P. v.
Filed 8/7/13 P. v. Santiago CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
RICARDO SANTIAGO et al.,
Defendants
and Appellants.
E054312
(Super.Ct.No.
SWF028233)
APPEAL from the Superior
Court of
County. Mark Mandio,
Judge. Affirmed in part and reversed in
part.
Gary V. Crooks, under appointment by
the Court of Appeal, for Defendant and Appellant Ricardo Santiago.
Robert Booher, under appointment by
the Court of Appeal, for Defendant and Appellant Andrew Rudy Salas.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Peter Quon, Jr., and Christopher P. Beesley, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Andrew Rudy Salas, a Hemet
Trece gang member, and another man stood outside a residence yelling for a man
named “Psycho.†Jane Doe
the other man to leave. One of them told
her to go inside her residence or she could get killed. A short time later, Doe heard a gunshot
outside her window, and two Hispanic males were seen in the street. A neighbor identified the shooters as Salas
and defendant Ricardo Santiago.
Defendants were later found together several blocks from the
residence. Santiago
was in possession of a knife, but no gun was found.
Defendants were tried together. Salas was convicted of making
was hung on the charge against Santiago),
and Santiago was convicted of
possession of a concealed dirk or dagger.
They were both acquitted of or the jury was hung on all of the charges
stemming from the shooting. They both
were convicted of the substantive crime of active participation in a
enhancements for their individual crimes.
Defendants now contend jointly and
individually as follows:
1. Salas
contends that insufficient evidence
was presented in order to convict him of making criminal threats within the
meaning of Penal Code section 422.
name="_ftnref2" title="">[2]
2. Santiago,
joined by Salas, contends there was insufficient evidence presented to support
his conviction of the gang enhancement pursuant to section 186.22, subdivision
(b)(1).
3. Santiago,
joined by Salas, contends there was insufficient evidence presented to support
his conviction of the substantive crime of active participation in a criminal
street gang pursuant to section 186.22, subdivision (a).
4. Santiago,
again joined by Salas, contends that the prosecutor committed multiple
instances of prosecutorial misconduct.
5. Santiago,
joined by Salas, contends that the trial court erred by refusing to respond to
a question posed by the jury during deliberations pertaining to the elements of
the active gang participation charge.
6. Santiago
contends that his conviction for possession of a dirk or dagger must be
reversed because the trial court accepted a partial verdict.
7. Salas,
joined by Santiago, contends that
his sentence on the substantive crime of active participation in a criminal
street gang must be stayed pursuant to section 654.
We reverse the convictions for
active participation in a criminal street gang as to both defendants. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
Santiago and Salas were both charged
as follows: assault with a semiautomatic
firearm in violation of section 245, subdivision (b) (count 1); making a
criminal threat in violation of section 422 (count 2); willful discharge of a
firearm in a grossly negligent manner in violation of section 246.3 (count 3);
and the substantive crime of actively participating in a criminal street gang
in violation of section 186.22, subdivision (a) (count 4). It was alleged as to counts 1 through 3 that
the crimes were committed for the benefit of or at the direction of a criminal
street gang. (§ 186.22, subd.
(b)(1).) It was alleged as to count 1
that Santiago personally used a firearm within the meaning of section 12022.5,
subdivision (a), and a principal armed allegation was alleged within the
meaning of section 12022, subdivision (a)(1).
Santiago was charged with
carrying a dirk or dagger in violation of section 12020, subdivision (a)(4)
(count 5), with the special allegation that he committed the crime for the
benefit of or at the direction of a
criminal street gang (§ 186.22, subd. (b)(1)).
Salas was charged with having a suffered one prior serious or violent
felony conviction. (§§ 667, subds. (c)
& (e)(1), 1170.12, subd. (c)(1).)
Santiago and Salas were tried
together in front of one jury. The jury
found Santiago guilty of count 5, possession of a dirk or dagger. After delivering this partial verdict, two
jurors were removed due to time constraints, and the jury newly constituted
with two alternate jurors rendered verdicts on the remaining charges. Santiago and Salas were found guilty of
active participation in a criminal street gang (count 4). Salas was found guilty of making a criminal
threat (count 2), and the gang allegation for that count was found true. The gang allegation for possession of dirk or
dagger by Santiago (count 5) was found true.
Salas was found not guilty of assault with a firearm (count 1). The jury hung on counts 1, 2, and 3 as to
Santiago and on count 3 for Salas, and the trial court declared a mistrial on
these counts. Counts 1 and 3 were dismissed
by the trial court in the interests of justice (§ 1385) for Santiago, as was
count 3 for Salas. Count 2 for Santiago
was dismissed after a plea bargain for charges in another case. Salas admitted that he had suffered one prior
serious or violent felony conviction.
Santiago was sentenced to two years
on count 5, plus an additional three years for the gang enhancement, for a
total prison sentence of five years.
Sentence on the substantive gang conviction was ordered to run
concurrent to count 5.
name="_ftnref3" title="">[3] Salas was sentenced to the three strikes
sentence of four years on count 2, plus five years for the gang enhancement for
that count, for a total prison sentence of nine years. The sentence for active participation in a
gang was ordered to run concurrent to the imposed sentence.
II
FACTUAL BACKGROUND
A.
1. Detention
of Santiago and Salas
On March 19, 2009, Hemet Police
Officer Elpidio Ybarra heard over the police radio a report of a shooting on
Campus Way in Hemet and that two suspects (Hispanic males between 17 and 18
years old with shaved heads and baggy clothes) were at large.
Salas walking down the street. They
appeared to him to match the description of the suspects. When they observed Officer Ybarra, they
turned and walked briskly in another direction.
Officer Ybarra exited his vehicle and ordered them to the ground.
Hemet Police Officer Eric Goodwyn
arrived after Officer Ybarra had Santiago and Salas detained. Officer Goodwyn searched Santiago and
Salas. Santiago was wearing dark, baggy
clothing. Officer Goodwyn found a
fixed-blade knife hooked to the belt of Santiago’s pants. He did not see it but felt it during a
patdown search. It was seized.
2. Eyewitness
testimony
a. Jane
Doe
In the early evening prior to
defendants being detained, on March 18, 2009, Doe was living at a residence on
Campus Way in Hemet with her then-boyfriend, Jason Young.
mental disabilities, including attention deficit hyperactivity disorder and
obsessive compulsive disorder. It
affected her ability to communicate.
Doe and Young were getting ready to
go to bed when she heard what sounded like rocks hitting the house (the first
incident). Doe went outside and saw two
Hispanic males who “looked young,†with shaved heads, throwing rocks at her
house yelling out for somebody named “Psycho.â€
Doe told them that there was no one at the house by that name and that
they needed to leave.
The men responded that they knew he
was there. Doe again told them there was
no one there by that name and that they needed to leave. She told them her son and grandmother lived
in the house. At trial, Doe testified
that at this point one of them then said to her, “You need to go back inside,
or you’re going to get killed†or “hurt.â€
Doe went back inside her house “thinking it was people being
stupid.†No one ever touched her, and
she was not afraid at that time.
In
court, Doe could not identify which of the defendants made the statement. She could only identify Salas in court as one
of the men present during the first incident.
She could not positively identify Santiago due to the passage of
time.
As Doe got ready for bed, between 30
minutes and an hour later, she heard a “pop†and knew it was a gunshot (the
second incident). It scared her. She immediately dialed 911. She did not see who fired the shot. Doe admitted that she could not say for sure
if the people involved in the second incident were the same people who were
involved in the first incident.
In the 911 call, Doe stated that
some “Mexican kids claiming San Jacinto just tried to shoot my husband.†Doe told the 911 operator that they had come
by earlier looking for someone named “Psycho.â€
They threw rocks at the window.
They left and returned with guns.
She indicated they had put bandanas over their faces. She later stated that they said, “San Jacinto
mother fuckers.†At one point during the
call, someone in the background stated the noise was a firecracker and not a
gun. Doe also stated on the call that
when she told the men who were looking for Psycho that they had to leave, one
of them responded, “I suggest you go back inside before I kill you.â€
Doe became scared when she heard the
gunshot. When she heard the shot, she
thought that the earlier threat was a threat on her life.
Doe was transported to an infield
showup where Santiago and Salas were detained.
Before going to the showup, Doe told the officer she needed her glasses,
but she claimed he would not allow her to go back inside her house for the
glasses. Two men were sitting on the
curb. She identified one of the persons
(but she was not 100 percent sure), and it was not clear from her testimony
whom she identified. She did not
identify the second person. She blamed
it on not having her glasses.
At first, Doe was certain in court
that Salas was the person who threatened her.
She admitted that the prosecutor showed her photographs of defendants
prior to trial and was told they were on trial.
Doe never saw the shooters.
Later, Doe testified one of the men (she was not sure if it was Salas)
said, “You better go back inside before you get killed.†Doe said she had a hard time looking at Salas
in court because, even if he did not make the threat, she felt to that day that
he had threatened her. She was certain
Salas was at the first incident.
Doe tried to go back to the police
station to talk about not wearing her glasses at the infield showup. She wanted to clarify she was not certain of
her identification. One of the officers
said to her, “I don’t need a lying bitch coming in here and telling me
what.†[Sic.] He told her to
leave. For the first time at trial, she
claimed she recognized the voice in the second incident as the same as the one
threatening her earlier. She never heard
anyone say Hemet Trece.
Doe had been extremely scared since
this incident. A few weeks after this
incident, someone yelled at her, “Snitches get stitches.†Another time someone drove by and said to her,
“Just because someone is yelling out ‘San Ja’ doesn’t mean you have to put them
away.â€
b. Young
Around 11:00 p.m. Young was asleep
in his bedroom when he heard a disturbance on the front porch. He went to his window because he could see
the porch from his bedroom.
around 18 years old, wearing dark clothing.
Young told them to leave because Doe’s son was there, and he said, “I
don’t need this here right now.†They
walked away without incident.
About 30 minutes later, two men came
to the house. Young looked out his
bedroom window. They were dressed the
same as the men who had been at the house earlier, but these men had bandanas
covering their faces from the nose down.
One of the men was wearing a hat.
Young observed one of the men holding a semiautomatic firearm. Young had no trouble seeing these two
men. Young then heard, “First Street
motherfucker†and a gunshot.
name="_ftnref7" title="">[7]
At trial, Young said for the first
time that one of the men had on a shirt that had white lettering. Also for the first time, Young said that one
the men who first came to his house had the same shirt with the writing on
it.
Young and Doe called the
police. Young was taken to the infield
showup. He identified Santiago as
holding the gun and was 100 percent certain he was the shooter in the second
incident.
Young recalled that Santiago had a
bandana partially covering his face at the infield showup. He admitted that all he saw of the shooting
suspect was his eyes and nose. Young
identified Santiago due to the writing on his shirt, his eyes, and his nose.
c. Cleveland
Kevin Cleveland lived next door to
Doe and Young.
cigarette. He observed Santiago and
Salas “accost[]†Doe; he identified both defendants in court. Cleveland described them as pushing and
shoving Doe.
title="">[10]
Cleveland thought that Doe and the
defendants argued for two minutes. He
went inside. A few seconds later, he
heard a gunshot. He looked outside and
saw Salas holding a semiautomatic firearm.
Santiago had already run off. The
police then arrived. However, at trial,
he identified Santiago as the shooter.
Cleveland found a nine-millimeter shell casing on the ground in the
street. He stated that neither one of
the men was wearing a bandana when the shooting occurred.
Cleveland initially described the
suspects to police as one Hispanic male and one White male. Cleveland identified Santiago and Salas at
the infield showup and was 99.9 percent certain at the time of the showup; he
was 100 percent certain of his identification at the trial.
Officer Ybarra drove Cleveland to
the infield showup and testified that Cleveland immediately identified Salas
and Santiago.
3. Investigation
A jail phone call involving Salas
was recorded. In the call, Salas is
asked why he got “busted.†He responded,
“[F]or shooting and shit.†The person
responded, “You’re dumb I told you that.â€
Santiago also made a jail call that
was recorded on August 5, 2010. Santiago
said, “‘Because when you see . . . Mo, I go to the same
court with him, my crimey.’â€
Retired Hemet Police Officer Douglas
Barrett responded to Campus Way around 11:43 p.m. Cleveland told him that he saw two males on
the street arguing; he never mentioned Doe.
He went inside his house and heard a single gunshot. Doe told Officer Barrett the men told her,
“Go back inside or I’ll kill you.†Young
said he was outside on his porch when two males approached. They yelled, “San Jacinto First Street motherfuckers.†One of them pointed a gun at him, and he went
inside. He then heard a single
gunshot. Cleveland showed him the
nine-millimeter shell casing in the street.
Officer Barrett took Doe to the
infield showup. She identified Salas as
being at her house. Doe never said
anything to the officer about wanting her glasses. She said she was 100 percent sure of her
identification. Doe did not tell him
what part Salas played when he was at her house. Young identified Santiago and was sure of his
identification. He claimed that Santiago
pointed a gun at him while he was on the porch.
Cleveland never mentioned Santiago’s shirt with lettering. A gun was never located. Gunshot residue tests were conducted on Salas
and Santiago that night, but no gunshot residue was found on them.
4. Gang
evidence
Hemet Police Corporal Takashi
Nishida testified as a gang expert. He
indicated that violence was a big factor in gangs, and instilling fear in the
community was a sign of respect for the gang.
The Hemet Trece gang is a rival of the San Ja First Street gang. The area where the shooting occurred was
claimed by Hemet Trece.
San Ja First Street gang members
always referred to themselves by “San Ja First Street†or San Ja; they did not
use “San Jacinto.†As of March 18, 2009,
the primary activities of the Hemet Trece gang were murder, attempted murder,
assault with a deadly weapon, firearms violations, burglary, drug sales, and
vandalism. Other gang members had been
convicted of assault with a deadly weapon and making criminal threats.
Salas had a Hemet tattoo. Corporal Nishida had personal contact with
both Salas and Santiago. They both had
field identification cards on file.
According to the field identification cards, Santiago’s gang moniker was
Lonely or Lonely Boy. Santiago had
identified himself as a Hemet Trece gang member. Santiago was in pictures with other Hemet
Trece gang members and gang graffiti.
According to field identification
cards, Salas used the gang moniker Moe.
Salas had been a member of Hemet Trece since he was 14 years old. Salas later denied his gang membership but
recently had been found with a hat with “Moe†and the gang’s name written on
it. Salas had been with another Hemet
Trece gang member two months prior to the instant shooting. Salas had a Hemet tattoo, which had been
recently modified. A Hemet Trece gang
member had been in the courtroom the prior day.
It was Corporal Nishida’s opinion
that on March 8, 2009, both Salas and Santiago were active Hemet Trece gang
members. After being given a
hypothetical about the shooting, he opined that it was done for the benefit of
the gang and in association with the gang.
It was possible they yelled out “San Jacinto†to start a fight with
Psycho, who may have been a member.
Campus Way was in Hemet Trece gang territory.
Corporal Nishida indicated that if
the shooters were San Jacinto gang members, they would have yelled out San Ja,
not San Jacinto First Street. Corporal
Nishida indicated that a “crimey†was a partner in crime. He was unaware of any San Jacinto or Hemet
Trece gang member named Psycho. The area
were Santiago and Salas were detained was a 10 to 15 minute walk from the
shooting site.
Corporal Nishida was given the
hypothetical that two Hemet Trece gang members are walking the streets of
Hemet, a territory claimed by Hemet Trece, and one of them has a concealed
knife on his waistband. The knife is
covered by a long baggy shirt. He was
asked if the possession of the knife was done for the benefit of, at the
direction of, or in association with the criminal street gang, Hemet
Trece. Corporal Nishida said the
association was found by the two gang members.
The knife is possessed for defensive and offensive reasons. As gang members, they are constantly being
challenged by other gang members, and they carry the knife for protection.
Later, Corporal Nishida was asked
how calling out the rival gang’s name ‑‑ not in a
threatening manner ‑‑ would benefit the gang. Corporal Nishida said it was not the “normâ€
but that Hemet Trece members would still brag about committing the crime, and
others would find out they were involved by word of mouth. Corporal Nishida felt that the general public
would only know that a gang committed the crime. It would still instill fear. He admitted it would bolster the reputation
of the rival gang. Again Corporal
Nishida indicated that the norm was for a gang to call out its own gang name.
B.
Santiago called Robert Watts, who
was an investigator employed by the public defender’s office. Watts spoke with Doe on August 25, 2009. She was in custody. Doe claimed that she thought she knew Salas
from somewhere else, but she did not remember him being in front of her house
that night. She told this to the police
officer.
III
INSUFFICIENT EVIDENCE CRIMINAL THREATS
Salas contends that there was
insufficient evidence presented to support his conviction for making criminal
threats. He argues that the evidence was
insufficient to find that the statement made to Doe was so unequivocal,
unconditional, and immediate as to constitute a threat. Moreover, he insists that Doe did not express
fear during the first incident and only became fearful when she heard gunshots
outside her residence 30 minutes later.
However, Salas was found not guilty of being involved in the second
shooting. As such, the evidence does not
support his conviction for making criminal threats. Finally, Salas argues he could not be
convicted of aiding and abetting the criminal threat.
“Our task is clear. ‘On appeal we review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence ‑‑ that is, evidence that is
reasonable, credible, and of solid value ‑‑ from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of
which suggests guilt and the other innocence [citations], it is the jury, not
the appellate court[,] which must be convinced of the defendant’s guilt beyond
a reasonable doubt. ‘“If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.â€â€™ [Citations.]â€
[Citation.]’ [Citations.] The conviction shall stand ‘unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].â€â€™
[Citation.]†(
507-508.)
For a conviction of making a
criminal threat, the People must prove as follows: “(1)
The defendant willfully threatened to commit a crime that will result in
death or great bodily injury to another person.
(2) The defendant had the
specific intent that the statement be taken as a threat. (3)
The threat was on its face and under the circumstances ‘“so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the threat.â€â€™ (4)
The threat caused the victim ‘“to be in sustained fear for his or her
own safety or for his or her immediate family’s safety.â€â€™ (5)
The victim’s fear was reasonable under the circumstances. [Citations.]â€
(People v. Jackson (2009) 178
Cal.App.4th 590, 596.) “‘In enacting
section 422 . . . , the Legislature declared that every person has the right to
be protected from fear and intimidation.
This act was in response to the growing number and severity of threats
against peaceful citizens.’ [Citation.]†(People
v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Defendant initially contends that
there was insufficient evidence that the statement to Doe on its face was so
unequivocal, unconditional, immediate, and specific as to convey to her a
gravity of purpose and an immediate prospect of execution of the threat. Here, Doe said on the 911 call that the
persons during the first incident had told her, “I suggest you go back inside
before I kill you.†Doe told Officer
Barrett that one of them threatened her to go back inside or “I’ll kill
you.†At trial, she stated the statement
to her was that, “You need to go back inside, or you’re going to get killed†or
“hurt.â€
Doe also testified, “I’m like, in my
head, I just said, ‘whatever,’ because people are stupid and they say stupid
things.†The prosecutor then asked if
she was not sure if they said “killed†or “hurt.†Doe responded, “It’s been two years. I know either way that they were threatening
me in some form and fashion. I don’t
remember if it was killed or hurt verbally, but I know it was a verbal
threat.â€
“A threat is sufficiently specific
where it threatens death or great bodily injury. A threat is not insufficient simply because
it does ‘not communicate a time or precise manner of execution, section 422
does not require those details to be expressed.’ [Citation.]†(People
v. Butler (2000) 85 Cal.App.4th 745, 752.)
The defendant must intend for the victim to receive and understand the
threat, and the threat must be such that it would cause a reasonable person to
fear for his or her safety or the safety of his or her immediate family. (People
v. Thornton (1992) 3 Cal.App.4th 419, 423 [Fourth Dist., Div. Two],
rejected on other grounds by People v.
Hudson (1992) 5 Cal.App.4th 131, 143, fn. 5.)
The statement standing alone
expressed to Doe that she was going to get hurt or killed if she did not go
inside and constituted a threat of great bodily injury or death. Although Salas argues that it could be a warning
to her, the evidence supports that it was a threat. Based on either version of the threat, Doe
could have reasonably been placed in the requisite state of sustained fear for
her safety. The fact that she lived in a
neighborhood where she was used to threats, or statements like this, does not
impact the unequivocal nature of the threat.
A reasonable person would fear for his or her own safety.
Further, the evidence established
that, based on the surrounding circumstances, Doe did have sustained fear based
on the statement. Although the fear was
not immediate, such immediacy was not required.
Doe stated, “I’m used to idle threats.
People say things out of anger or just trying to make themselves look
bigger in front of someone else or whatever the case may be. But when you follow through with it in any
means, it actually makes you stop and think, okay. What are they capable of, and how true to
their word are they going to act?†The
prosecutor then asked, “So once that shot was fired is when you became afraid
of that; correct?†She responded,
“Yes. Very much so.†The prosecutor then asked her how afraid of
the threat she was after that shot was fired.
She responded, “The same amount I am today. I’m still terrified to walk into Hemet
without looking over my shoulder.â€
To establish the “sustained fearâ€
element, “the statute . . . requires proof of a mental element in the
victim.†(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The threat must “be such as to cause a
reasonable person to be in sustained fear
for his personal safety. . . . The
phrase to ‘cause[] that person reasonably to be in sustained fear for his or
her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear,
and the sustained fear must also be reasonable under the circumstances.†(In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) “[I]t is clear a jury can properly consider a
later action taken by a defendant in evaluating whether the crime of making a
terrorist threat has been committed. . . .
The point is that all of the circumstances can and should be considered
in determining whether a terrorist threat has been made.†(People
v. Solis, supra, 90 Cal.App.4th at p. 1014.)
“For instance, in
Cal.App.4th 1212, the defendant claimed the language of his threat was vague
and did not specifically convey a threat of great bodily injury or death. The appellate court conceded his threat may
not have, by itself, conveyed a threat to commit great bodily injury or death
but held that the trier of fact could consider all of the surrounding
circumstances in deciding whether a terrorist threat had been made. In that case, the defendant set fire to a
building where the victim worked a day after the defendant had made the
threat. The court held the jury could
properly consider that fact. It
reasoned: ‘Defendant’s activities after
the threat give meaning to the words and imply that he meant serious business
when he made the threat.’ [Citation.]†(
at p. 1013.)
This case is similar to
1333, superseded by statute on other grounds as noted in People v. Franz (2001) 88 Cal.App.4th 1426. In Mendoza
, the victim testified against the defendant’s brother at a preliminary
hearing. Defendant went to the victim’s
house after the testimony and told the victim that she had “‘fucked up his
brother’s testimony’†and that he was going to talk to “‘some guys from Happy
Town,’†a gang to which both defendant and his brother belonged. (Mendoza,
at p. 1337.) The victim knew defendant
and his brother because she had been an associate in the gang. (Id. at
p. 1341.) The victim did not initially
take the words as a threat. However,
about 20 to 30 minutes later, she heard a horn honking outside her home and saw
defendant’s friend sitting across the street in his car. (Id. at
p. 1338.) It was at this point that the
victim became “afraid for her life†and called the police. (Ibid.) On appeal, the appellate court explained that
while the defendant’s “words were ambiguous, did not mention a particular
criminal act or give other particulars, a rational juror could have found ‑‑ based
on all the surrounding circumstances ‑‑ [defendant]’s
words were sufficiently unequivocal, unconditional, immediate and specific to
convey to [the victim] a gravity of purpose and immediate prospect of death or
serious bodily injury.†(
Salas argues that “appellant’s
conviction for criminal threats cannot stand because the victim’s fear did not
arise from appellant’s actions.â€
However, this ignores that Salas either stated or aided and abetted in a
statement that he was going to kill her if she did not go inside. The jury could reasonably conclude the
statement was that she was going to get killed by standing up to Salas. This was supported by the evidence.
Moreover, this statement was
stronger than that in Mendoza. Although Doe claimed she was not frightened
at the time this statement was made, she later became afraid when she thought
that Salas or the person he had previously been with were shooting at her
house. Despite the fact that Santiago
and Salas were not convicted beyond a reasonable doubt of the shooting, it was
Doe’s subjective belief that they were following through on their threat that
caused her fear. We see no reason to
distinguish this case from Mendoza. Even assuming that Salas was not involved in
the shooting, the fact that he made or aided and abetted the threatening
statement, and that Doe finally realized the gravity of the statement based on
her house being the subject of gunshots, supports his conviction of making
criminal threats. As we have found, the
statement was unequivocal. Even if we
conclude that Santiago and Salas were not involved in the shooting, this
unrelated event only made Doe realize her fear when she should have been
fearful when the statement was made.
Here, after the statement was made
to her, Doe heard a gunshot. In her
mind, that person shooting was Salas or the person with Salas. Although Salas was not convicted of the
subsequent shooting, it certainly could be considered a circumstance
surrounding the statement that shows it was unequivocal, unconditional,
immediate, and specific and showing that Doe sustained fear from the statement.
Salas also contends that even if the
statement was unequivocal, unconditional, immediate, and specific and Doe was
in sustained fear, he could not be found guilty on an aiding and abetting
theory. In closing argument, the
prosecutor argued that they could convict on an aiding and abetting theory
because there was no testimony as to who threatened Doe. The jury was instructed on aiding and
abetting.
In order to convict a person on a
theory that he aided and abetted a crime, there must be proof that “an aider
and abettor with knowledge of the criminal purpose of the perpetrator
committing, or of encouraging or facilitating commission of, the offense.†(People
v. Beeman (1984) 35 Cal.3d 547, 560)
“Among the factors which may be considered in determining aiding and
abetting are: presence at the crime
scene, companionship, and conduct before and after the offense.†(In re
Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.) Whether a person has aided and abetted in the
commission of a crime ordinarily is a question of fact, and all conflicts in
the evidence and reasonable inferences are resolved in favor of the
judgment. (Ibid.)
Here, it was undisputed that Salas
was present when the threatening statement was made. Salas was with another Hispanic male,
possibly Santiago, throwing rocks at Doe’s house and looking for someone named
“Psycho.†Doe came outside and told them
that Psycho did not live there and that they had to leave. They told her they did not believe her and
refused to leave. It was at this point
that either Salas, Santiago, or some other person said that she would be killed
or they would kill her. Young got
involved and told them to leave, and they complied. Salas was a short time later, only several
blocks from the location, with Santiago.
The jury here could reasonably
conclude that if Salas did not make the statement, he aided and abetted the
speaker. Salas remained with the person
throughout the incident, despite being told by Doe to leave. He did nothing to clarify the statement to
Doe and only walked away when Young told them to leave. Salas remained close to the area where the
incident occurred and was with Santiago.
Although the jury could not reach a decision as to whether Santiago
committed a criminal threat, there was some evidence he was present during the
first incident. Cleveland identified
Santiago as being at the scene. Even if
it was not Santiago, the evidence was sufficient for the jury to find that
Salas aided and abetted the criminal threat.
IV
INSUFFICIENT EVIDENCE OF GANG ENHANCEMENT
(SECTION 186.22, SUBDIVISION (B)(1))
Santiago contends that the evidence
was insufficient to support his conviction of the gang allegation pursuant to
section 186.22, subdivision (b)(1).
Here, Santiago’s conviction for the gang enhancement was based on his
conviction for possession of a dirk or dagger.
Salas joined in Santiago’s opening brief. However, in his request, Salas provided no
argument as to reversal of his section 186.22, subdivision (b)(1) enhancement
on his criminal threat conviction, and the enhancement on the dirk or dagger
charge does not apply to him. We will
not make the argument for him and will only address whether the evidence of the
gang enhancement was sufficient to uphold the gang enhancement on the
possession of a dirk or dagger charge against Santiago.
We have already set forth the
standard of review for sufficiency of the evidence claims. To prove a gang enhancement allegation under
section 186.22, subdivision (b)(1), the People must prove that the crime for
which the defendant was convicted had been “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 . . . .â€
“In addition, the prosecution must
prove that the gang (1) is an ongoing association of three or more persons with
a common name or common identifying sign or symbol; (2) has as one of its
primary activities the commission of one or more of the criminal acts
enumerated in the statute; and (3) includes members who either individually or
collectively have engaged in a ‘pattern of criminal gang activity’ by
committing, attempting to commit, or soliciting two or more of the enumerated
offenses (the so-called ‘predicate offenses’) during the statutorily defined
period. [Citation].†(People
v. Gardeley (1996) 14 Cal.4th 605, 617, italics omitted.) Santiago only disputes that he committed the
crime for the benefit of and at the direction of the Hemet Trece gang.
To meet the first prong, the crime
must be gang related. (
60.) A crime is not gang related simply
because it is committed by gang members.
(Ibid.) However, where an expert opines that
“particular criminal conduct benefited a gang by enhancing its reputation for
viciousness[, this] 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[, subdivision ](b)(1).†(Id.
at p. 63.)
As to the second prong of the
enhancement, “specific intent to benefit
the gang is not required. What is
required is the ‘specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .’†(
1176, 1198 [Fourth Dist., Div. Two].)
“It is well settled that a trier of fact may rely on expert testimony
about gang culture and habits to reach a finding on a gang allegation. [Citation.]â€
(In re Frank S. (2006) 141
Cal.App.4th 1192, 1196.) An expert
cannot testify to the specific intent of the defendant on trial. (People
v. Killebrew (2002) 103 Cal.App.4th 644, 658.)
In the recent California Supreme
Court case, People v. Rodriguez (2012)
55 Cal.4th 1125 (Rodriguez), the
court distinguished the enhancement from the substantive gang crime embodied in
section 186.22, subdivision (a), which will be discussed, post. “Section 186.22[,
subdivision ](a) and section 186.22[, subdivision ](b)(1) strike at different
things. The enhancement under section
186.22[, subdivision ](b)(1) punishes gang-related conduct, i.e., felonies
committed with the specific intent to benefit, further, or promote the
gang. [Citation.] However, ‘[n]ot every crime committed by gang
members is related to a gang.’
[Citation.] As such, with section
186.22[, subdivision ](a), the Legislature sought to punish gang members who
acted in concert with other gang
members in committing a felony regardless of whether such felony was gang
related. [Citation.]†(Rodriguez,
at p. 1138.)
It further held, “A lone gang member
who commits a felony will not go unpunished; he or she will be convicted of the
underlying felony. Further, such a gang
member would not be protected from having that felony enhanced by section
186.22[, subdivision ](b)(1), which applies to ‘any person who is convicted of
a felony 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 . . . .’
Because the gang enhancement under section 186.22(b)(1) requires both
that the felony be gang related and that the defendant act with a specific
intent to promote, further, or assist the gang, these requirements provide a
nexus to gang activity sufficient to alleviate due process concerns. [Citation.]â€
(Rodriguez,
Here, Santiago was in Hemet Trece
gang territory walking the streets with fellow gang member, Salas. He was in possession of knife that qualified
as a dirk or dagger. Corporal Nishida
testified that gang members in their own gang territory get challenged by other
gang members, and knives are carried for offensive and defensive reasons. He testified that the primary activities by
the gang included assault with a deadly weapon.
Santiago and Salas were active gang members. This evidence established that the possession
of the dirk or dagger was gang related and that it was possessed to promote or
benefit the gang.
Santiago relies on
843 (Ramon) to support his claim that
this evidence was insufficient to uphold the gang enhancement for his
possession of a dirk or dagger. In
driving a stolen vehicle and had an unregistered firearm in his
possession. (Id. at p. 847.) At trial,
the prosecution’s gang expert testified that the location at which Ramon and
his passenger (a fellow gang member) were stopped was in the territory of the
Colonia Bakers criminal street gang and that the territory was controlled
through violence and intimidation. The
primary activities of the gang were identified as sales and possession of
narcotics, theft, extortion, burglaries, robberies, car theft, and victim and
witness intimidation. (
The expert stated that car theft was related to the crimes committed by
the gang because by driving a stolen truck within the gang’s territory, the
member could commit numerous crimes, then dispose of the vehicle and have no
ties to it or the crime committed in it.
The expert further testified that the unregistered gun and stolen
vehicle could be used to spread fear and intimidation, which benefitted the
gang. Moreover, the stolen vehicle and
unregistered firearm were tools the gang needed to commit other crimes to
further the gang. (Id. at pp. 847-848.)
On appeal, the Ramon court found that the expert relied on the belief the pair
were members of the Colonia Bakers criminal street gang and the fact they were
stopped in territory claimed by the Colonia Bakers. (Ramon,
supra, 175 Cal.App.4th at p. 849.)
The appellate court concluded:
“The People’s expert simply informed the jury of how he felt the case
should be resolved. This was an improper
opinion and could not provide substantial evidence to support the jury’s
finding. There were no facts from which
the expert could discern whether Ramon and [his passenger] were acting on their
own behalf the night they were arrested or were acting on behalf of the Colonia
Bakers. While it is possible the two
were acting for the benefit of the gang, a mere possibility is nothing more
than speculation. Speculation is not
substantial evidence. [Citation.]†(Id.
at p. 851.)
Santiago also relies upon
1192. In Frank S., a minor was found to be in possession of a knife, a small
amount of methamphetamine, and a red bandana.
He claimed he possessed the knife in order to protect himself from rival
gang members. (Id. at p. 1195.) The
appellate court found that evidence insufficient to warrant the conclusion the
minor had the specific intent to promote, further, or assist in criminal
conduct by gang members. (
provide any evidence that the minor was in gang territory, had gang members
with him, or had any reason to use the knife in a gang-related offense. (Id.
at p. 1199.)
Here, unlike Frank S., Santiago was in gang territory when he was stopped, and
he was with another Hemet Trece gang member.
Further, although it appears the facts in Ramon are similar to this case, there are some differences. In Ramon,
the expert relied almost exclusively on the fact that the defendant and his
passenger were gang members and in gang territory. Here, Corporal Nishida provided testimony
that possession of the knife was both for defensive and offensive reasons that
would benefit the Hemet Trece gang. In
addition, he testified that the primary activities of the gang included assault
with a deadly weapon. This evidence tied
Santiago’s possession of the knife to the gang’s primary crimes. Corporal Nishida explained that crimes of
violence were important to the gang’s reputation in the community. Unlike in Ramon,
Corporal Nishida did not testify as to Santiago’s specific intent but, rather,
how the possession of a knife in gang territory by an active gang member
benefits the gang. Moreover,
650, 661, footnote 7, that the evidence did establish the enhancement.
The evidence here was sufficient to
support Santiago’s conviction for the gang enhancement.
V
INSUFFICIENT EVIDENCE OF SUBSTANTIVE CRIME OF ACTIVE
PARTICIPATION IN A GANG (SECTION 186.22, SUBDVISION (A))
Both Salas and Santiago contend
there was insufficient evidence presented to convict them of count 4, active
participation in a street terrorism gang within the meaning of section 186.22,
subdivision (a). Santiago claims that
his possession of the knife ‑‑ the only crime of which he
was convicted ‑‑ did not support the enhancement. Santiago was not convicted of the criminal
threat charge so the first incident involving the criminal threat could not be
considered to support this enhancement for either Santiago or Salas.
The standard of review for
sufficiency claims has been stated, ante. Section 186.22, subdivision (a) defines the
crime as follows: “Any person who
actively participates in any criminal street gang with knowledge that its members
engage in or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal conduct by
members of that gang, shall be punished by imprisonment in a county jail for a
period not to exceed one year, or by imprisonment in the state prison for 16
months, or two or three years.â€
“The substantive offense defined in
section 186.22[, subdivision ](a) has three elements. Active participation in a criminal street
gang, in the sense of participation that is more than nominal or passive, is
the first element of the substantive offense defined in section 186.22[,
subdivision ](a). The second element is
‘knowledge that [the gang’s] members engage in or have engaged in a pattern of
criminal gang activity,’ and the third element is that the person ‘willfully
promotes, furthers, or assists in any felonious criminal conduct by members of
that gang.’ [Citation.]†(People
v. Lamas (2007) 42 Cal.4th 516, 523.)
The California Supreme Court has
held that the third element of the offense is not satisfied when a gang member
commits a felony while acting alone. (
1125.) The word “members,†as the
Supreme Court explained, “is a plural noun.â€
(Id. at p. 1132.) “Therefore, to satisfy the third element, a
defendant must willfully advance, encourage, contribute to, or help
criminal conduct. The plain meaning of
section 186.22[, subdivision ] (a) requires that felonious criminal conduct be
committed by at least two gang members, one of whom can include the defendant
if he is a gang member.†(
The felonious criminal conduct referred to in the statute must be
committed “‘by members of that gang.’†(
Here, there is no evidence that
Salas was aware of the knife possessed by Santiago. With the jury being hung on the
criminal-threat charge and the charges stemming from the shooting, the only
crime of which Santiago was convicted was possession of the dirk or
dagger. There is absolutely no evidence
that Salas participated in that crime.
As indicated in Rodriguez,
“section 186.22[, subdivision ](a) reflects the Legislature’s carefully
structured endeavor to punish active participants for commission of criminal
acts done collectively with gang
members.†(Rodriguez, supra, 55 Cal.4th at p. 1139.) Santiago’s possession of the knife, based on
the evidence presented, showed that he acted alone in perpetrating this
felony. Officer Goodwyn only found the
knife when he performed a patdown search.
Although Santiago possessed the knife to promote and benefit the Hemet
Trece gang, he never used it in Salas’s presence. Santiago was punished for such possession by
the gang enhancement. As such, neither
Salas nor Santiago could be found guilty of active participation in a gang
pursuant to section 186.22, subdivision (a).
VI
PROSECUTORIAL MISCONDUCT
Santiago contends, presumably
jointed by Salas, that the prosecutor committed misconduct on numerous
occasions throughout the trial.
A.
“‘The standards governing review of
[prosecutorial] misconduct claims are settled.
“A prosecutor who uses deceptive or reprehensible methods to persuade
the jury commits misconduct, and such actions require reversal under the
federal Constitution when they infect the trial with such ‘“unfairness as to
make the resulting conviction a denial of due process.â€â€™ [Citations.]
Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial.†[Citation.]
“In order to preserve a claim of misconduct, a defendant must make a
timely objection and request an admonition; only if an admonition would not
have cured the harm is the claim of misconduct preserved for review.†[Citation.]
When a claim of misconduct is based on the prosecutor’s comments before
the jury, “‘the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an objectionable
fashion.’†[Citation.]’ [Citation.]â€
(People v. Gonzales (2011) 51
Cal.4th 894, 920.) In assessing
prejudice, we “‘do not lightly infer’†the jury drew the most damaging meaning
from the prosecutor’s statements. (
970, disapproved on a different point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
B.
Santiago pointed to several
instances in his opening brief of misconduct that occurred in the trial
court. These included failure to
disclose evidence, discovery violations, Corporal Nishida’s testimony regarding
calling out a rival gang name, vouching for witnesses, improper questioning,
misstating the evidence, tainting the witnesses, and misstating the law. We have reviewed these claims and the record
supporting these claims. Most of the
claims went to prejudice on the active participation in a gang crime and the
shooting. However, since we have
reversed defendants’ convictions on the active participation offense on the
ground of insufficiency of the evidence and the jury was hung on the shooting
offenses, we need not address these issues and do not find prosecutorial
misconduct. The only issue we find
pertinent here ‑‑ to Santiago’s conviction of possession
of a dirk or dagger or Salas’s conviction of making criminal threats ‑‑ is
the disparagement of defendants by the prosecutor during closing argument.
During rebuttal argument, the
prosecutor responded to argument by both counsel that Cleveland was excited to
find the shell casing. The prosecutor
stated, “And for a member of our community to be excited and happy that he
might have helped solve a crime when violence is overrun, Hemet is not what it
used to be. Happy we might put these
scumbags in jail.â€
The prosecutor closed by saying, “Now
you have all the tools you need to do the right thing, the right thing for our
community. To hold these scumbag
gangsters accountable for polluting our neighborhoods.†There was no objection.
The People argue the argument was
forfeited by counsel’s failure to contemporaneously object and request a jury
admonition. We agree and find that no
prosecutorial misconduct can be shown due to the failure to object. (People
v. Clark (2011) 52 Cal.4th 856, 960; People
v. Bonilla (2007) 41 Cal.4th 313, 336.)
However, since Santiago also argues that if he waived the claim because
of his counsel’s failure to object to the instance of alleged misconduct, he
received ineffective assistance of counsel, we consider whether they were
prejudiced by the comments.
We do not find prejudice. The evidence that Santiago possessed a dirk
or dagger was overwhelming and undisputed.
Salas provides no argument regarding the prosecutorial misconduct and
how it prejudiced his conviction of committing criminal threats. The fact that the jury was told that Santiago
and Salas were gang members who needed to be convicted did not so infect the
trial as to make the resulting conviction a denial of due process. (People
v. Gonzales, supra, 51 Cal.4th at p. 920.)
We find no prejudicial prosecutorial misconduct.
VII
JURY QUESTION
Santiago, joined by Salas, contends
the trial court erred by failing to respond to a question from the jury. Prior to the discharge of the two jurors, the
jurors asked a second question as follows:
“Does each el[e]ment of Count 4 (1, 2, 3 (a-b)) as relates to pgs 23-27
need to be satisfied for a guilty verdict to be entered[?]†According to the clerk’s transcript, the
response was “on the record.†At that
point, two of the jurors were removed due to other commitments and were
replaced by two alternate jurors. There
was no further discussion of the jury’s question on the record. Since we have reversed the convictions for
this count (active participation in a gang) for both Santiago and Salas, we
need not address this issue.
VIII
PARTIAL VERDICT
Santiago contends that the trial
court erred by accepting a partial verdict on count 5, his conviction for
possessing a dirk or dagger.
A.
Before dismissing the two jurors to
be replaced by the alternates, the jury foreperson acknowledged that they had
reached a verdict on one of the counts.
The trial court felt that it could take the guilty verdict prior to
dismissing the two jurors. The jury
found Santiago guilty of possession of a dirk or dagger within the meaning of
section 12020, subdivision (a). The
jurors were asked if this was their verdict, and all of the jurors answered in
the affirmative. All parties declined to
have the jury polled. The two jurors
were replaced with the alternate jurors, and the entire jury was instructed to
start deliberations anew.
B.
Section 1164, subdivision (a)
provides as follows: “When the verdict
given is receivable by the court, the clerk shall record it in full upon the
minutes, and if requested by any party shall read it to the jury, and inquire
of them whether it is their verdict. If
any juror disagrees, the fact shall be entered upon the minutes and the jury
again sent out; but if no disagreement is expressed, the verdict is complete,
and the jury shall, subject to subdivision (b), be discharged from the
case.†Subdivision (b) provides as
follows: “No jury shall be discharged
until the court has verified on the record that the jury has either reached a
verdict or has formally declared its inability to reach a verdict on all issues
before it, including, but not limit to, the degree of the crime or crimes
charged, and the truth of any alleged prior conviction whether in the same
proceeding or in a bifurcated proceeding.â€
“An essential element of [the]
constitutional right [to trial by jury is] a unanimous verdict by 12
jurors. [Citation.] For unanimity to be found, ‘[t]he jurors must
appear in court and be asked “whether they have agreed upon their verdict, and
if the foreman answers in the affirmative, they must, on being required,
declare the same.†[Citation.]’ [Citation.]â€
(People v. Garcia (2012) 204
Cal.App.4th 542, 549.) The verdict is
complete when it has been rendered in compliance with section 1164; it is
“‘“received and read by the clerk, acknowledged by the jury, and
recorded . . . .â€â€™â€
(People v. Bonillas (1989) 48
Cal.3d 757, 770.)
“[W]hen the court is going to
discharge a deliberating juror and replace that juror with an alternate, the
court should determine whether any verdicts have been reached
verdict, all 12 jurors can then affirm the verdict(s), and the verdict(s) may
be recorded pursuant to section
1164.†(People v. Garcia, supra, 204 Cal.App.4th at p. 552; see also
1477, 1485 [trial court did not err in receiving partial verdict before
replacing juror].) “The juror may then
be discharged, an alternate seated to replace the juror, and the newly
constituted jury instructed to begin its deliberations anew on any remaining
charges and allegations.†(
The trial court followed this
approved procedure. All 12 jurors were
in court when the verdict was read, all of the jury agreed it was their
verdict, and all parties declined to have them polled. There was no error in taking the
| Description | Defendant Andrew Rudy Salas, a Hemet Trece gang member, and another man stood outside a residence yelling for a man named “Psycho.†Jane Doe[1] lived at the residence and advised Salas and the other man to leave. One of them told her to go inside her residence or she could get killed. A short time later, Doe heard a gunshot outside her window, and two Hispanic males were seen in the street. A neighbor identified the shooters as Salas and defendant Ricardo Santiago. Defendants were later found together several blocks from the residence. Santiago was in possession of a knife, but no gun was found. Defendants were tried together. Salas was convicted of making criminal threats against Doe (the jury was hung on the charge against Santiago), and Santiago was convicted of possession of a concealed dirk or dagger. They were both acquitted of or the jury was hung on all of the charges stemming from the shooting. They both were convicted of the substantive crime of active participation in a criminal street gang and gang enhancements for their individual crimes. |
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