Filed 6/26/12 P. v. Soto CA6
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE
PEOPLE,
Plaintiff and Respondent,
v.
JUAN LORENZO SOTO et al.,
Defendants and Appellants.
H034605
(Santa Cruz County
Super. Ct. Nos. F17281, F17283)
On
the morning of July 25, 2004,
defendants Juan Lorenzo Soto and Francisco Javier Valenciano, Jr., along with
Anthony Gonzales, drove from Watsonville to Santa
Cruz to commit a
robbery. They were
busy, so the three men decided to rob a group of men they had seen playing
cards in a nearby driveway, with a pile of money on the ground. When Gonzales, armed with the shotgun, and
Soto, armed with the pistol, approached the card players and directed them to hand
over their money, all but one of them, Rodolfo Escobar, complied. Escobar instead insulted Gonzales, and picked
up the money off the ground. As one of
his friends implored him to cooperate with the gunmen, Escobar said he had to
work hard for his money to support his family, and that if Gonzales wanted his
money, he should “ask [his] mama for [it].”
Gonzales pressed the shotgun against Escobar’s forehead and pulled the
trigger, blowing off the top of his head.
Gonzales and Soto collected the money off the ground, went back to the
car, where Valenciano had been acting as a lookout, and drove off.
Following
a jury trial, Soto and Valenciano
§ 182, subd. (a)(1), count 1);
(§ 187, subd. (a), count 2); second degree robbery of Escobar, Antonio Baires, Jose Edgardo
Navarro, Gerardo Navarro and Jose Saul Ayala Baires (§ 211, counts 3-7); and
attempted second degree robbery of Francisco Ayala and Manuel Ayala (§§ 664,
211, counts 8 & 9). The jury also
found true the allegations that counts 2 through 9 were committed for the
benefit of a criminal street gang (§
186.22, subd. (b)(1)), that a principal personally discharged a firearm causing
death as to counts 2 and 3 (§ 12022.53, subds. (d), (e)(1)), and that a
principal personally used a firearm in the commission of counts 4 through 9 (
total terms of 84 years to life, consisting of determinate terms of 34 years
followed by indeterminate terms of 50 years to life.
On
appeal, Valenciano and Soto raise the following arguments: (1) the trial court erred in allowing the
prosecution’s gang expert to proffer an opinion that the crimes were
gang-related in response to a hypothetical scenario which closely tracked the
facts of this particular case; (2) the trial court erred in admitting
statements made by Gonzales to his girlfriend, Vanessa Martinez, under the
declaration against interest exception to the hearsay rule; (3) there was
insufficient evidence to support the criminal street gang enhancement
allegations; (4) the trial court erred in refusing to bifurcate the trial on
the gang enhancement allegations; (5) the trial court erred in allowing the
prosecution to admit evidence of predicate offenses involving Soto; and (6)
there was insufficient evidence to support their convictions on counts 6 and 7,
i.e., the robberies of Gerardo Navarro and Saul Baires.
As
discussed below, we reject all of these arguments and shall affirm the
judgments.
I. Factual and Procedural Background
A. Prosecution case
1. Santa Cruz Police Officer Thomas Young
On the
morning of July 25, 2004, Young was dispatched to 318 Spruce Street in Santa
Cruz based on a report of an assault with a deadly weapon. On arriving at the address, Young was
directed to the body of a man, later identified as Escobar, who had been
shot. Young saw that the top of
Escobar’s head was gone, with portions of his skull, blood and brain matter
scattered near his body. Some cash and
playing cards were also on the ground in the driveway. In addition to taking photographs of the
crime scene, Young sought to keep other people away from Escobar’s body.
2. Santa Cruz Police Officer Arnold
Vasquez
Vasquez was
also dispatched to 318 Spruce Street on the morning of July 25, 2004, and
assisted Young in moving people away from the crime scene. Vasquez is bilingual in Spanish and English
and is certified as a Spanish-language interpreter for the Santa Cruz Police
Department. He spoke with three
individuals at the scene, Gerardo Navarro (Gerardo), Antonio Baires (Antonio)
and Francisco Ayala (Francisco). Gerardo
was “extremely afraid,” but “the most calm [of the three].” He told Vasquez he had been standing next to
Escobar when he was shot, and Vasquez could see blood, brain matter and skull
fragments on Gerardo’s shirt.
Gerardo
said that he and his friends, including Escobar, were playing poker in the
driveway of the apartment complex. A
vehicle pulled into the driveway, made a three-point turn and went back the
direction it initially came from. The
same vehicle returned in a few minutes and parked on the street. Gerardo saw his friends put their hands up
and noticed that two men had exited the car, one of them carrying a shotgun,
while the other had a revolver. The man
with the shotgun was a Hispanic male, about five feet eight inches or five feet
nine inches tall, and weighing 180 to 190 pounds. He was holding a double-barreled shotgun,
with a barrel about 18 inches in length.
The man
with the shotgun said, “Dame dinero, putos,” which translates to “give me the
money, fucking ass holes [sic].” Gerardo’s friends began emptying their
pockets and throwing money on the ground.
Escobar, who was standing to Gerardo’s left, said, “Chinga su madre.”
Escobar’s head and pulled the trigger.
Escobar fell to the ground, and the two men picked up money off the
ground before going back to their car.
Antonio was
even more frightened than Gerardo and had difficulty speaking, but told Vasquez
essentially the same story about the robbery and murder. Francisco was the most frightened of the
three, and was not able to give Vasquez “well-thought-out” responses.
Before
Vasquez began interviewing the three witnesses, a white man about 40 years old
approached him and described seeing a green Honda, containing four males, leave
the scene just after the shooting. The
man had written down the Honda’s license plate number, so Vasquez broadcast the
description of the car and the license plate number before directing the man to
talk to a nearby officer.
3. Santa Cruz Police Officer Saul
Rodriguez
Rodriguez
was at the police station on the morning of July 25, 2004 and was dispatched to
318 Spruce Street. Rodriguez is
bilingual in Spanish and English and is certified as a Spanish-language
interpreter for the Santa Cruz Police Department. Rodriguez interviewed three individuals at
the scene, Manuel Ayala (Manuel), Jose Saul Ayala Baires (Saul) and Jose
Edgardo Navarro (Jose). Manuel, who
appeared to be in his late forties, was “visibly shaken up,” but told Rodriguez
that two gunmen had approached and demanded money from him and the others in
his group. The two men were Hispanic and
one was armed with a “double-barrel” shotgun while the other was armed with a
small “revolver-type” gun. Manuel could
not provide any additional details about the gunmen, such as their height,
weight, age or clothing. According to
Manuel, shortly after the gunmen approached, the man with the shotgun shot
Escobar in the head. Manuel ran toward
the staircase of the apartment complex and hid until the police arrived.
Jose also
was shaken up, and kind of pacing back and forth during his interview with
Rodriguez. Jose said that two armed men
approached him and his friends as they played poker and demanded their
money. He said one man was holding a
double-barrel shotgun and the other was carrying a small gun. Jose took $80 out of his wallet and gave it
to the man with the shotgun. At some
point, that man hit Jose across the back, leaving a “red, charleyhorse
laceration.” Before the two armed men
fled, the man with the shotgun shot Escobar.
Saul was
the most nervous, and was “literally shaking, [and] having . . . trouble
speaking.” He said that he and his
friends were playing poker and were surprised by two gunmen. Saul tried to walk away, but the man holding
a small revolver told him not to leave.
When he came back to the group, there was a brief conversation and then
Escobar was shot in the head.
4. Robbery victims’
Gerardo
testified he was playing cards with his friends in the driveway at 318 Spruce
Street on the morning of July 25, 2004.
A green Honda Accord pulled into the driveway for a short time, then
backed out. The car returned about five
minutes later, and Gerardo then became aware a “light skinned dark” Latino man
was pointing a black revolver at his head.
The man told him to get on the ground, and Gerardo complied. He heard another man, armed with a shotgun,
arguing with Escobar who was refusing to hand over his money. Gerardo raised his head to see what was going
on and the man shot Escobar in the head.
The man with the shotgun picked up the money on the ground and the two
gunmen left. Gerardo had about five $1
bills on the ground, one which was in the pot and four others near his feet for
future betting. Gerardo was not sure if
the gunmen took his $5, because “after they picked up some money they left a
lot of money around, and with the gunshot, the blast blew some of the money all
around.” Gerardo was asked to view some
police lineups, but was unable to identify anyone.
Saul was
one of Escobar’s roommates and they had gone to breakfast the morning of July
25, 2004. After they returned to their
apartment at 318 Spruce Street, several of them began playing poker in the
driveway, while three other friends watched.
Saul had $18 to $20 in the pot. A
green Honda pulled into the driveway, so he and his friends stood up to make
way. It left after a minute or so, and
he noticed three Hispanic men inside.
The car
returned five or 10 minutes later and stopped in front of the entrance to the
driveway. Saul heard a voice say, “Put all
the money on the ground,” and he turned to see a man in a “blue, black, dark”
hooded sweatshirt holding a double-barreled shotgun. He tried to move away, but a second man
holding a revolver told him to “Go and put all your money down.” Saul noticed there was a third man sitting in
the front passenger seat of the car.
Escobar gathered money off the ground and said, “I am not giving you my
money.” The man with the shotgun pointed
it at Escobar’s forehead and shot him.
The two men picked up money from the ground and left. Saul could not remember if there was any
money left on the ground afterwards.
Saul was
shown two photo lineups by police on July 28, 2004. In one lineup, he identified a photo of Soto,
writing on the card “It seems to be him but I would have to see his body.” He was unable to identify anyone during a
subsequent live lineup. At trial, Saul
identified photographs of the shotgun and the revolver as the weapons used in
the robbery-murder.
Francisco,
Saul’s brother, went to breakfast with Saul, Escobar and Antonio the morning of
July 25, 2004. After breakfast, he
watched Saul, Escobar, Antonio and Gerardo playing cards in the driveway. A green Honda pulled into the driveway, then
backed out and drove off. The car
returned about 10 minutes later.
Francisco saw three men get out of the car. The driver was a dark-skinned Hispanic man
wearing a black hooded sweatshirt and gloves.
The man who got out of the front passenger seat was Hispanic, a little
shorter than Francisco, and was wearing a yellow or orange jacket. The driver and front passenger came towards
Francisco while the third man, also Hispanic, stayed on the sidewalk. The front passenger was carrying a black
revolver and the driver was carrying a short, double-barreled shotgun. The driver approached the card players and
said, “Give me your money, pinches putos.”
The man with the revolver demanded money from Francisco and the other
spectators.
Antonio
pulled out his wallet and took some money out to give to the robbers. Francisco pulled out his wallet as well, but
had not yet handed any money to the man with the revolver. Escobar said “I’m not giving you my money. I have to work hard for this and I have a
family to support.” Antonio told Escobar
to give the man his money, but Escobar picked up money off the ground and the
man with the shotgun shot him. The man
with the shotgun “gathered what was on the ground” and hit Jose in the back
with the shotgun, and the two gunmen ran back to the car.
Francisco
was shown several photo lineups, and in one of them, he identified a picture of
Gonzales as “someone who looked like the person with the shotgun.” At a live lineup, he identified Gonzales and
another man as being similar to the man with the shotgun.
Antonio
worked with Escobar at a landscaping company and went to breakfast with Escobar
on the morning of the shooting. When
they returned Antonio played poker with Saul, Escobar and Gerardo, while
Francisco, Manuel and Jose stood nearby and watched. A green car pulled into the driveway, then
drove away. The car returned, and two
men with guns came out. One man had a
pistol and one had a double-barreled shotgun.
They demanded money and Antonio took $40 out of his pocket and put it on
the ground. Escobar told the man with
the shotgun “go fuck yourself,” then bent down to pick up the money on the
ground. Antonio told Escobar to give
them his money, but he did not. The man
with the shotgun said, in Spanish, “Puto, give me the money.” When Escobar did not do so, the man put the
shotgun to Escobar’s forehead and shot him.
As the man with the shotgun was leaving, he hit Jose in the back with
the gun, knocking him down. Antonio’s
money was gone. He viewed two photo
lineups and two live lineups afterwards, but could not identify anyone.
Manuel also
worked with Escobar and they were from the same village in El Salvador. He stopped by the apartment complex where
Escobar lived on the morning of July 25, 2004, in order to arrange a ride to
work the next day. He remained to watch
some of the men play poker in the driveway.
A green car that had previously passed by the driveway came back and two
young men got out. One man had a
double-barreled shotgun, and the other had a pistol. The man with the shotgun demanded that they
hand over their money, but Escobar told him to ask “his mama for the
money.” Manuel did not see anyone put
any money on the ground. Escobar cursed
at the man with the shotgun, who then shot him.
The man with the revolver told Manuel to give him his money, but as
Manuel began to reach for his money, Escobar was shot. The man with the revolver took off without
waiting for Manuel to hand over his money.
The two men left in the car, but Manuel did not notice which way it
went. Manuel was subsequently asked to
look at some photo lineups and some live lineups, but could not identify
anyone.
Jose was
watching his friends playing poker in the driveway on the morning of July 25,
2004. A green Honda pulled into the
driveway, then backed out and drove away. About five minutes later the car
returned. Two men got out, one with a
shotgun and the other with a pistol. The
man with the shotgun demanded money and Jose handed him $80. After taking the money, he pushed Jose and
hit him in the back with the shotgun.
Jose fell to the ground, and he saw Escobar try to leave when the man
with the shotgun shot him. The two men
walked back to their car, aiming their weapons at Jose and his friends, and
drove off. Jose viewed a couple of live
lineups afterwards, but was unable to identify anyone.
5. Albert Chavez and Michael Clem
Chavez and
Clem had run the Wharf to Wharf race in Santa Cruz with some friends the
morning of July 25, 2004, and they had parked their car near Spruce
Street. Chavez was changing his clothes
by the car when he saw a green Honda four-door driving rapidly down the
street. The Honda suddenly stopped in
the middle of the block and a large man wearing a gray sweatshirt, Levis and
tan work boots got out of the passenger side.
The man was five feet 10 inches or five feet 11 inches tall and weighed
170 to 180 pounds. Chavez, who used to
work in an emergency room, noticed the man was wearing latex or some other kind
of gloves on his hands.
The man
went into what Chavez thought was an alleyway or a walkway. “Moments later” Chavez heard what sounded
like a gunshot, after which he saw the man jump back in the passenger side of
the Honda. Chavez could see movement on
the other side of the car and heard a second door close. The Honda began moving quickly toward him,
and Chavez moved to the back of his friend’s car. Chavez called out to Clem to write down the
license number of the car as Chavez said it out loud. The Honda made a sharp right turn on Laurel
Street and drove off.
Chavez used
a cell phone to call 911, and relayed what he had seen, including the license
plate number and description of the car, to the 911 operator. He walked over to where the green Honda had
been pulled over and a crowd of people had moved to the sidewalk. Chavez saw a man lying in the driveway with
the top of his head missing.
Clem was
also changing his clothes by the car after the race. He noticed a car double-parked on Spruce
Street, and saw more than one person get out of the passenger side of that
car. Clem next heard what he thought was
a firecracker, followed by an engine revving with a high rate of
acceleration. He saw a four-door green
Honda, which had been double-parked on Spruce, heading straight toward him. Clem and one of his friends began repeating
the license plate number of the Honda and he wrote it down.
6. G.G. and Julie M.’s testimony
G.G., a
minor, was asleep in her bedroom with her older sister, Julie, at a nearby
apartment complex on the morning of July 25, 2004. She woke up to the sound of people outside
arguing in English and Spanish. She went
to the kitchen and heard what sounded “like a big bang.” She then heard people yelling outside, and
G.G. went into her mother’s room and looked out the window. She could see a green Toyota or Honda stopped
in the street outside. A Hispanic man in
a black hooded sweatshirt, carrying a shotgun,
the car and got into the front passenger seat.
A second Hispanic man wearing a red hooded sweatshirt got into the rear
seat behind the driver’s seat. A third
Hispanic man, also wearing a black hooded sweatshirt, got into the rear
passenger seat. G.G. did not see the
driver, and the car drove off. Her
mother called 911, but handed the phone to G.G. since she could not speak
English. G.G. and Julie spoke to the
police.
G.G. heard
people outside screaming her friend Escobar’s name. She went outside and saw a body lying next to
the trash can, but got scared and ran back inside before she saw the person’s
face.
On July 27,
2004, G.G. viewed two photo lineups and picked out Gonzales from the first
lineup. She wrote on the lineup witness
form: “Number 4 looks like the one who
shot the guy but not really and it’s because he didn’t have a bottom mustache
and the guy who shot him looked like he didn’t have any hair.” She explained that she was referring to the
small goatee Gonzales was sporting in the picture when she wrote “bottom
mustache.”
On August
3, 2004, G.G. was taken to the county jail to view an in-person lineup through
a two-way mirror. When Gonzales, in
position No. 2, stepped forward, G.G. cried and said she did not want to do
this. When the third man stepped
forward, G.G. thought he could see her and she was afraid. She told the officer “I can’t do this,” “I
don’t want to do this” and left. Neither
Soto nor Valenciano was present at this lineup.
Julie, who
had recently turned 16, was sleeping in G.G.’s room on the morning of July 25,
2004, when she was awakened by the sounds of people arguing. She walked out the front door and heard a
loud noise. Her neighbors were saying,
“Oh, my God. Oh, my God,” and Julie saw
Escobar’s body on the ground next to the dumpster outside. She saw the back of someone running off, but
never saw a face. The person yelled,
“Northside.”
Julie also
went by the name “Piedad,” and her brother is a gang member. She has a tattoo of three stars on one hand
and a tattoo of one star on the other hand, but denied that the tattoos were
gang-related. She was aware that
Northside was a gang based in Santa Cruz.
She also knew what a Sureno is, that Surenos claim the number 13, which
is often represented by a number 3, and the color blue. During her testimony, Julie was wearing a
blue cross, though she said “anybody can wear any color they want.”
7. Vanessa Martinez
Martinez
met Gonzales when she was 18, at the house of Francisco “Frankie”
Valenciano. After Gonzales was
incarcerated for violating his parole, Martinez developed a relationship with
him through letters, phone calls and prison visits. When he was released in March 2002, they
lived together at his grandparents’ house and in January 2003, she gave birth
to Gonzales’ child. In mid-July 2004,
Martinez bought her own home in Watsonville and Gonzales moved in with her.
During this
time, Martinez learned that Gonzales was a gang member. She saw his tattoos, including “VGV” (for
Varrio Green Valley) on his stomach and “Norteno” across his lower back, and
asked him about them. Gonzales also cut
his hair in a fade hairstyle called a Mongolian. He also owned a lot of Oakland Raiders
clothing.
From April
to December 2003, Gonzales was incarcerated at the Santa Cruz county jail for
possession of marijuana for sale.
Valenciano gave Martinez $25 a month to put on Gonzales’ book to buy
items at the commissary, money to give to Andrea Gonzalez, who had a son with a
VGV gang member; and $1,500 to give to Gonzales’ mother for an attorney. He also gave Martinez Christmas cards
containing money to mail. While in
county jail, Gonzales obtained more tattoos, including “14,” which stands for
the Northern gang, on his chest, and stars on his left shoulder.
As a gang
member, Gonzales was obligated to pay monthly “taxes” or dues to the gang. Oscar Cabrera, a member of a Norteno gang and
the Nuestra Familia prison gang, would beat up members who failed to pay their
taxes. Martinez witnessed Cabrera
beating up a VGV gang member, Armando Cardenas, for such a failure.
Martinez
had known Valenciano for about two years, and first met Soto about a week or
two before July 25, 2004. She believed
both men were also gang members.
The week
before the shooting, Martinez twice heard Valenciano tell Gonzales he needed
money. Valenciano said that if Maria
Zamora did not lend him money, he was going to rob somebody. Valenciano needed the money because his car
was impounded and he had to pay $200 in tax to Cabrera, which he and Gonzales
paid monthly. Gonzales also needed
money. She knew that if Valenciano and
Gonzales did not pay, they would be beaten up.
On July 24,
2004, at around 6:00 or 7:00 p.m., Charal Hernandez came to Martinez’s house to
have her hair and make-up done for a party.
Valenciano, Soto and Julio Cabrera, Oscar Cabrera’s brother, were there,
too. Gonzales asked Martinez to leave
them and go upstairs. Soto, who was
dating Hernandez, asked to borrow her car, a 1999 green Honda Accord EX. Hernandez agreed, and Soto drove her to the
party down the street. At 9:00 p.m.,
Soto, Valenciano and Gonzales left in Hernandez’s car, while Julio walked down
the street to the party.
Soto,
Valenciano and Gonzales returned sometime after midnight. Valenciano left, but Soto stayed overnight,
as did Hernandez.
The next
morning, Sunday, July 25, Soto asked Hernandez if he could borrow her car
again. Hernandez refused at first, and
asked why. She offered to drive him
where he wanted to go, but he took the keys from her and knocked on the door to
Gonzales’ bedroom.
It was
about 7:00 or 8:00 a.m. when Soto knocked on the door, but Gonzales did not
answer. Soto knocked again, and Gonzales
kissed Martinez and told her he would be right back.
Some time
later, Martinez was driving with her son, her younger sister and Hernandez to
get breakfast. Gonzales called her cell
phone, and said that Soto needed to talk to Hernandez. Martinez gave the phone to Hernandez, and
Soto told her she needed to report that her car had been stolen. She asked what happened, but Soto did not
explain. He was upset and said to just
report that it was “fuckin’ stolen.”
Hernandez was crying, as the car was registered to her grandparents and
she did not know how to explain to them about their car. She refused to call 911.
Martinez
warned Hernandez they would be in trouble if they did not do as they were
told. She was worried that the call
might have something to do with the robbery that Gonzales and Valenciano
discussed a few days prior, and was also worried that any blame would fall on
Gonzales because he was on parole and was not supposed to be around other gang
members, such as Soto and Valenciano.
Hernandez agreed to call the police and report the car stolen, so she
and Martinez fabricated a story about how the car was stolen from in front of
Martinez’s house the night before.
Martinez
then noticed she had missed a call from Gonzales and called him back, telling
him she and Hernandez had filed a police report. While talking to her, Gonzales seemed
distracted, and yelled at Soto, “[W]here’s [Valenciano]” She could hear people talking in the
background and Gonzales said, “Excuse, excuse me, where’s [Valenciano] Where the fuck is [Valenciano]” Martinez heard either Gonzales or Soto say,
“There he is at the payphone.” Gonzales
said that they were in Santa Cruz and asked her to pick him up. Martinez initially said no, but called back
20 minutes later to ask if he still needed a ride. Gonzales said he did not.
Julio
called Martinez later in the afternoon and told her to come by his house with
her son. When she arrived she saw Soto,
Valenciano, Gonzales, Julio and Oscar sitting in a truck outside. Gonzales told Martinez he was going to
Mexico. He was emotional and told her he
was sorry. Soto told Martinez to tell
Hernandez he was sorry.
The next
day, however, Martinez saw Gonzales at his grandmother’s house. He had a bad case of poison oak. She asked him what had happened but he could
not really speak. She drove him back to
their home, and about a week later, he was arrested. During that week, Gonzales told Martinez what
had happened on July 25, 2004.
Gonzales
told Martinez he and Soto went to rob a liquor store in Santa Cruz, with
Valenciano driving. Because the store
they had selected was crowded, they drove around the block. As they did, they saw some men playing poker
in a driveway, with money lying on the ground.
They pulled over and robbed the guys, with Valenciano staying by the car
as he and Soto confronted the men.
Gonzales said one of the men was killed after trying to take back his
money and talking back to the shooter.
Gonzales denied killing the man even though Martinez asked him many
times. When describing how the man was
shot, Gonzales said Soto “ate brains.”
They fled
after the shooting, and Gonzales might have been driving at that point. They had a police scanner and heard that the
police were looking for the Honda so they left the car by a creek or river and
threw the weapons in the bushes.
Gonzales said they were in Santa Cruz when Soto called Hernandez and
told her to report the car had been stolen.
Also during
the week before his arrest, Martinez saw Gonzales dividing up about $150 in
cash. As he did so, Gonzales said to
himself, “One for Soto,” “one for Valenciano,” and “one for me.” Gonzales seemed angry with Valenciano and
felt the “whole thing” was his fault.
Gonzales said the money was going to Julio and Oscar Cabrera.
Before his
arrest, Gonzales told Martinez and Hernandez not to talk to the police. After Gonzales and Soto were arrested,
Valenciano waved Martinez over as she was driving one day. He told her not to talk to the police and
that there was no evidence. He said if
she needed to talk to him, she should do so in person, so there would be no
phone records.
When
Martinez was interviewed by Detective Christine Bentley, she did not tell the
truth because she was afraid of Oscar Cabrera, who had threatened both her and
Hernandez. Martinez believed Oscar would
kill her if she cooperated with the police.
On July 31, 2004, Oscar had gone to her parents’ house looking for her,
but she was not there. She arranged to
meet Oscar at Valenciano’s parents’ house later that day. When she arrived, she saw Valenciano’s father
was bleeding from a wound on his head.
Oscar had asked Valenciano’s father for money to post bail, and when he
refused, Oscar slashed his head open.
Martinez met with Oscar later and he reminded her that people who talk
to the police end up dead.
Martinez
lied about a number of things over the course of several interviews with
Bentley, including that Gonzales was working on his car at his grandmother’s
house on the morning of the murder.
After being arrested and threatened with prosecution, Martinez told
Bentley essentially the same story that she testified to at the trial. She did not recall, however, asking Bentley
to fabricate evidence against Soto.
After the first time she testified in the case, she moved out of the
area and changed her name.
8. Alberto Anguiano and Maria Zamora
Alberto
Anguiano worked with Valenciano and Gonzales in Watsonville for a couple of
months at Sambrailo Packaging. They
became friends and Anguiano cut their hair weekly. He knew that Valenciano was a gang member
because he had a tattoo that read “Norteno” on the back of his head. Anguiano knew that Gonzales was also a gang
member because he had a tattoo of the “Northern star” on his left arm, and had
a fade haircut with a “Mongolian” ponytail.
On July 25,
2004, at 10:20 a.m., Anguiano called Gonzales, who answered, but seemed
hurried. Gonzales passed the phone to
Valenciano who asked Anguiano for Maria Zamora’s phone number. Valenciano was interested in Zamora, who also
worked at Sambrailo’s. Before hanging
up, he told Anguiano to call him later.
Later that afternoon, Anguiano called Valenciano at his house, but could
not reach him and did not leave a message.
Zamora
confirmed she worked with Valenciano and Gonzales at Sambrailo’s Packaging for
a few months. At about 11:18 a.m. on
July 25, 2004, Valenciano called Zamora on her cell phone. She told Valenciano she was on her half-hour
lunch break at work. He did not ask her
for a ride and never said he was in trouble.
9. Further investigation,
Meredith
Baker used to date Soto in high school.
After graduating, she went to college and Soto went to “jail” so she did
not see him for approximately three years.
At 10:31 a.m. on July 25, 2004, she got a call from Soto. Soto hurriedly said, “Meredith, I really need
you to come get me. Can you please come
get me.” Meredith refused saying she
needed to get ready for work, but Soto pleaded with her, “Please, I need you to
do me a favor. Please come get me.” She was upset and struggled with her feelings
for Soto, answering “I can’t go through this again.” She asked where he was and Soto said he was
off Frederick Street. At a later date,
Soto’s sister Doreen came into Meredith’s workplace and told her she did not
need to testify. If Meredith did
testify, Doreen said, it would be her fault if Soto went to jail. Meredith believed that Soto was affiliated
with the Nortenos. She did not hear from
him again.
Meredith’s
mother, Linda Baker, saw her daughter was upset because she wanted to help Soto
but could not. She later checked the
caller ID on Meredith’s phone which showed the 10:31 a.m. phone call came from
Gonzales’s phone number. Linda contacted
the police and Detective Bentley came to their house.
At 1:30
p.m. on the day of the shooting,
County Sheriff’s Deputy Daniel Brierley was assigned to find the suspect
vehicle, a 1999 green Honda Accord with license plate number 4BFR732. He went to every known Norteno gang house in
Santa Cruz and started a grid search. At
the 400 block on Owen Street, with Clinton as the nearest cross street,
Brierley found the vehicle unoccupied next to a bamboo hedge. Other officers arrived to secure the scene
and assist in collecting evidence. In
the thick bamboo hedge, the officers found an expended red 16-gauge shotgun
shell, a sawed-off double-barrel 16-gauge shotgun, and a revolver loaded with
three .38-caliber bullets. When the
vehicle was subsequently searched, officers found a glove and collected samples
of what appeared to be blood and tissue from its interior.
On July 25,
2004, Lore James lived at the corner of Clinton and Owen Street in Santa
Cruz. Between 9:30 and 10:30 a.m., she
left the house and saw a green car across the street on Owen. She heard loud rustling noises in the bushes
across the street. As she walked out to
the sidewalk, she heard a car door close, and saw three young Hispanic men,
between 18 to 25 years old, walk from the green car across the street toward
her. They talked softly to each other,
and one man turned and looked directly at James as he passed. She drove away, picked up her son and
returned to find police securing the area.
James told Officer Northrup she had seen three Hispanic men in their
early 20s, five feet 10 inches to six feet tall. One had a medium build, dark complexion and
wore a red bandana and baggie jeans.
Another had a medium build, wore a white tank or v-neck shirt, baggie
jeans, a baseball cap and carried a white bag.
At
approximately 7:52 p.m. on July 25, 2004, Katy O’Doyle, whose front door faces
Clinton Street, found a black Raiders sweatshirt in her backyard. She turned the sweatshirt over to the
police. A couple of days later, Timothy
Field, who lived at Darwin and Clinton Streets, found a red sweatshirt, a baseball
cap, and a pair of gloves inside the green waste trash can on the side of his
home.
A DNA
analysis on the red sweatshirt revealed three contributors from a stain on the
back of the neck area, near the tag.
Escobar’s DNA was definitely present, and Soto and Valenciano could not
be excluded as contributors to the mixture. Gonzales was excluded as a contributor of the
DNA found on the sweatshirt.
Several
different samples from the baseball cap were taken for DNA analysis. The bill and outside of the cap contained
only Escobar’s DNA. The tag included a
mixture of DNA, with Valenciano representing the major contributor with at
least two minor contributors. Soto could
not be excluded as a possible minor contributor to the DNA on the tag.
One of the
two gloves from the trash can contained a mixture of DNA consistent with two
donors, Escobar and Soto. Soto could not
be excluded as a possible major contributor and Escobar was a possible minor
contributor. The other glove contained
only Escobar’s DNA. The glove found in
the Honda contained DNA from Escobar and Gonzales. Soto and Valenciano were excluded as possible
contributors of DNA on the glove.
Samples
from the black Raiders sweatshirt included DNA from Escobar and Gonzales, and
Escobar’s blood was also found on the sweatshirt. Soto and Valenciano were excluded as contributors
to the DNA found on that garment.
Santa Cruz
Police Detective Warren Barry, along with other officers, searched the
neighborhood where the Honda and weapons were found, looking for witnesses or
businesses which may have videotapes. He
reviewed a security videotape from a gas station mini-mart at Frederick and
Soquel, but did not see any unusual activity and returned it. A few days later, he saw a picture of Soto at
a police briefing and recalled seeing a man on the videotape with the same tattoo
on the back of his neck and short black hair.
He mentioned this to Northrup, who went to the mini-mart and obtained
the video. The video showed Soto
purchasing a soda at the store on July 25, 2004, at about 11:18 a.m. Barry obtained phone records for the payphone
outside the mini-mart, and those records showed three calls were made at about
the time of the murder: one at 11:03
a.m. to Valenciano’s mother; one to Jose Carranco, who lived with Valenciano’s
sister, at 11:13 a.m. and one to Zamora at 11:14 a.m.
On July 30,
2004, Bentley went to Hernandez’s workplace and showed her a still photo from
the videotape to see if she could identify the person as Soto. When she looked at the photo, she cried and
became hysterical, yet claimed she could not recognize the person in it since
it was too blurry.
According
to Dr. Richard Mason, forensic pathologist for the Santa Cruz County Coroner,
Escobar was killed by a contact
name="_ftnref5" title="">[5] shotgun
wound to the head.
10. Jailhouse informant’
Nonu Randy
Aluni was in the Santa Cruz jail, awaiting sentencing for a bank robbery, when
he met Soto, Gonzales and Valenciano.
Aluni, who was facing a sentence of 25 or 30 years for his role in the
bank robbery, agreed to testify in this case in exchange for a sentence of
between 10 and 13 years.
At separate
times, Aluni was housed with Valenciano and Soto. Soto told Aluni he was a member of VGV and he
discussed the shooting. Soto said the
night before the shooting he and Gonzales planned to rob a liquor store in Santa
Cruz, and he and Gonzales drove to Santa Cruz that morning in Hernandez’s
car. They first went to Valenciano’s
house and picked up the guns. When they
got to the liquor store, there were too many people there, so they drove around
the block and saw some guys playing poker.
They drove around the block again and pulled over by the poker
players. Valenciano stayed back at the
car to listen to the police scanner.
Gonzales and Soto walked up to the men and said, “Give me your
money.” One guy disrespected Gonzales so
he shot him. As they were walking away,
Soto yelled out another gang name, “Northside,” to throw them off.
They got
back in the car, drove down the block, hid the guns, threw the clothes away and
started running towards the creek.
Valenciano threw the police scanner, its batteries and the car keys in
different directions. Soto went with
Gonzales to call Hernandez, and he told her to report the car stolen. They caught up with Valenciano who was
calling for a ride from a payphone at a church.
The three got a ride to Hollister.
Soto showed
Aluni a picture of himself taken by a gas station surveillance camera and asked
if he could see blood on Soto’s shirt.
Soto claimed they committed the robbery because they needed the money. He also said his father owned a mechanics
shop and someone there could provide him with an alibi.
At some
point, Soto found out that Aluni was talking to the district attorney, and he
threatened to kill Aluni’s family if he testified. Soto had Aluni write a letter saying he made
the whole thing up, and that he had obtained information about the case by
reading Soto’s paperwork when Soto was not in the cell. Aluni wrote a letter to his own attorney,
Charlie Stevens, and another to Soto’s attorney. In his letter to Stevens, Aluni lightly wrote
in pencil that he was being threatened.
Aluni also told Stevens he had been threatened by Soto.
About a
month before he was housed with Soto, Aluni was housed with Valenciano who also
told him about the shooting several times.
Valenciano’s version was consistent with Soto’s, but he added the detail
that the guns used belonged to their gang, VGV.
Soto had the revolver and Gonzales had the shotgun, which they hid in
some bushes after the robbery/shooting.
They also hid some of their clothing in a garbage bin, before running to
a lake or creek where they discarded the police scanner and car keys.
Aluni met
Gonzales once, for 10 or 15 minutes, while in a holding cell going into
court. He told Gonzales he already knew
why Gonzales was in jail, and Gonzales described the robbery and shooting in
much the same way as Soto and Valenciano.
Gonzales also admitted killing Escobar.
11. Gang evidence
Santa Cruz
County Sheriff’s Office Sergeant Roy Morales testified as an expert on criminal
street gangs. According to Morales, in
California there are two sets of Hispanic criminal street gangs, Nortenos and
Surenos, and those gangs are normally rivals.
Nortenos associate with the color red, the letter “N” and the number 14
(because “N” is the 14th letter of the alphabet). Surenos associate with the color blue, the
letter “M” and the number 13 (“M” is the 13th letter of the alphabet).
Norteno
gang members are expected to help fellow gang members in any way they can, such
as committing robbery. Varrio Green
Valley, VGV, is a subset of the Nortenos in the Watsonville area and, in 2004,
was one of the most violent gangs in the area.
In the city
of Santa Cruz, there are several Sureno gangs, including the Beach Flats
Surenos, Santa Cruz Eastside, Mexican Side Locos, Villa San Carlos Boys and
Brown Pride Santa Cruz. Morales said
that Frankie Ayala, a known member of Brown Pride Santa Cruz, lived at 318
Spruce Street, though Morales believed that Ayala was incarcerated at the time
of the shooting.
In a gang,
“violence equals respect.” Violence
instills fear in the community, so residents will not report gang-related
crimes or cooperate with police investigating such crimes. Violence intimidates rival gang members from
entering the other gang’s territory or challenging the other gang. A gang member who is involved in a violent
act is feared and gains more respect from his fellow gang members and with
rival gang members.
Gang
members perceive disrespect in a variety of ways, such as a “mad dog,” or dirty
look, or challenging a gang member’s affiliation. Where a gang member feels he has been
disrespected, he is expected to retaliate, which may include killing someone.
Morales
opined that on July 25, 2004, Soto, Valenciano, Julio Cabrera, and Gonzales
were all members of VGV. At that time,
VGV’s primary gang activities were narcotics sales, serious assaults and
homicides.
Morales’
opinion about Valenciano’s membership in VGV was based on his prior contacts
with Valenciano, Valenciano wearing VGV clothing and his numerous associations
with gang members. On July 4, 2007,
kites
removed from Valenciano’s cell.
Valenciano also had gang tattoos including a tattoo of his last name
inscribed within a Huelga bird, as well as dots on his wrists representing the
number 14.
showed him with other known Norteno gang members, such as Oscar and Julio
Cabrera and Gonzales; making Norteno hand signs; and wearing Norteno-affiliated
clothing, such as a red football jersey featuring the letter “N.”
Morales met
Gonzales in the 1990s and has had contact with him over the years, always in a
law enforcement capacity. Based on his
personal contacts with Gonzales, as well as Gonzales’ clothing, his self-admission,
and the results of numerous probation searches at Gonzales’ home, Morales
opined that Gonzales was an active member of VGV on July 25, 2004. When shown a photo of Gonzales with a
Mongolian haircut, Morales said that style of haircut was associated with
Norteno gangs. Gonzales was convicted
for participating in a VGV “jump-in”
occurred in May 2000.
Oscar
Cabrera was a regiment leader for the Nuestra Familia in Watsonville. The Nuestra Familia is the chief Norteno
prison gang, which seeks to control all Northern criminal street gangs and
filters out orders for those gangs to follow.
In September 2008, John Mendoza, the overall representative of the
Nuestra Familia in charge of its different regiments, turned state’s evidence
and confirmed that Oscar worked for and reported to him (Mendoza) and, along
with other representatives, collected taxes from the Norteno gangs. In July 2004, the average tax on a gang
member was $200 per month. Failure to
pay the tax would lead to an assault, and members paid because they were
intimidated and feared Nuestra Familia.
Regarding
VGV members and their involvement in gang-related crimes, Morales testified to
the following:
On April 4,
2004, Juan and Jose Hernandez (brothers) confronted a Hispanic man and his
young son who were on school grounds to play soccer. The man had a shaved head and his shoelaces
were blue.
his gang affiliation and accused him of being affiliated with a Sureno
gang. They proceeded to beat him in
front of his son. Juan and Jose were
convicted of assault with a deadly weapon with gang enhancements. Morales opined that on July 25, 2004, Juan
was a VGV member based on his tattoos, gang associations and participation in
gang crimes. Jose was affiliated with a
gang called Watson Varrio Norte.
On
September 19, 2000, Michael Deanda, Julio Cabrera and Soto approached a
14-year-old boy near the Green Valley Apartments. Deanda recognized the boy and believed he was
a rival gang member. The three men asked
him for his gang affiliation, then chased after him. They punched and kicked him after they caught
him, and the boy eventually identified Deanda and the other two as his
attackers. Deanda was convicted of
felony assault with force likely to cause great bodily injury with gang
enhancements. Soto was neither arrested
nor convicted. Based on his numerous
contacts with Deanda, his self-admission and his participation in a gang crime,
Morales opined that Deanda was an associate of VGV on September 19, 2000. Morales was of the opinion that Julio Cabrera
was a member of VGV on July 25, 2004, based on his tattoos, numerous
associations and participation in several gang crimes.
On November
11, 2000, Joseph Ramirez, Soto and Julio Cabrera went to a party, but were not
allowed inside. The person who refused
to admit them walked outside and, while Soto stood there with a box cutter,
Ramirez asked the man for his wallet.
The victim identified Ramirez and Soto.
Morales opined that, on November 11, 2000, Soto was a VGV member based
on his numerous associations, his tattoos which read “VGV,” “14,” as well as
one of a Huelga bird, and his participation in a gang crime. Morales was of the opinion that Ramirez was
also a gang member on November 11, 2000, based on his numerous contacts with
law enforcement and participation in gang crimes, and was still a member on
July 25, 2004.
On March
30, 2003, at Rolling Hills Middle School, two to three blocks from the Green
Valley Apartments in Watsonville, Ramirez exchanged dirty looks with three men
sitting on a bench. The three men began
to walk home, and Ramirez confronted one of the men, asked for his gang
affiliation and asked him to lift his shirt, so Ramirez could see his
belt. When the man lifted his shirt,
Ramirez shot him and ran off. Another
one of the men chased and caught Ramirez, struggling with him. Ramirez shot the second man, killing him. Ramirez was eventually apprehended in
Colorado. He was convicted of murder and
attempted murder with a gang enhancement.
Morales opined that Ramirez was a VGV member at the time of the
shooting, and that this was a gang-related murder.
The
prosecutor posed the following hypothetical to Morales, asking him to assume
the following facts: “There were three
members of the Norteno criminal street gang VGV who planned to commit a
robbery”; “they get a shotgun and a pistol”; “they drive to Sureno territory”
or “Santa Cruz and they go to a card game in an apartment complex driveway on
Spruce Street”; “they park on the street blocking the driveway”; “[t]hey get
out of the car and approach the seven men playing cards”; “one of the VGV gang
members has a shotgun, one has a pistol and one hangs back near the street”;
“guns are drawn”; “[t]he armed gang members point their guns at the players and
demand money and . . . several of the players throw money onto the ground”;
“one of the players refuses to give his money and insults the man with the
shotgun”; “[t]he man raises the shotgun to the uncooperative victim’s head and
pulls the trigger, killing him”; “both the armed men finish collecting the
money off the ground and run to the car”; “[a]ll three gang members get into
the car and drive away.”
Assuming
these facts, Morales opined that the offenses were gang-related. Three VGV members were involved, they drove
into a Sureno territory, committed a robbery, each person played a role in the
offense and once it was over, they returned to Watsonville. The gang’s reputation with both rival gangs
and with other Norteno gangs was enhanced, and the community was
intimidated.
case
1. Soto’s defense
Soto
testified and admitted to being a Northern Hispanic and being a member of the
VGV gang in Watsonville. He said he
claimed VGV only because he lived in the Green Valley Apartments. He denied paying gang taxes, being obligated
towards fellow gang members or having enemies among rival Sureno gangs. In 2004, Soto knew of only one other VGV
member. Soto said Julio Cabrera and
Valenciano were not gang members, and he only recently learned that Gonzales
was a gang member. When asked about his
various tattoos, Soto denied they had any gang-related meaning. He also denied ever being jumped into a gang,
having any relatives who were gang members or participating in any gang
activity while incarcerated.
He admitted
to being in Santa Cruz on the morning of July 25, 2004, but said he was there
to look for a girl at the Santa Cruz Bible Church. He had met the girl a few days earlier and
she told him she attended services at that church. He went to the church the morning of the
shooting to look for her during a break between services.
The night
before, he stayed at Martinez’s house with his friend, Hernandez. Hernandez often gave him rides in her green
Honda. Gonzales asked him if he could
borrow Hernandez’s car the next day, but did not say why he needed it.
The morning
of July 25, Soto asked Hernandez for the keys to her car, saying he wanted to
go to church. She offered to give him a
ride, but he did not want her to know he was going to try to find a girl, so he
declined her offer. Eventually, she gave
him the keys without much of an argument.
He woke up
Gonzales and they drove off. Gonzales
drove and the plan was to drop Soto off at the church, while Gonzales used the
car. They stopped at Valenciano’s house
to pick up Soto’s cell phone and Valenciano agreed to give Soto a ride back
from Santa Cruz about 11:00 a.m. Gonzales
and Soto drove to Santa Cruz and Soto got out by the church. Gonzales drove away.
He wandered
around the church area for about 20 minutes, but could not find the girl. A stranger approached him and they had a
brief conversation, but Soto could not recall what they talked about or what
the man looked like.
Gonzales
suddenly came up to Soto on foot and asked if he could give him a ride “like
right now.” Soto had not told Gonzales
where he would be in the church complex and the bench on which he was sitting
was not visible from the street, but somehow Gonzales found him. Soto called an ex-girlfriend, Baker, whom he
had not seen in four years, but she could not pick them up.
Gonzales
gave Soto his phone, telling him to call Hernandez and tell her to report her
car was stolen. At about that time, Soto
saw a green Honda driving down the street with people in the front and back,
and Soto realized that Gonzales needed to get rid of the car. He did not ask questions because he did not
want to be involved. Soto called
Hernandez and told her to report the car had been stolen. She did not want to do so, but he repeated
she should “fucking report it.”
He and
Gonzales walked up the street to the gas station where Valenciano was supposed
to pick him up. He stopped in the
station’s store to buy a drink, and heard a man say in broken English that he
had just seen his friend shot.
Valenciano
picked them up, dropped Gonzales off and took Soto back to his (Valenciano’s)
house. Soto watched some television,
then walked to the Green Valley Apartments.
The numerous calls he made during this period to Julio Cabrera, Oscar
Cabrera, Gonzales, Valenciano and Hernandez were simply him trying to find a
ride. He eventually met up with Oscar
and spent the night at the Cabrera residence.
He did not see Martinez at the Cabrera house.
From that day
to the date of his arrest, he never asked Gonzales about the car or what
Gonzales was doing that morning, even after Hernandez told him about the
shooting. He did not want to be involved
or go back to prison. He repeatedly said
he never asked Hernandez whether she gave his name to police, though on
cross-examination he admitted he might have told her not to mention his name.
While
incarcerated, Soto often talked to Aluni about his case, discussing how
Martinez’s statements were inconsistent, among other things. Soto also had “stacks of discovery” papers in
his cell and Aluni was sometimes alone in Soto’s cell
Soto would get a visit from his lawyer or family.
Aluni gave
Soto a letter at some point, saying “Give this to your attorney” and Soto did
so, without looking at the letter. After
that, Soto’s attorney told Soto to be careful around Aluni. When asked how he knew the contents of that
letter, since it was not part of the discovery, Soto said a different letter
from Aluni to a deputy district attorney, which was part of the discovery,
mentioned that Aluni had written a similar letter to Soto’s attorney. Soto never threatened Aluni at any time, but
Aluni was lying in exchange for a reduced sentence.
2. Valenciano’s defense
Valenciano
did not testify, but a private investigator, Gregory Lepore, testified in his
defense. Lepore spoke with Anguiano
three times in April and October 2006, but Anguiano had no specific
recollections of a phone conversation with either Gonzales or Valenciano on
July 25, 2004. Anguiano denied telling
the district attorney’s investigator that Valenciano answered Gonzales’ phone
and talked to him. Anguiano later told
Lepore he recalled speaking with Gonzales, but not Valenciano. He had no memory of the call he made to
Valenciano’s home phone number later in the day, though the phone records
showed he made one. However, in his
interview with Lepore, Anguiano used plural pronouns, stating “they” called
him, and he called “them” back.
C. Verdict and sentencing
After
deliberation, the jury found Soto and Valenciano guilty on all nine counts and
found true each of the special allegations.
Soto waived a jury and stipulated to a court trial on the allegations he
had suffered two prior strike convictions.
His subsequent motion to strike those two prior strikes was
granted. The court also denied Soto’s
and Valenciano’s motions for a new trial, which were premised on the admission
of Gonzales’ out-of-court statements to Martinez and Aluni.
Neither
Soto nor Valenciano raise sentencing contentions on appeal; therefore we need
not set forth their sentences in detail.
Soto and Valenciano were each sentenced to determinate terms of 34 years
consecutive to indeterminate terms of 50 years to life.
II. Discussion
A. Gang expert’
Valenciano (joined by Soto) argues
that the trial court erred in allowing the prosecution’s gang expert to provide
opinions on issues relating to the criminal street gang enhancement based on
hypotheticals rooted in the facts of the case.
Because the proffered hypotheticals closely tracked the prosecution’s
version of the case, the opinion amounted to an improper comment on the
defendants’ state of mind.
After briefing was completed in this
case, the California Supreme Court decided People
v. Vang (2011) 52 Cal.4th 1038 (Vang),
holding that it is permissible for gang experts to offer opinions based on
hypotheticals, even hypotheticals which closely track the evidence presented at
trial. (Id. at p. 1051.) Valenciano
submitted a supplemental letter brief addressing Vang, finding support in the concurring opinion of Justice Werdeger
for his claim that the expert’s opinion in this case was unnecessary to the
jury’s decisionmaking process. We
invited the People to submit a supplemental letter brief on the case as
well. Having reviewed those briefs, we
conclude that the holding in Vang is
dispositive here and the testimony was properly admitted.
As stated in Vang, “the prosecutor’s hypothetical questions had to be based on
what the evidence showed these
defendants did, not what someone else might have done. The questions were directed to helping the
jury determine whether these
defendants, not someone else, committed a crime for a gang purpose. Disguising this fact would only have confused
the jury.” (Vang, supra, 52 Cal.4th
at p. 1046.)
Similarly, in this case, the gang
expert’s testimony was permissible opinion testimony in response to a
hypothetical question. The expert did
not give an opinion on whether Soto and Valenciano took part in the shooting
and robbery as described in the hypothetical.
Further, the expert did not opine whether Soto and Valenciano had the
necessary mental state to commit the crimes alleged. Although the expert’s opinion was relevant to
the ultimate question of their intent, the testimony explored a gang member’s
expectations and probable motivations, and was not tantamount to an opinion on
whether or not Soto and Valenciano committed the charged offenses. As in Vang,
the gang expert properly could “express an opinion, based on hypothetical
questions that tracked the evidence,” whether the shooting and robbery, if the
jury found they were committe
| Description | On the morning of July 25, 2004, defendants Juan Lorenzo Soto and Francisco Javier Valenciano, Jr., along with Anthony Gonzales, drove from Watsonville to Santa Cruz to commit a robbery. They were armed with a shotgun and a pistol. The liquor store they intended to rob was too busy, so the three men decided to rob a group of men they had seen playing cards in a nearby driveway, with a pile of money on the ground. When Gonzales, armed with the shotgun, and Soto, armed with the pistol, approached the card players and directed them to hand over their money, all but one of them, Rodolfo Escobar, complied. Escobar instead insulted Gonzales, and picked up the money off the ground. As one of his friends implored him to cooperate with the gunmen, Escobar said he had to work hard for his money to support his family, and that if Gonzales wanted his money, he should “ask [his] mama for [it].†Gonzales pressed the shotgun against Escobar’s forehead and pulled the trigger, blowing off the top of his head. Gonzales and Soto collected the money off the ground, went back to the car, where Valenciano had been acting as a lookout, and drove off. Following a jury trial, Soto and Valenciano[1] were convicted of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1), count 1);[2] first degree murder (§ 187, subd. (a), count 2); second degree robbery of Escobar, Antonio Baires, Jose Edgardo Navarro, Gerardo Navarro and Jose Saul Ayala Baires (§ 211, counts 3-7); and attempted second degree robbery of Francisco Ayala and Manuel Ayala (§§ 664, 211, counts 8 & 9). The jury also found true the allegations that counts 2 through 9 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that a principal personally discharged a firearm causing death as to counts 2 and 3 (§ 12022.53, subds. (d), (e)(1)), and that a principal personally used a firearm in the commission of counts 4 through 9 (id., subds. (b), (e)). Soto and Valenciano were each sentenced to total terms of 84 years to life, consisting of determinate terms of 34 years followed by indeterminate terms of 50 years to life. |
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