P. v. Torres
Filed 8/7/13 P. v. Torres CA4/2
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Appellant,
v.
JESSE
TORRES,
Defendant and Respondent.
E054937
(Super.Ct.No. FWV1001444)
O P I N I O N
APPEAL
from the Superior Court of
County. Jon D.
Ferguson, Judge. Affirmed.
Patricia
J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and William M. Wood and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A
jury found defendant and appellant, Jesse Torres, guilty as charged of two
counts of attempted murder and two counts of
for stabbing two brothers, Marcos Arroyo and Manuel Delgado, at a neighborhood
party. (Pen. Code, §§ 664, 187,
subd. (a), 245, subd. (a)(1).)
were premeditated and found great bodily
true on all four counts. (§§ 664,
subd. (a), 12022.7, subd. (a), 186.22, subd. (b)(1).) Defendant was sentenced to 10 years plus 30
years to life in prison.
name="_ftnref2" title="">[2]
On this appeal, defendant claims
insufficient evidence supports: (1) the
intent to kill element of his attempted murder convictions; (2) the
premeditation findings; and (3) the gang enhancement findings. He also claims the court abused its discretion
and violated his due process right to a fair trial in refusing to bifurcate the
gang allegations and erroneously denied his motion for a new trial based on
ineffective assistance. We find these
claims without merit and affirm the judgment in all respects.
II.
FACTS AND PROCEDURAL HISTORY
A.
1. The Stabbings
On May
22, 2010, Carla Jimenez and her boyfriend, Jesus Delgado, were
living on West Park Street in Ontario with Jesus’s
brother, Romero Delgado, and Carla’s daughters.
Jesus began holding a barbecue and party in their front yard. Jesus’s other brothers, Manuel Delgado,
Marcos Arroyo, and Julian Atunez, attended the party as did Carla’s friend,
Jose Prillwitc, and several children.
The house was surrounded by a three-foot high fence and a liquor store,
Moons Market, was next door.
Around 5:00
to 6:00 p.m., defendant’s younger brother, Hilario Martinez,
who was known as “Little Looney,†was standing near the pay telephone in front
of Moons Market and threw a bottle toward Carla and Jesus’s front yard. The bottle broke, causing pieces of glass to
fall into the yard. At that point, many
people were still in the yard, including Jesus, Marcos, Manuel, and Julian, and
all of them had been drinking. Carla,
Jose, and Romero were not drinking.
Jesus stepped outside the yard, with
Julian and Carla behind him, and yelled to a group of 16 to 17-year-old males,
“who threw the bottle?†Hilario, who was
16 to 17 years old at the time, defiantly said, “it was me,†and used
profanity. Jesus said, “can you please
calm down because we are having a barbecue.
My family is here. My daughter is
here.†Jesus, Julian, and Carla then
walked back into the yard.
Hilario said, “I’m going to go get my
brother Looney,†meaning defendant.
Jesus said, “go bring him. He’s
our friend. We’re cool.†Julian also told Hilario he knew Looney and
said something like, “Yeah. Go bring
him.†Hilario said he was going to get
Looney again and showed Julian his phone, indicating he was calling
Looney.
Carla also knew defendant and was
friendly with him. About a week earlier,
defendant came by the house and had a beer with Jesus. Carla and Jesus knew defendant belonged to a
gang because when he walked by or came to their house he would say, “This is
Black Angels, Homey,†or “Onterio Black Angels,†in a friendly way. Julian also knew defendant was a gang member
because “everybody†who lived in the area knew.
By 9:30 p.m., Jesus,
Julian, Marcos, and Manuel were still in the front yard and each had drunk
several beers. A light on Carla’s house
was illuminating the front yard, and there was another light in front of Moons
Market.
Defendant and Hilario walked up and
stepped into Carla and Jesus’s yard.
Defendant looked angry and asked Hilario, “Who was it?†Hilario pointed out Julian and said, “That
guy right there.â€
Defendant said to Julian, “Hey you. Come outside.
I want to talk to you.†Julian,
defendant, and Hilario walked to the front of Moons Market. Jesus and Marcos walked behind Julian. Julian was unarmed and thought defendant was
just going to talk to him.
Defendant said, “What’s up,†and just as
Julian “pointed at Little Looney [Hilario] to explain to Big Looney [defendant]
what was going on,†defendant punched Julian in the face, knocking him to the
ground. The punch caused Julian to
momentarily black out and defecate in his pants. Defendant punched Julian several more times
as Julian regained consciousness and tried to cover himself.
Carla and Manuel saw defendant sit on
Julian’s legs, grab him by the neck with his left hand, and use his right hand
to reach into his back pocket, apparently in an attempt to remove
something. Believing defendant was about
to pull out a knife, Carla yelled, “oh, my God!†Marcos grabbed defendant by the shoulder, and
asked him, “Can we talk?†Marcos also
said he did not want any trouble and asked defendant to calm down. Jesus told defendant to “chill†and also
tried to talk to him. Either Jesus or
Marcos pulled defendant off Julian, and Julian got up and ran inside the
house.
At this point, 5 to 13 other men were
with defendant. Carla believed the men were Ontario gang members
like defendant. One of the men punched
Jesus in the jaw, knocking him to the ground unconscious. Some of the other men then began throwing
bottles at Carla and Jesus’s yard.
Defendant pulled a knife from his back
pocket, opened the knife, and said, “You guys fucked up,†several times. The knife had a six-inch blade. Defendant used his left hand to grab Marcos
from behind his neck and left shoulder, pulled Marcos near his chest, and used
his right hand to stab Marcos in the stomach twice. Marcos began to fall to the ground, then got
up holding his stomach. Carla yelled
that defendant had a knife and called 911.
Carla and Jose assisted Jesus to the
house while Manuel tried to assist Marcos, who was bleeding from his two stab
wounds. Defendant and five or six other
men then rushed at Manuel, and one of the other men punched Manuel in the face
and knocked him to the ground. Defendant
and the five or six men began kicking Manuel in the face and back. Defendant then put his left knee on Manuel’s
hand as Manuel lay on the ground, stabbed Manuel twice in the stomach, then
sliced Manuel’s forehead with the knife.
While Manuel was being attacked, Jose
helped Marcos inside the house. Manuel
also went into the house after he was stabbed.
Jose grabbed a butcher knife from the kitchen and ran outside. At this point, defendant and a number of his
male associates were still outside.
Defendant and his associates saw Jose with the knife, and defendant
laughed, pointed to the lower portion of his forearms, and loudly said, “Black
Angels.†Defendant and his associates
ran off, and defendant was the last to leave.
Marcos was bleeding from two holes in his
lower abdomen, blacked out, and was taken by ambulance to the hospital. He had surgery that left two scars on his
abdomen.
Manuel had two stab wounds in his
his forehead, and was also taken to the hospital. The two stab wounds in Manuel’s stomach
required one stitch each to close, and the stab wound on his forehead required
seven stitches to close. Manuel did not
require surgery and was released from the hospital the next afternoon with pain
pills.
2. The
Investigation and Aftermath of the Stabbings
Ontario Police Officer Gabe Gutierrez
assisted in investigating the stabbings.
After hearing defendant was involved, he went to defendant’s house on
South Oakland in Ontario on the night of May 22, 2010, but defendant was not
home. Nor was he at his mother’s house
down the street. On June 16, 2010,
defendant was taken into custody at a known gang hangout in Ontario. The knife used to stab Marcos and Manuel was
never found.
Manuel was initially afraid to identify
anyone as being involved in the incident because he believed they were gang
members. He was more comfortable
testifying at the preliminary hearing.
Carla moved out of her house because she feared defendant’s gang status
and retaliation from gang members.
Julian moved away from Ontario two to three weeks after the
incident.
3. Expert Gang
Testimony
Officer Gutierrez testified as a gang
expert for the prosecution. He was
familiar with an Ontario gang known as South Side Onterio (SSO). The gang has the largest membership of any gang
in the City of Ontario, some 500 documented members and associates, and few
other gangs will challenge them. The
purpose of the SSO is to make money, and its primary activities to fulfill that
purpose include homicides, stabbings, assaults with deadly weapons, narcotics
sales, extortion, witness intimidation, and other crimes ranging down to
graffiti.
The house on Park Street where the
stabbings occurred is “in the heart†of SSO gang territory. Respect is “huge†with Hispanic street
gangs. The gang will not tolerate acts
of disrespect in its territory. If
someone disrespects a gang member’s brother, the member would not address the
matter as an individual, but would come as a gang member and with the backing
of his entire gang to “take care of business.â€
Fellow gang members could be called to the scene to assist in an assault.
SSO is the umbrella name for three levels
of Ontario gangs; the top level is Black Angels. Black Angels is a multigenerational familial
gang and consists of two cliques called Belmont Street and Sunkist Street. The gang uses hand signals, tattoos, and
other symbols to signify membership, and its members have “monikers†or gang
nicknames.
Officer Gutierrez was familiar with
defendant. On May 22, 2010, defendant
was a member of the Sunkist Street clique of the Black Angels and his gang
moniker was “Looney.†Defendant was a
self-admitted gang member and since 1993 had been contacted numerous times by
law enforcement. He had multiple
gang-related tattoos, including a “B†on one forearm, an “A†on his other
forearm, and “Fuck a Job†on the side of his head, indicating he is a full-time
gang member and a regular job is not for him.
Officer Gutierrez testified concerning
the Street Terrorism Enforcement and Prevention Act predicate offenses
committed by other Blank Angels members, namely, two attempted murders in 2007
and 2008. In one of these attempted
murders, on May 8, 2008, Black Angels gang member Andrew “Dicer†Navarro
stabbed someone at a party and rendered him a quadraplegic while repeatedly
yelling “Black Angels†as he committed the stabbing. Officer Gutierrez opined that defendant
stabbed Marcos and Manuel for the benefit of his gang. He shouted “Black Angels†after the
stabbings, and pointed to the “B†and “A†tattoos on his forearms. The crimes benefited the gang because they
would make anyone in the neighborhood think twice before “messing with†another
Black Angels gang member.
B.
Defendant’s
younger brother Hilario testified he was in the ninth grade at the time of the
stabbings. He denied being in a gang,
did not think defendant was in a gang, and did not think defendant’s tattoos
were gang related. During the evening of
May 22, 2010, he went to his friend Enrique’s house located across the street
from Moons Market. He and Enrique were
with two girls and heard the party across the street. Hilario knew Julian, Marcos, Manuel, and
Jesus from playing basketball with them.
Julian walked up to Hilario next to the
market and “aggressive[ly]†asked him
whether he had thrown a bottle in the street. Hilario denied throwing the bottle and told
Julian he had come over to the market to find out who had. Manuel, Marcos, and Jesus then walked up,
surrounded Hilario, and accused him of throwing the bottle. All of them appeared to be drunk. Fearing he would be attacked, Hilario said he
was going to call his brother “Looney.â€
He used his cell phone to call defendant and told him he was being
picked on. After calling defendant,
Hilario walked away from Manuel, Marcos, and Jesus, and went to Enriquez’s
house.
Ten to 15 minutes later, defendant
arrived at the front yard in front of Enriquez’s house, on foot. He brought a “friend†with him and smelled
like alcohol. Hilario told defendant the
people picking on him were across the street.
Hilario, Enriquez, defendant, and the “friend†then walked across the
street to the party. Defendant called
Julian over to talk to him and they walked near the market. Marcos, Manuel, and Jesus followed them. Marcos had a bottle in his hand. Hilario followed as well.
Hilario saw Julian throw a punch,
defendant dodged it, and a fight ensued between defendant and Julian. Julian got on top of defendant. Then Manuel and Hilario began throwing
punches at each other. Hilario then
fought with Jesus. Hilario could see
someone throwing bottles. While Hilario
was fighting with Manuel and Jesus, he did not see what was happening with
defendant. Eventually, Hilario saw
defendant on the ground with Julian and Marcos kicking and punching him. Julian had a bottle in his hand. Hilario ran to defendant, got him off the
ground, and the two of them began running away with bottles breaking all around
them.
On cross-examination, Hilario admitted he
would lie for defendant, but claimed he was not lying now. He did not think defendant was a gang member
despite his tattoos. He said that to
start the fight, Julian pushed defendant but did not punch him. Then, on redirect examination, Hilario said
Julian threw the first punch.
Hilario asked his friend Jerry Morales to
testify for defendant. Morales testified
that defendant was with the “Onterio gang†and his tattoos signified his
membership. During the evening of May
22, 2010, defendant was at Morales’s house located next door to defendant’s
mother’s house. Defendant drank three or
four beers. He could stand up, but his
eyes were red and he was speaking slowly.
He received a call sometime after dark, told Morales someone was
“fucking with his little brother,†and left Morales’s house.
C.
Officer Gutierrez had known Hilario since
Hilario was in elementary school.
Hilario had begun to hang out with gang members in the neighborhood, and
defendant and Officer Gutierrez had agreed to try to keep Hilario out of the
gang. Officer Gutierrez opined Hilario
was an associate of the gang based on his actions in the neighborhood and his
attendance at a gang-related funeral.
III.
DISCUSSION
A.
Kill Element of the Attempted Murder Convictions, the Premeditation Findings,
and the Gang Enhancements
Defendant was convicted of the
attempted murders of Marcos and Manuel in counts 1 and 2, and the jury found he
acted with premeditation and committed the offenses for the benefit of his
gang. Defendant challenges the sufficiency
of the evidence he (1) intended to kill Marcos and Manuel, (2) acted with
premeditation, and (3) committed the offenses for the benefit of his gang. We reject these challenges to the sufficiency
of the evidence.
1. Standard of Review
We
apply a settled standard of review in considering a challenge to the
sufficiency of the evidence to support a criminal conviction. (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
We review the entire record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have found the defendant guilty of the crime beyond a reasonable
doubt. (People v. Livingston (2012) 53 Cal.4th 1145, 1170.) We must accept all logical inferences the
jury might have reasonably drawn from the evidence. (People
v. Wilson (2008) 44 Cal.4th 758, 806.)
The same standard of review applies in determining the sufficiency of
the evidence to support a sentencing enhancement. (People
v. Gonzales (2011) 51 Cal.4th 894, 941; People
v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) If the circumstances reasonably justify the
trier of fact’s verdict or findings, our opinion that the circumstances might
also support a contrary finding does not warrant reversal. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
As will appear, we reject defendant’s attempts to reargue the
persuasiveness of and inferences to be drawn from the evidence, and conclude
the jury could have reasonably inferred that defendant acted with the intent to
kill, with premeditation and deliberation, and for the benefit of his gang when
he stabbed Marcos and Manuel—even though the evidence also supports contrary
conclusions.
2. Intent to Kill
“‘Attempted murder requires the specific
intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’†(
136.)
Defendant argues the evidence is insufficient to show he intended to
kill Marcos or Manuel when he stabbed them.
He argues the evidence showed he acted rashly in stabbing the victims
and did so without intending to kill them.
He maintains there is “no evidence†he went to Carla’s house with the
intention of killing anyone and no evidence he picked a fight with either
victim. He argues that “it was virtually
undisputed that both [victims] were stabbed only when they intervened in the
fight†between himself and Julian. He
also questions the credibility of Carla and Manuel, including their varying
accounts of when and whether they saw him pull out a knife.
These attempts to reargue the evidence or
the reasonable inferences it supports are unavailing. Viewed in the light most favorable to the
attempted murder convictions, the evidence supports a reasonable inference that
defendant acted with an intent to kill when he stabbed Marcos and Manuel in
their abdomens—particularly in view of the fact defendant stabbed the victims
more than once in their abdomens, a vital area of their bodies, and the broader
circumstances in which the stabbings occurred.
(People v. Ramos (2011) 193
Cal.App.4th 43, 48 [“Evidence of intent to kill is usually inferred from
defendant’s acts and the circumstances of the crime.â€].)
Substantial evidence of intent to kill
can be inferred from the fact defendant used a deadly weapon, such as a knife,
and targeted a vital area of the victim’s body, such as the abdomen. (People
v. Moore (2002) 96 Cal.App.4th 1105, 1114 [sufficient evidence of intent to
kill shown from the defendant’s act of stabbing the victim in the abdomen, an
“extremely vulnerable area of the body,†with all his might and effort];
561 [“defendant could have had no other intent than to kill†when he plunged
the knife deeply into a “vital area of the body of an apparently unsuspecting
and defenseless victimâ€].) It is
unnecessary for the victim to have suffered serious or life-threatening
injuries for the defendant to have intended to kill the victim. (People
v. Avila (2009) 46 Cal.4th 680, 701-702.)
As the prosecutor argued, the evidence
showed defendant originally intended to kill Julian when he was sitting on
Julian and reached for a knife in his back pocket. Then, after Marcos pulled defendant off
Julian, defendant’s intent to kill Marcos could be inferred from his initial
intent to kill Julian and by the fact he stabbed Marcos twice in the abdomen—a vital area of the body—using a knife with a
six-inch blade, and pulled Marcos toward him when he stabbed him to stab him
more forcefully. Then, when Manuel
attempted to assist Marcos, defendant stabbed Manuel twice in the abdomen, using the same six-inch blade knife.
The fact defendant stabbed each victim
their bodies supports a reasonable inference he intended to kill both of them,
even if, as defendant argues, the evidence also supports a reasonable inference
he acted rashly, in a heat of passion, and without an intent to kill when he
stabbed them.
The broader circumstances of the
stabbings further support a reasonable inference that defendant intended to
kill the victims. Defendant was a Black
Angels gang member and the gang’s primary activities included assaults and
attempted murders. Defendant was
informed that someone at the party at Carla’s house had “picked on†Hilario—an
act of disrespect that could not be tolerated in the gang’s culture or
territory. Defendant brought numerous
gang members with him when he went to Carla’s house and sought out Julian, the
one who had picked on Hilario. The
evidence supports a reasonable inference that defendant, in order to gain more
respect and status within his gang, intended to kill Marcos and Manuel when
they prevented him from stabbing and killing Julian.
3. Premeditation
The punishment for attempted
murder is increased when the murder attempted
was “willful, deliberate, and premeditated.†(§ 664, subd. (a); People v. Bright
(1996) 12 Cal.4th 652, 656-657.) An attempted
murder is “premeditated and deliberate if it
occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.†(People
v. Stitely (2005) 35 Cal.4th 514, 543.)
“‘“‘Deliberation’ refers to careful weighing of considerations in
forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.]†[Citation.]
“‘Premeditation and deliberation can occur in a brief
interval. “The test is not time, but
reflection. ‘Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at
quickly.’â€â€™ [Citation.]†[Citations.]’
[Citation.]†(People v.
Mendoza (2011) 52 Cal.4th 1056, 1069.)
In People v. Anderson (1968)
70 Cal.2d 15 (Anderson), the California Supreme Court identified
three types or categories of evidence pertinent to the determination of
premeditation and deliberation: (1)
planning activity; (2) motive; and (3) manner of killing. (People v. Perez (1992) 2 Cal.4th
1117, 1125.) The Anderson
court observed that courts typically sustain premeditation and deliberation
findings “‘when there is evidence of all three types and otherwise requires at
least extremely strong evidence of (1) or evidence of (2) in conjunction with
either (1) or (3).’†(People v.
Perez, supra, at p. 1125, quoting Anderson, supra, at p. 27.)
In other words, courts have
generally found sufficient evidence of premeditation and deliberation when
“‘(1) there is evidence of planning, motive, and a method of killing that tends
to establish a preconceived design; (2) extremely strong evidence of planning;
or (3) evidence of motive in conjunction with either planning or a method of
killing that indicates a preconceived design to kill.’†(People v. Tafoya (2007) 42 Cal.4th
147, 172.) Although these categories of evidence are not the exclusive means of
establishing premeditation and deliberation (ibid.), and other types or combinations of evidence may also
support a premeditation finding (People v. Perez, supra, 2 Cal.4th at p.
1125; Anderson supra, 70 Cal.2d at pp. 26-27), a finding of
premeditation and deliberation will generally be upheld when all three Anderson
factors are present (People v. Stitely, supra, 35 Cal.4th at p. 543).
Substantial evidence of all
three Anderson factors—planning,
motive, and a method of killing tending to show a preconceived plan—is present
here. Defendant came to the party at
Carla’s house with numerous fellow members of his Blank Angels gang, looking
for the person who had disrespected Hilario.
Defendant knocked Julian to the ground and almost immediately attempted
to pull a knife from his back pocket and stab Julian. This was evidence of planning—a preconceived
plan and design to kill the person who had disrespected Hilario. Then, when Marcos and Manuel intervened and
prevented him from stabbing Julian, the jury could have reasonably inferred
that defendant reconsidered his options and preconceived a plan to kill them
instead of Julian. He had a motive to
kill the person or persons who were responsible for disrespecting Hilario because
it would gain him status and respect in his gang. Finally, the manner of the stabbings—more
than once in a vital area of each victim’s body, the abdomen—was a method
tending to establish a preconceived design to kill.
Defendant argues the
evidence supports a contrary inference that he acted rashly and in the heat of
the moment when he stabbed the victims, and not with premeditation or
deliberation. But defense counsel made
this argument, the jury rejected it, and substantial evidence supports the jury’s
contrary finding that the attempted murders were premeditated and
deliberate.
4. Gang Enhancements
Finally,
defendant claims insufficient evidence supports the jury’s findings that he
committed the premeditated attempted murders and assaults in counts 1 through 4
for the benefit of his gang.
(§ 186.22, subd. (b).)
Rather, he argues the evidence showed only that the crimes were “a
personal response†by him to “a perceived or actual wrong done to his little
brother.†(Capitalization omitted.) This claim, too, lacks merit.
Section 186.22,
subdivision (b)(1) provides for an enhanced prison sentence for any person who
is convicted of a felony (1) “committed for the benefit of, at the direction
of, or in association with any criminal street gang,†and (2) “with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .†(
pp. 59-66.) Here, the evidence shows
defendant committed the attempted murders and assaults in association with and
for the benefit of his gang and with
the specific intent to further the gang’s criminal conduct.
Defendant was
a self-admitted member of the Black Angels gang. He went to Carla’s house, armed with a
six-inch blade knife and with numerous members of his gang, apparently intending
to avenge the disrespect to Hilario by assaulting and killing the person or
persons responsible. The stabbings
occurred in the heart of the gang’s territory—a place where disrespect to the
gang was not tolerated according to the prosecution’s gang expert, Officer
Gutierrez. And after he stabbed the
victims, defendant yelled “Black Angels†and pointed to his gang tattoos,
crediting both himself and his gang for the stabbings.
Officer
Gutierrez explained that if someone disrespects a gang member’s brother, the
gang member will not avenge the disrespect as an individual, but will “take
care of business†or avenge the disrespect as a gang member and with the
backing of his entire gang. Also
according to Officer Gutierrez, the stabbings benefited the gang because they
caused a family to move out of the neighborhood due to fear, rendering the
family unable to report other gang crimes, and also because the crimes sent a
message to others in the neighborhood not to “mess with†the Black Angels. Thus the jury could have reasonably inferred
that defendant did not commit the crimes for personal reasons, or solely for
personal reasons, but to benefit his gang and with the specific intent of
promoting its criminal activities.
B. The
Court Properly Refused to Bifurcate the Gang Allegations
Defendant
claims the court’s failure to bifurcate the gang enhancements from the charged
offenses resulted in the admission of a “saturation†of irrelevant and unduly
prejudicial gang evidence on the charged offenses that should have been
excluded under Evidence Code section 352 and that deprived him of a fair trial
on the charged offenses. We reject these
claims.
1. Relevant Background
Defendant
moved in limine to bifurcate the gang allegations from the attempted murder and
assault charges and try the enhancements only if and after he was convicted of
the charged offenses. Defense counsel
argued that bifurcation should have been granted because there was no evidence
the charged crimes were gang related because there was no evidence defendant’s
younger brother Hilario was an associate of the gang.
committed the crimes for purely personal reasons involving his brother, and not
to benefit his gang.
The prosecutor
argued bifurcation was unwarranted because the evidence showed defendant had a
gang-related motive to commit the crimes, regardless of whether Hilario was a
gang associate. In addition, the
prosecutor argued that gang evidence would shed light on why the stabbings occurred,
whereas bifurcation would “hid[e] things†from the jury and give them a false
sense of why the stabbings occurred.
The court
denied the bifurcation motion based on evidence that defendant had a
gang-related motive for the crimes as indicated by his gang affiliation, his
gang tattoos, and his yelling “Black Angels†after the stabbings. The court further ruled that evidence of
defendant’s gang-related motive for committing the crimes was relevant and
cross-admissible to prove the gang allegations.
The court later allowed defendant to “federalize†his bifurcation
motion, ostensibly on the ground the admission of gang evidence on the charged
offenses would deprive him of his due process right to a fair trial on the
charges.
During trial and before Officer
Gutierrez testified as a gang expert, defense counsel said he had reviewed the
officer’s proposed PowerPoint slideshow presentation and renewed his
slides, including those containing photographs of gang members other than those
who committed the predicate offenses, among others, were unduly prejudicial and
should be excluded under Evidence Code section 352. The court denied the renewed bifurcation
motion and ruled it would not exclude the PowerPoint presentation in its
entirety on the ground most of it was probative of defendant’s motive for the
crimes, along with the gang allegations and the officer’s credibility and
expertise. At the court’s urging, the
parties ultimately agreed to examine each slide of the PowerPoint presentation
to determine which individual slides might be unduly prejudicial.
After much
discussion, the court excluded some slides as either unduly prejudicial or
cumulative (Evid. Code, § 352), including a photograph of a child being
brought into the gang, a young girl showing a gang sign, photographs of
firearms related to the funding of the gang, and Black Angels members with ties
to the Mexican Mafia. Among other gang-related
evidence, the court allowed the prosecutor to present slides representing the
history of the Black Angels, photographs of gang members showing Black Angels
tattoos and hand signs, and photographs of Black Angels graffiti, emblems, and
artwork.
2. Analysis
Courts have
long recognized the potentially prejudicial effect of gang evidence, and for
this reason its admission has been “condemned†if it is only
offenses. (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Thus, in cases not involving a gang enhancement, evidence of gang membership or
gang evidence should be excluded if its probative value is minimal. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez); People v.
Cardenas (1982) 31 Cal.3d 897, 904-905.)
But “evidence
of gang membership is often relevant to, and admissible regarding, the charged
offense.†(Hernandez, supra, 33 Cal.4th. at p. 1049.) For example, “[g]ang evidence is relevant and
admissible [to a charged offense] when the very reason for the underlying
crime, that is the motive, is gang related.â€
(People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167; Evid. Code, § 1101, subd. (b).) And when gang evidence is relevant to prove
the defendant’s motive or intent in committing charged offenses, or some other
fact concerning the charged offenses, other than criminal propensity, it is
admissible as long as its probative value outweighs its prejudicial
effect. (Hernandez, supra, at p. 1049; People
v. Albarran, supra, 172 Cal.App.4th
at pp. 223-224.)
Defendant does
not argue on this appeal, as he did in the trial court, that Officer
Gutierrez’s expert gang testimony was not relevant to show he had a
gang-related motive to commit the charged crimes. Nor does he argue that any additional slides
contained in the officer’s PowerPoint presentation should have been excluded as
unduly prejudicial on either the charges or the gang allegations. Instead, he argues the court’s refusal to
bifurcate the gang allegations resulted in “a saturation of gang evidence†on
the substantive charges that deprived him of his due process right to a fair
trial on the charges. We find no abuse
of discretion or due process violation in the court’s refusal to bifurcate the
gang allegations.
To be sure,
bifurcation may be warranted when the evidence supporting a gang allegation is
unduly prejudicial on the issue of the defendant’s guilt of the underlying
charge. (Hernandez, supra, 33 Cal.4th at p. 1049.) For instance, “[t]he predicate offenses
offered to establish a ‘pattern of criminal gang activity’ (§ 186.22,
subd. (e)) need not be related to the crime, or even to the defendant, and
evidence of such offenses may be unduly prejudicial, thus warranting
bifurcation. Moreover, some of the other
gang evidence, even as it relates to the defendant, may be so extraordinarily
prejudicial, and of so little relevance to guilt, that it threatens to sway the
jury to convict regardless of the defendant’s actual guilt.†(Id.
at p. 1049.)
The court
nonetheless has broad discretion to deny bifurcation—even if some of the
evidence offered to prove a gang enhancement would be inadmissible at a trial
solely on the substantive charges—because, for example, some of the gang
enhancement evidence would be excluded as unduly prejudicial on the substantive
charges when no gang enhancements are
alleged. (Hernandez, supra, 33 Cal.4th at p. 1050.) The court’s discretion to deny bifurcation is
broad because “counterveiling considerations†often weigh in favor of a single,
unitary trial. (Ibid.) One key
counterveiling consideration arises when gang evidence, though it would be
unduly prejudicial in a trial solely on the substantive charges, is not so
inflammatory in a trial with gang allegations that it is likely to sway the
jury to convict the defendant of the charges regardless of his guilt. (Id.
at pp. 1050-1051.) In sum, the defendant
has the burden “‘to clearly establish there is a substantial danger of
prejudice requiring that the charges [and gang allegations] be separately
tried.’ [Citation.]†(Id.
at p. 1051.)
Here,
defendant did not show there was a substantial danger of prejudice on the
substantive charges absent bifurcation, and the court accordingly acted within
its discretion in refusing to bifurcate the gang allegations. First, the nature of the charges—two counts
of premeditated attempted murder and two counts of assault with a deadly
weapon—was very serious and no less so than any of the gang evidence. As the court pointed out in denying the
initial bifurcation motion: “The
underlying charges have their own notoriety such that the gang enhancement[s]
won’t prejudice the defendant . . . making him sound worse than the
charges do.â€
Second, much
of Officer Gutierrez’s expert gang testimony was relevant and unduly
prejudicial on the charged offenses—even if no gang enhancements had been
alleged—because it showed defendant had a gang-related motive for committing
what otherwise would have appeared to be senseless crimes for which defendant
had no motive, or an insufficient motive.
(Evid. Code, § 1101, subd. (b).)
The officer’s explanation of gang culture and its concept of respect
explained that defendant was motivated to commit the crimes to benefit his gang
and further its criminal activities, and not for personal reasons or for no
reason. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050 [“To the extent the
evidence supporting the gang enhancement would be admissible at trial of guilt,
any inference of prejudice would be dispelledâ€].)
Third, and
most importantly, none of the officer’s testimony was likely to persuade the
jury to convict defendant of the charged crimes regardless of his guilt of
those crimes. To be sure, the officer
testified in detail about the history of Ontario gangs and that, like all southern
California Hispanic gangs, the SSO and Black Angels were under the jurisdiction
of the Mexican Mafia. The officer’s
slideshow presentation also included photographs of what defendant calls
“scary-looking†Black Angels, some of whom were members or leaders of the
Mexican Mafia. The officer also
testified that defendant admitted being a gang member multiple times during
jail classification interviews, “thus notifying the jury [he] had been in jail
on several occasions.â€
But none of
the officer’s testimony indicated defendant had ties to the Mexican Mafia, was
involved in committing the predicate offenses, or committed any offenses for
which he had escaped punishment. (
1051.) In addition, defendant injected
his gang status into the charged crimes by yelling “Black Angels†and pointing
to his gang tattoos before he and his fellow gang members left the scene of the
stabbings. Thus here, as in
solely to prove the gang enhancement was not so minimally probative on the
charged offense[s], and so inflammatory in comparison, that it threatened to
sway the jury to convict regardless of defendant[’s] actual guilt. Accordingly, [defendant] did not meet [his]
burden ‘to clearly establish that there is a substantial danger of prejudice
requiring that the charges be separately tried.’ [Citation.]â€
(Ibid.)
Defendant’s due process claim fails for
substantially the same reasons. “To
prove a deprivation of federal due
process rights, [defendant] must satisfy a high constitutional standard to
show that the erroneous admission of evidence resulted in an unfair trial.
‘Only if there are no permissible inferences the jury may draw from the
evidence can its admission violate due process.
Even then, the evidence must “be of such quality as necessarily prevents
a fair trial.†[Citations.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.’ [Citation.]†(People
v. Albarran, supra, 149 Cal.App.4th at p. 229.)
All of the gang evidence
had a legitimate purpose in this trial—either to prove the gang allegations or
to show defendant had a gang-related motive in committing the charged
offenses. As noted, none of the gang
evidence indicated defendant had ties to the
Mexican Mafia, was involved in committing the predicate offenses, or committed
any offenses for which he had escaped punishment.
In sum, there
is no reason to believe the jury used any of the gang evidence for an
impermissible purpose, such as to punish defendant for crimes he did not
commit. (Cf. People v. Albarran, supra, 149 Cal.App.4th at pp. 230-231, fn.
omitted [gang evidence rendered trial fundamentally unfair because it was “extremely
and uniquely inflammatory†and the prosecution did not show it had any bearing
on the defendant’s intent and motive in committing the charged crimes].) Thus here, none of the gang evidence rendered
defendant’s trial fundamentally unfair.
C. The
Court Properly Denied the New Trial Motion Based on Ineffective Assistance
Lastly,
defendant claims the trial court prejudicially erred in denying his motion for
a new trial based on the ineffective assistance of his trial counsel. We disagree.
1. Relevant Background
Before trial, defendant’s trial counsel, Kirk Tarman, moved to exclude defendant’s criminal
history in the event defendant testified.
The court ruled defendant could be impeached with a 1999 conviction for
grand theft (§ 487) and a 2000 conviction for corporal injury to a spouse
or cohabitant (§ 273.5). At the time, neither party realized defendant
had an aggravated assault conviction.
(§ 245, subd. (a).)
Before sentencing, Mr. Tarman filed a
motion for a new trial based on his own ineffective assistance. In a supporting declaration, he averred that
when trial began he and defendant discussed whether defendant would testify in
his own defense and “there was an ongoing dialog regarding that issue.†After trial began the prosecutor told Mr.
Tarman he had “uncovered a prior conviction†for assault with a deadly weapon,
and Mr. Tarman told defendant there was “very little chance of winning the
case†if the prosecutor “were able to get that into evidence via impeachment.â€
Mr. Tarman also stated that at some later
point during the trial, the prosecutor told him he was incorrect and “there was
no weapon allegation,†meaning the conviction was for assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)), not for assault
with a deadly weapon (§ 245, subd. (a)(2)). Mr. Tarman said he thought he “updatedâ€
defendant with this information, but he did not have “a clear recollection when
and where.â€
Defendant also submitted a declaration in
support of the motion, averring he had decided not to testify because the jury
would have heard he had a conviction for “using a weapon in another case.â€
The court appointed conflict counsel
Geoff Newman to represent defendant on the motion for a new trial. Mr. Newman filed his own motion for a new
trial, claiming Mr. Tarman rendered prejudicial ineffective assistance in
misinforming defendant about the nature of the prior assault conviction and in
failing to investigate his criminal background and ascertain the nature of the
prior conviction.
Without a supporting declaration, Mr.
Newman claimed that before Mr. Tarman mistakenly told defendant he had a prior
conviction for assault with a deadly weapon, defendant had decided to testify
in his own behalf, “hoping to explain to the jury that his actions were in
self-defense. However, [Mr. Tarman] told
[defendant] that the prior weapon offense [was] reason enough not to take the
stand, worrying that the weapon in this case would expose [defendant] to extra
scrutiny by the jury due to the prior weapon use.†Mr. Newman also claimed, without a supporting
declaration, that defendant did not learn until after trial that the prior
conviction did not involve the use of a weapon, and had he known that during
trial he would have testified.
The prosecutor filed an opposition to the
motions, claiming that on May 9, 2011, the day trial commenced, he discovered
during the evening, from defendant’s CLETS history, that defendant had a prior
conviction “for violating Penal Code section 245[, subdivision] (a)(1)†but
“[i]t was unclear from the printout whether that conviction was for an assault
with a deadly weapon, or an assault with force likely to cause great bodily
injury; in other words, whether it was a strike or a non-strike offense.†The prosecutor immediately telephoned Mr.
Tarman, told him of the conviction, told him that if it was a strike the People
would allege it in an amended information, and also told him that regardless of
whether it was a strike the People would seek to impeach defendant with it
should he testify, because it involved moral turpitude. The next day, the People ordered defendant’s
“prior packet†on a rush basis.
The People received the prior packet on
May 16, and it showed the conviction was not a strike, meaning it was for
assault by means of force likely to produce great bodily injury and not assault
with a deadly weapon. The court was not
in session on May 16, and on May 17, the prosecutor notified Mr. Tarman that
the conviction was not a strike and would not be alleged, but reiterated that
the offense involved moral turpitude.
The prosecution had not rested when the conversation took place. The defense called two witnesses on May 19, but
defendant did not testify.
Regarding defendant’s ineffective
assistance claim, the prosecutor argued there was no credible evidence that Mr.
Tarman did not advise defendant of the true nature of the conviction and, in
fact, Mr. Tarman said he thought he had so informed defendant; he was just
unsure when he did so. The prosecutor
also argued it was questionable whether defendant would have testified had he
known the prior conviction did not involve the use of a weapon, because it
involved moral turpitude and still could have been used to impeach him.
defendant would have wanted the jury to know the prior conviction involved
great bodily injury, because he was alleged to have inflicted great bodily
injury in the present case.
At the hearing on the motions, the
parties first established the factual basis for the motions. Mr. Newman said he based the facts stated in
his motion on his investigator’s personal interview of Mr. Tarman, but agreed
those facts did not differ significantly from the facts stated in Mr. Tarman’s
declaration, and he did not object to the court considering Mr. Tarman’s
declaration. Neither side asked the
court to consider defendant’s declaration filed with Mr. Tarman’s original
motion, but the court considered it.
Mr. Newman argued Mr. Tarman rendered
prejudicially ineffective assistance by failing to timely investigate the
assault conviction, ascertain whether it involved the use of a weapon, and so
advise defendant before defendant would have testified. In response, the prosecutor reiterated that
he told Mr. Tarman of the nature of the conviction before he rested his case;
argued it was hard to believe Mr. Tarman did not tell defendant about the
nature of the conviction before defendant would have testified; and argued it
appeared defendant made a tactical decision not to testify because he would
have been impeached with “the 1997†section 245, subdivision (a)(1) conviction,
which involved great bodily injury.
The court denied the motion. The court agreed it would probably have been
a tactical error or unwise had defendant testified, because he would have been
impeached with several prior offenses involving moral turpitude, in addition to
his extensive gang involvement. The
court also pointed out that defendant got his self-defense claim into evidence
through Hilario’s testimony, without risking his own impeachment. The court ruled Mr. Tarman did not render
ineffective assistance in recommending against defendant testifying, and even
if he did, there was no reasonable probability defendant would have realized a
more favorable result had he testified.
2. Analysis
“‘We review a trial court’s ruling
on a motion for a new trial under a
deferential abuse-of-discretion standard.’â€
(People v. Thompson (2010) 49
Cal.4th 79, 140.) Though not listed in
section 181, a motion for a new trial may be based upon ineffective assistance
of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-584.)
To establish a
claim of ineffective assistance of counsel, the defendant must show counsel’s
representation fell “below an objective standard of reasonableness†under
prevailing professional norms and there is a reasonable probability that but
for counsel’s error the defendant would have realized a more favorable result. (Strickland
v. Washington (1984) 466 U.S. 668, 693; People
v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
The bottom
line is defendant did not show he was prejudiced by anything Mr. Tarman did or
did not do regarding his 1997 assault conviction or in advising him not to
testify. There is no reasonable
probability defendant would have realized a more favorable result had he
testified.
Had defendant
testified, the prosecutor certainly would have impeached him with his 1997
conviction for assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(1)), along with his extensive history of gang
involvement, in addition to his 1999 grand theft and 2000 corporal injury
convictions. His defense was that he
acted in self-defense, whether reasonably or unreasonably, or in the heat of
passion, as indicated by Hilario’s testimony for the defense.
effectively got his defense theories to the jury through Hilario’s testimony,
without risking his own impeachment. In
view of the entire record, it is not reasonably likely defendant’s testimony
would have materially aided his defense theories.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P.
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The sentence includes two consecutive
15-year-to-life terms for the premeditated attempted murder convictions
(§§ 664, 187, subd. (a), 186.22, subd. (b)(1)(C)), consecutive three-year
terms for the great bodily injury enhancements on those convictions
(§ 12022.7, subd. (a)), plus four years for four prison priors the court
found true (§ 667.5, subd. (b)).
Additional terms were imposed but stayed on the assault convictions
(§ 245, subd. (a)(1)) and on the great bodily injury and gang enhancements
on those convictions.
