate
direction," it would have hit Mercado's heart and killed him quickly. Also, the stab wound to Mercado's back
resulted in a leak of the cerebral spinal fluid, meaning the injury was very
close to Mercado's spinal cord.
Espinoza suffered two stab wounds to his right flank and
one to his buttock. Dr. Eugene Kwong,
Espinoza's physician, was concerned about the right flank wound because it was
close to the liver, kidney, intestines and major veins. However, test results revealed that Espinoza
only suffered injuries to his skin and muscle, which were then closed. Although Espinoza's actual wounds were not
life-threatening, Dr. Kwong opined that the wounds could have been
life-threatening if the trajectory of the knife had been different. He described penetrating injuries to the main
torso of a person as the "kill zone."
The brevity of the attack, which resulted in stab wounds
to the torsos of both victims, suggest the defendants acted purposefully. The totality of the circumstances, including
the manner of the attack and the location of the penetrating wounds on both
victims, was sufficient to support a finding of intent to kill. (People
v. Arias (1996) 13 Cal.4th 92, 162 [if "jury found defendant's use of
a lethal weapon with lethal force was purposeful, an intent to kill could be
inferred, even if the act was done without advance consideration and only to
eliminate a momentary obstacle or annoyance"].)
II.
Section
654 provides that "[a]n act . . . that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision." Whether a course of conduct is indivisible
for purposes of section 654 depends on the intent and objective of the
defendant. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Where a defendant "entertained multiple
criminal objectives which were independent of and not merely incidental to each
other, he may be punished for independent violations committed in pursuit of
each objective even though the violations shared common acts or were parts of
an otherwise indivisible course of conduct." (Ibid.) A defendant's intent and objective are
factual questions for the trial court (People
v. Coleman (1989) 48 Cal.3d 112, 162) and its determination will be upheld
if supported by substantial evidence. (
730.)
Ruiz
contends that the sentence for count 5, street terrorism, must be stayed under
section 654 because this count arose only as a result of his commission of
attempted voluntary manslaughter (counts 1, 2) and assault with a deadly weapon
(counts 3, 4) while intending to promote a criminal street gang. The Attorney General concedes, and we agree
that the sentence on count 5 should have been stayed under section 654.
III.
Ruiz
contends the trial court did not comply with statutory procedures when it
ordered him to reimburse the county $150 for appointed counsel fees under
section 987.8. He asserts the court did
not give him notice of the hearing, make an express finding of his ability to
pay, or find what was a reasonable fee.
The Attorney General argues that Ruiz forfeited this claim on appeal
because he failed to object to the award below.
Assuming the claim was not waived, the Attorney General urges us to
remand the matter to the trial court for further proceedings to determine if
the award was properly assessed.
As
a preliminary matter, the People's forfeiture argument is contrary to the
holding in People v. Viray (2005) 134
Cal.App.4th 1186 (Viray). The court in Viray rejected a forfeiture argument on two independent grounds,
finding a forfeiture (1) could not be based on the failure of the public
defender to object to his or her own fees and (2) never applies to a
sufficiency of the evidence claim. (
1128 [sufficiency of evidence claims are not subject to forfeiture].) Although the People argue against the first
holding, they ignore the second. As we
discuss below, the evidence in the record was insufficient to support the
award.
A
court may order defendant to pay the cost of court-appointed counsel after a
hearing to determine if defendant has the ability to pay. (§ 987.8, subd. (b).) "At a hearing, the defendant shall be
entitled to, but shall not be limited to, all of the following rights: [¶] (1)
The right to be heard in person. [¶] (2) The right to present witnesses and
other documentary evidence. [¶] (3) The right to confront and cross-examine
adverse witnesses. [¶] (4) The right to have the evidence against him or her
disclosed to him or her. [¶] (5) The right to a written statement of the
findings of the court. [¶] If the court determines that the defendant has the
present ability to pay all or a part of the cost, the court shall set the amount
to be reimbursed and order the defendant to pay the sum to the county in the
manner in which the court believes reasonable and compatible with the
defendant's financial ability." (
In
considering defendant's ability to pay, the court shall consider defendant's
present financial condition and his reasonably discernable future financial
position for a period of no more than six months from the date of the
hearing. (§ 987.8, subd. (g)(2).) There exists a statutory presumption that a
defendant who has been sentenced to state prison does not have an ability to
pay "[u]nless the court finds unusual circumstances" that demonstrate
otherwise. (Id., subd. (g)(2)(B).) Thus,
when a defendant has been sentenced to state prison, the trial court must make
an express finding that unusual circumstances exist before the court may order
a defendant to pay a portion of the cost of the legal assistance provided
him. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1537.)
Here,
the trial court held no hearing on Ruiz's ability to pay and there was no
evidence in the record to support a finding that he had the ability to
pay. Rather, the record shows that he
had no assets and that his arrest caused him to lose his job that had paid $8
per hour. Further, although the court
sentenced Ruiz to prison for 23 years, it failed to make a finding that this
was an unusual case or to otherwise acknowledge the statutory presumption that
a defendant sentenced to prison has no financial ability to reimburse the costs
of his defense. Accordingly, even when
drawing all reasonable inferences in favor of the judgment, the attorney fees
order cannot stand.
The
question remaining is the appropriate remedy.
The People argue that the
matter should be remanded to the trial court for an opportunity to conduct a
noticed hearing on the issue. (
1061, 1068.) Ruiz asserts it would be a
waste of "judicial resources" to remand for further proceedings, in
that there is no evidence to suggest he has the ability to pay and he was
sentenced to state prison. We agree with
Ruiz.
Unlike People v.
Flores, supra, 30 Cal.4th 1059,
in which our Supreme Court concluded that "a showing of unusual
circumstances was conceivable" because the probation report stated that
the defendant possessed a substantial amount of jewelry at the time of
sentencing (id. at p. 1068), the
People have not directed us to anything in the record that suggests the
existence of unusual circumstances to rebut the presumption that Ruiz lacks the
ability to pay attorney fees, nor have we found any indication of unusual
circumstances in our review of the record on appeal. Judicial economy compels us to strike the
order imposing attorney fees.
DISPOSITION
The
judgment is modified to strike the order assessing attorney fees in the amount
of $150 or any amount and to stay the sentence on count 5 under Penal Code
section 654. As so modified, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment reflecting these
modifications and forward it to the Department of Corrections and
Rehabilitation.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P.
J.
O'ROURKE, J.
