P. v.
Filed 4/25/13 P. v. Valdez CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MARTIN LEYVA VALDEZ,
Defendant and Appellant.
E053309
(Super.Ct.No. RIF127749)
OPINION
APPEAL from the Superior
Court of
County. Paul E.
Zellerbach and Helios (Joe) Hernandez, Judges.
Patricia Ihara, 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,
Senior Assistant Attorney General, and Peter Quon, Jr., and Randall D. Einhorn,
Deputy Attorneys General, for Plaintiff and Respondent.
On Christmas Day 2005,
defendant Martin Leyva Valdez fired four slug rounds from a shotgun through the
front door of a house. He killed an
11-year-old boy. He missed the boy’s
parents and brother, who watched the boy die.
Defendant was a member of the Casa Blanca
gang. The night before — on Christmas
Eve — a member of the Hillside gang had shot and injured
several members of Casa Blanca.
Defendant evidently intended to retaliate by firing into the house of
the Hillside shooter.
By mistake, however, he fired into a very similar house just three doors
away down the street.
While making his getaway, defendant used the
shotgun to menace a potential witness.
There was also evidence that defendant forcibly stole a carton of beer
from a stranger.
Defendant was charged with:
Count 1:
Murder (Pen. Code, § 187, subd. (a)), with a gang special
circumstance (Pen. Code, § 190.2, subd. (a)(22)) and with gang (Pen. Code,
§ 186.22, subd. (b)) and firearm (Pen. Code, § 12022.53, subd. (d))
enhancements.
Counts 2, 3, and 4: Attempted murder (Pen. Code, §§ 187,
subd. (a), 664), with gang and firearm enhancements.
Count 5:
Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with a
gang enhancement.
Count 6:
Robbery. (Pen. Code, § 211.)
In the first guilt trial, the jury was unable to
reach a verdict on counts 1-4 (murder and attempted murder). However, it found defendant guilty on counts
5-6 (assault with a firearm and robbery), and it found the gang enhancement on
count 5 true.
In the second guilt trial, the jury found
defendant guilty on counts 1-4; it found that the murder was first degree, and
that the attempted murders were willful, deliberate, and premeditated. It found all related special circumstances
and enhancements true.
In the penalty phase, the jury returned a verdict
of life without parole.
Defendant was sentenced to life without parole,
plus 70 years to life, plus 9 years, along with the usual fines and fees.
Defendant now contends:
1. There
was insufficient evidence of intent to kill to support the murder and attempted
murder convictions.
2. There
was insufficient evidence to support the gang enhancement on count 5 (assault
with a firearm).
3. The
trial court violated Miranda
interview, defendant claimed a gang.
4. The
prosecutor violated due process by taking
conflicting positions and presenting contradictory evidence concerning the
booking interview.
5. In the
first trial, the trial court erred by admitting photos found on MySpace,
because they were not properly authenticated.
6. In the
second trial, defense counsel
rendered ineffective assistance by failing to object to the MySpace photos.
7. Defense
counsel rendered ineffective assistance by failing to object to evidence of
certain crimes committed by and against other members of Casa Blanca.
8. Defense
counsel rendered ineffective assistance by failing to request CALCRIM
No. 375, regarding evidence of uncharged crimes, and CALCRIM No. 1403,
regarding the limited purpose of gang evidence.
9. The
abstract of judgment erroneously reflects a parole revocation restitution fine.
Aside from the error in the abstract of judgment
— which the People concede — we find no error.
Hence, we will affirm the judgment, but we will direct the trial court
clerk to correct the abstract.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
1. Gang evidence.
Casa Blanca is a gang that claims the Casa Blanca
neighborhood of Riverside,
including Villegas Park. It is also known as “Casa Blanca Rifa†or
“Riva.†Evans Street and Fern Street are
cliques within Casa Blanca; even though they are part of the same gang, there
is a feud between them.
The primary activities of Casa Blanca are violent
assaults, including murders and attempted murders. A pattern of gang activity was shown by the following
predicate offenses:
1. In
April 2001, Carlos Deharo, a member of Evans Street, shot a member of Fern
Street. He was convicted of assault with
a deadly weapon.
2. In
March 2002, Abacuc Guevera, a member of Fern Street, shot and killed two people,
including a member of Evans Street. He
was convicted of murder.
3. In
August 2003, Michael Robles, a member of Evans Street, fired shots at people
leaving a party. He was convicted on
multiple counts of attempted murder.
In April 2002, a police officer encountered
defendant in Villegas Park. He admitted
to her that he belonged to Casa Blanca.
Around December 2002, defendant got Casa Blanca
tattoos on his arms.
In June 2003, defendant told his probation
officer that he “claimed†Casa Blanca.
He added that he did not claim any particular clique because he had
family members on both sides.
Starting sometime in 2004, defendant was out of
the area — first in Butte County, and then in South Dakota — training to become
a firefighter. In August 2005, he returned
to Riverside.
In December 2005, when defendant was booked for
the current crimes, he was asked about his gang affiliation; he replied that he
was an affiliate of Casa Blanca.
A gang expert concluded that defendant was a
member of Casa Blanca.
2. Christmas Eve: the prior shooting in Hillside.
Casa Blanca was at war with another gang called
Hillside.
On December 24, 2005, there was party in the
backyard of a home in the Hillside neighborhood. The guests included Alejandro (or Alex)
Moreno, a member of Hillside. They also
included Michael Rangel, a member of Casa Blanca.
When Rangel arrived, Moreno asked him, “Where are
you from?†Rangel answered, “Casa
Blanca.†Moreno yelled, “Hillside.†They started fistfighting. Then Moreno pulled out a gun and started
shooting.
Gonzales, Gabriel Halcon, and Randy Lozano, were also hit. In the opinion of a gang expert, Gonzales,
Halcon, and Lozano were all members or associates of Casa Blanca. Moreno was eventually convicted on four
counts of attempted murder.
Defendant and Rangel were very close
friends. Defendant went to the hospital
and talked to Rangel’s family to find out how he was. On Christmas Day, in the wee hours, Rangel
was discharged.
3. Christmas day: the robbery at the market.
On December 25, 2005, around 4:40 p.m., one
Jorge (or George) Perez bought a carton of beer at a market in the Casa Blanca
neighborhood. Outside, in the parking
lot, a man punched him, took the beer, and drove off in a black car.
The owner of the store recognized the robber as a
regular customer. He wrote down the
license number of the black car.
Defendant owned a black Lincoln with tinted windows. The number the store owner wrote down was only
one number off from defendant’s license number.
In a photo lineup, the store owner identified defendant as the
robber. An employee of the store
likewise identified defendant.
4. Christmas night: the shooting at the Miranda house.
Moreno lived at 6276 Antioch Avenue. Meanwhile, the Miranda family — Oscar,
Jacqueline, 11-year old Max, and 10-year-old Joban — lived at 6330
Antioch. Both houses appeared similar,
from the outside, and they were separated by just two other houses.
A person approaching the Miranda house would have
seen, from left to right: the window of
the front bedroom; the two high windows of a bathroom; roughly in the middle of
the house, the front door; and then the window of the kitchen and dining
area. The garage, on the far right,
projected out from the rest of the house, blocking most of the dining area.
On December 25, 2005, around 8:00 p.m.,
someone armed with a 12-gauge shotgun fired four slug rounds through the closed
front door.
Inside the front door was a hallway that ran to
the rear of the house. When the shooting
started, Max was in the front bathroom, on the left; the rest of the family was
in the living room, on the right, behind the kitchen. Max ran toward his parents. As he was crossing the hallway, another shot
hit him in the chest. He died within
seconds.
Slug rounds will penetrate walls and keep
going. Two rounds were recovered from
the walls of the house. The other two
rounds exited through a rear window and could not be found. From top to bottom, the entrance holes in the
door were only about a foot and a half apart.
Meanwhile, at the house across the street, three
children were out in the garage; the garage door was open. They saw a black car stopped in the middle of
the street. It had tinted windows, and
its headlights were off. The children
heard shots. Then the car drove
away. They could see that, over at the
Miranda house, the bathroom and kitchen lights were on.
Defendant’s cell phone records showed that, at
7:58 p.m., he was near his own home.
At 8:07 p.m., he was near the Miranda home but headed back toward
his own home.
In the opinion of a gang expert, the shooting was
committed in retaliation for Moreno’s Christmas Eve shooting of Rangel and
other Casa Blanca members and thus for the benefit of Casa Blanca.
5. Christmas night: the postshooting assault.
Jesse (or Jess) Valenciano lived on Antioch. On December 25, 2005, as he and his wife were
in their pickup truck nearing their home, he heard gunshots. To turn left onto Antioch, he had to go around
a black Lincoln sedan with tinted windows that was stopped on Antioch, at the
stop sign. The driver of the black
Lincoln rolled down his window and said, “[W]here you from, homeboy?†Valenciano just smirked, because he “d[id]n’t
relate to anything like that.â€
The driver sat up, however, and Valenciano could
see the barrel of a shotgun that he was holding. Next, Valenciano heard the sound of the
shotgun being racked. Valenciano “hit the
gasâ€; looking back, he saw the black sedan turn and leave the scene. He went home and called 911.
In a photo lineup, Valenciano identified
defendant as the driver with the shotgun.
Later, he also identified defendant’s car. At trial, he once again identified defendant
as the driver.
6. Christmas night: the postshooting gathering.
On Christmas night, a number of Rangel’s friends
gathered at his house. One was Albert
Magallon, the godson of Rangel’s father.
According to Magallon, sometime around 9:00 or
9:30 p.m., defendant arrived.
Meanwhile, Magallon noticed a black car parked outside, which had not
been there earlier.
Defendant indicated that he had gone up to a door
or a house and committed a shooting. He
made a gesture of holding “a shotgun or some kind of rifle.†He spoke with “bravado . . . ,
like he was proud of what he had just done.â€
He appeared to be drunk.
name="_ftnref5" title="">[5] Magallon got the impression that defendant
was from the Casa Blanca gang.
name="_ftnref6" title="">
On December 29, 2005, gunshot residue was found
on the gearshift of defendant’s black Lincoln.
It could have been transferred there from the driver’s hand.
B. Defense Evidence.
1. Evidence introduced in
both trials.
At least until 2002 or 2003, defendant and Moreno
were friends. Thus, defendant had been
to Moreno’s house many times.
The defense called its own gang expert.
it was a merely a neighborhood in which there were several gangs, including
Evans Street and Fern Street. Moreover,
in his opinion, the shooting was not committed for the benefit of a gang.
make a gang lose respect.
2. Defendant’s testimony
in the first trial.
In the first trial, defendant took the
stand. He testified that, on Christmas
day, he was drinking; thus, there were gaps in his memory. He admitted taking the beer from the customer
at the market. He also admitted firing a
shotgun at what he thought was Moreno’s house.
He testified, however, that he only intended to scare Moreno.
Just the day before, an acquaintance had insisted
that defendant take the shotgun as “protection,†because defendant was going to
Moreno Valley. Defendant claimed he did
not know what type of ammunition was in it.
Defendant denied being a gang member. He testified that he got a “Casa Blancaâ€
tattoo to show pride in his neighborhood.
When he was booked, defendant testified, the
booking officer did not ask him if he was affiliated with a gang. Rather, the booking officer asked, “Do you
want me to put you . . . with the people from Hillside or the people
from Casa Blanca?†Because he was
accused of a shooting in Hillside, he asked to be put with the people from Casa
Blanca.
3. Additional evidence in
the first trial.
As of December 2005, Angelica Galceran was
defendant’s girlfriend. She testified
that she saw no indication that defendant was in a gang. However, she added that, as far as she knew,
he had no friends.
Leah Hernandez, another one of defendant’s
girlfriends and the mother of his child, similarly saw no indication that
defendant was a gang member. She agreed,
however, that if he was a gang member, he would not necessarily tell her,
because she was “against gang membership.â€
II
EVIDENCE OF INTENT TO KILL
Defendant contends that, at the second trial,
there was insufficient evidence of intent to kill to support his murder and
attempted murder convictions.
“In reviewing a criminal conviction challenged as
lacking evidentiary support, ‘“the court must review the whole record in the
light most favorable to the judgment below to determine whether it discloses
substantial evidence — that is, evidence which is reasonable, credible, and of
solid value — such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.â€
[Citation.]’ [Citation.]†(People
v. Streeter (2012) 54 Cal.4th 205, 241.)
“We ‘“‘presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’†[Citation.]’ [Citation.]â€
(People v. Clark (2011) 52
Cal.4th 856, 943.) “‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends.’ [Citation.]
Unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to support
a conviction. [Citation.]†(People
v. Elliott (2012) 53 Cal.4th 535, 585.)
“When the circumstances reasonably justify the
jury’s findings, a reviewing court’s opinion that the circumstances might also
be reasonably reconciled with contrary findings does not warrant reversal of
the judgment. [Citation.]†(People
v. Mendoza (2011) 52 Cal.4th 1056, 1069.)
Subject to exceptions that do not apply here,
first degree murder requires the intent to kill. (Pen. Code, § 189; People v. Whisenhunt (2008) 44 Cal.4th 174, 201.) Likewise, “‘“[t]he crime of attempted murder
requires a specific intent to kill . . . [.]†[Citation.]’
[Citation.]†(
643, 664.) And finally, the gang special
circumstance also required the intent to kill.
(Pen. Code, § 190.2, subd. (a)(22).)
An intent to kill exists when “the assailant
either desires the victim’s death, or knows to a substantial certainty that the
victim’s death will occur.
[Citation.]†(
178.) “[I]ntent to kill . . .
may in many cases be inferred from the defendant’s acts and the circumstances
of the crime. [Citation.]†(People
v. Smith (2005) 37 Cal.4th 733, 741.)
“[E]vidence of motive is often probative of intent to kill.†(Ibid.)
There was ample evidence that defendant intended
to kill at least one person. His obvious
motivation was to retaliate against Moreno for the Christmas Eve shooting. It was Christmas night, when people are
extremely likely to be at home. A van
was parked in the driveway, and lights in the house were on, confirming that
someone was inside. Defendant used slug
rounds, which can penetrate walls. An
expert testified that slug rounds create a “horrendous wound channel†and thus
increase the chances of death by blood loss, even when they hit an otherwise
nonvital area.
Defendant cites the prosecution gang expert’s
testimony that gang retaliation may involve either the same amount of force or
greater force; defendant then argues that, as no one had been killed in the
Christmas Eve shooting, “retaliation did not necessarily require that anyone be
killed in return.†This misapplies the
standard of review, which requires us to draw all reasonable inferences in
favor of the judgment. In the Christmas
Eve shooting, Moreno had fired multiple shots, hitting Rangel in the scrotum
and the leg. Defendant could reasonably
believe that Moreno was attempting to kill, but missed. If so, retaliation with equal force would
mean attempting to kill.
Alternatively, the jury could infer that
defendant actually chose to retaliate with greater force. Unlike Moreno, who engaged with his enemies
in a fistfight before shooting at them, defendant snuck up on his victims. Also, unlike Moreno, who used a handgun,
defendant used a shotgun, with powerful ammunition.
Defendant also argues that intent to kill requires
a “‘substantial certainty’ that a person would be killed
. . . .†Not so. As already mentioned (and as defendant
himself notes elsewhere in his brief), it requires that “the assailant
the victim’s death will occur.
[Citation.]†(
Moreno, he could have fired up toward the ceiling or down toward the floor; he
could also have fired into the garage, to his right. Instead, he fired straight through the door,
into the living area, roughly at level height.
Admittedly, there was no way he could be substantially certain that he
would kill someone. At the same time,
however, there was no way he could be substantially certain that he would
he did not merely want to scare someone; he hoped and desired to kill someone.
Defendant therefore also argues that, even if
there was sufficient evidence that he intended to kill one person, there was
insufficient evidence that he intended to kill four people. However, he chose to fire four separate
rounds. This was evidence that he hoped
and desired to kill four people.
As the People argue, this case resembles
554. There, two shooters in a car, one
armed with an assault rifle and one armed with a shotgun, fired at a duplex at
least 50 times, leaving one injured victim and one dead victim. An occupant who had been standing out in
front of the duplex was miraculously unhurt; two other occupants were likewise
uninjured. (Id. at p. 558.) The
shooters had mistaken the duplex for the one next door, where a rival gang
member had lived until recently. (
On appeal, the two defendants conceded that the
evidence showed that they intended to kill the uninjured occupant who was
outside, but they argued that it did not support attempted murder convictions
with respect to the two uninjured occupants who were inside. (People
v. Vang, supra, 87 Cal.App.4th at
p. 563.) The appellate court noted,
“Defendants’ argument might have more force if only a single shot had been
fired in the direction of [the occupant who was outside].†(Id.
at p. 564, fn. omitted.) It held,
however: “The jury drew a reasonable
inference, in light of the placement of the shots, the number of shots, and the
use of high-powered, wall-piercing weapons, that defendants harbored a specific
intent to kill every living being within the residences they shot up. [Citations.] . . . [D]efendants manifested a deliberate
intention to unlawfully take the lives of others when they fired high-powered,
wall-piercing, firearms at [an] inhabited dwelling[]. The fact they could not see all of their
victims did not somehow negate their express malice or intent to kill as to
those victims who were present and in harm’s way, but fortuitously were not
killed.†(Id. at pp. 563-564.)
Defendant tries to distinguish
shot — and all in roughly the same direction.
Nevertheless, as in Vang, it
is significant that he fired more than once, which supports an inference that
he desired to kill more than one person.
(See People v. McCloud (2012)
211 Cal.App.4th 788, 805-807 [defendant who fired 10 shots into group of over
400 people, killing two, could be convicted on two counts of murder and not
more than eight counts of attempted murder]; cf. People v. Perez (2010) 50 Cal.4th 222, 224-225 [defendant who fired
one shot into group of eight people, hitting one, could not be convicted of
more than one count of attempted murder].)
Also as in Vang, he fired
high-powered, wall-piercing ammunition at an inhabited dwelling.
Defendant claims that the evidence showed that he
was a “skilled†shooter who aimed “at a single spot on the front door
[citation], and placed his shots close together in the targeted area.†He argues that this “refuted any inference
that [he] intended to kill everyone in the house.†(Fn. omitted.) This assumes that he believed that the
occupants were spread out, rather than near each other. However, it was just as likely that they were
collected together somewhere (particularly on Christmas night); indeed, until
moments earlier, all four of them had in fact been together in the living
room. At oral argument, defendant’s
counsel conceded that, if four people had been hit, there would be sufficient
evidence of intent to kill four people.
However, as defendant could not know for certain whether he would or
would not hit anybody, his intent necessarily was the same no matter how many
people were hit. Defendant fired at the
door, in the middle of the house; as the People note, this is symbolically the
“heart†of the house.
More generally, this argument assumes that
defendant actually thought about where exactly the occupants might be. The jury, however, was not required to assume
this. Defendant repeatedly uses the example
of a shooter who fires into a glass house and who carefully avoids targeting
individuals he can see inside. At the
risk of stating the obvious, however, the house was not glass, and defendant could not
see inside. He did not necessarily even
have a mental picture of the inside.
While there was evidence that the exterior of Moreno’s house resembled
the exterior of the victims’ house, there was no evidence that the interiors of
the two houses were similar.
We therefore conclude that there was sufficient
evidence that defendant fired each shot with the intent to kill a person, and
we reject defendant’s arguments to the contrary.
III
EVIDENCE THAT THE ASSAULT WITH
A FIREARM WAS GANG RELATED
Defendant contends that, at the first trial,
there was insufficient evidence to support the gang enhancement on count 5
(assault with a firearm).
A. Additional Factual and
Procedural Background.
At the first trial, the prosecution gang expert
testified that the assault on Valenciano benefited Casa Blanca. He explained that “that type of conduct
instills fear into the community, and therefore, the community is apprehensive
to assist law enforcement or maybe even call the police . . . .â€
Valenciano was, in fact, intimidated. He hit the gas and “[s]ped off.†Instead of going home, however, he stopped in
the middle of the block; he explained that defendant’s car “was still stopped
at the stop sign, and I did not want him or anybody else to know where I turned
into . . . to go to my house.â€
He did not actually go home until he saw defendant’s car turn and leave.
He then called 911; however, he refused to give
his name, because he was still concerned about the safety of his family. The police were able to contact him only
because a witness who had seen the confrontation described his Silverado. Even then, he was reluctant to give his name
or to get involved, because he was concerned about his family’s safety. He changed his mind only after the police
told him “that an 11-year-old boy was shot.â€
B. Analysis.
A gang enhancement requires that the defendant
commit the underlying felony both (1) “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
. . . .†(Pen. Code,
§ 186.22, subd. (b)(1).) “[E]xpert
testimony is admissible on the issue of ‘“whether and how a crime was committed
to benefit or promote a gang.â€â€™
[Citations.]†(
Cal.App.4th 587, 621 [Fourth Dist., Div. Two].)
Here, defendant had just committed a shooting and
potential multiple murder. There was
massive evidence that the shooting was gang motivated, to retaliate for the
Christmas Eve shooting. Successfully
completing the retaliatory shooting — which meant not only committing it, but
also getting away with it — would benefit defendant’s gang. Moreover, it is almost tautological that
getting away with it would “promote, further, or assist in†the shooting
itself. (See People v. Galvez (2011) 195 Cal.App.4th 1253, 1261 [stealing cell
phone benefited gang where it prevented witness from reporting earlier crime to
police].)
Defendant notes that, when he said, “[W]here you
from, homeboy?,†Valenciano smirked; defendant argues that, at that point,
Valenciano was not intimidated. The
crime, however, was not asking Valenciano where he was from; it was assaulting
Valenciano with a shotgun. As noted, the
assault intimidated Valenciano very effectively.
Defendant also notes that he did not call out any
gang name, throw any gang signs, or display any gang clothing; thus, Valenciano
had no way of knowing what gang defendant was from. Indeed, as the assault took place in Hillside
territory, Valenciano might well have assumed that defendant was from
Hillside. Certainly this is not a case
in which defendant was trying to intimidate a random passerby to gain fear and
respect for a particular gang. However,
a jury could reasonably conclude that he was trying to intimidate a
witness. Moreover, by asking “[W]here
you from, homeboy?,†defendant did indicate that he was affiliated with
that the witness did not know what
gang. All that mattered was that
defendant had committed the shooting
for the benefit of his gang, and thus, witness intimidation by means of assault
also benefited his gang.
Finally, defendant argues that Valenciano
“likely†initiated the confrontation, by “mak[ing] a rude gesture
. . . or yell[ing] at him for taking up the left half of the
street.†This is sheer speculation. It is purportedly based on two facts: (1) Valenciano had to drive slowly to make
the tight turn around defendant’s car, and (2) a witness who saw the
confrontation reported hearing “angry, like yelling†voices coming from the two
vehicles. Valenciano’s account, however,
did not include any yelling. The jury
could reasonably conclude that he was not rude or angry.
Separately and alternatively, even assuming that
Valenciano did initiate the
confrontation, the jury could still
find that defendant assaulted him to benefit his gang. After committing the shooting, and while
still at the scene, the last thing defendant needed was to get involved in a
road-rage incident. The jury could
reasonably conclude that he assaulted Valenciano to cut the confrontation short
while simultaneously intimidating Valenciano, the better to make a successful
getaway.
Finally, defendant argues that “substantial
evidence must undergird the expert’s opinion . . . .†However, there was “an underlying evidentiary
foundation†for the expert’s testimony.
(People v. Ochoa (2009) 179
Cal.App.4th 650, 659.)
We therefore conclude that there was sufficient
evidence to support the gang enhancement to count 5.
IV
EVIDENCE THAT, IN A BOOKING
INTERVIEW,
DEFENDANT ADMITTED BEING A
GANG MEMBER
Defendant contends that the trial court erred in
both trials by overruling his Miranda
objection to evidence that he claimed a gang during a booking interview.
Defendant also contends that the prosecutor
violated due process by taking conflicting positions and presenting
contradictory evidence concerning the booking interview.
A. First Trial: Motion to Suppress.
1. Additional
factual and procedural background.
Before the first trial, defendant filed a written
motion on Miranda grounds to suppress
his statement, made in the booking interview, that he was a member of Casa
Blanca. The prosecution filed a written
opposition, arguing that the statement was within the booking question
exception to Miranda. Accordingly, the trial court held a hearing
pursuant to Evidence Code section 402.
The only witness at the hearing was Deputy Donald
Byrd. Deputy Byrd testified that he
interviewed arrestees at the Riverside County jail, including defendant, for
classification purposes. Pursuant to the
standard classification questionnaire, all arrestees were asked about their
gang affiliation. That question was
included so fellow gang members could be housed together and rival gang members
could be housed separately, for their own protection. Deputy Byrd admitted, however, that arresting
officers can get access to a classification questionnaire and can use it to
identify an arrestee as a gang member.
Deputy Byrd would have had a copy of defendant’s
“receiving sheet,†which would have indicated the “type of arrest.†Defendant’s receiving sheet indicated that he
was charged with murder and assault with a deadly weapon; however, it did not
mention any gang charges or allegations.
But Deputy Byrd also would have had — and would
have read — defendant’s “[p]robable [c]ause [s]tatement,†which is “a synopsis
of what happened or why [he] got arrested.â€
Defendant’s probable cause statement included an anonymous tip that the
shooting had been carried out to retaliate for a shooting of Casa Blanca gang
members.
After hearing argument, the trial court ruled
that defendant’s statement was admissible.
2. Analysis.
The controlling case is a recent case decided by
this court, People v. Gomez (2011)
192 Cal.App.4th 609. In
court denied the defendant’s motion to suppress his statement during his
booking interview, in which he admitted being an active member of a particular
gang and gave his moniker. (
was routinely asked about gang affiliation, for safety reasons. (Id.
at p. 625.) At trial, the officer
who had interviewed the defendant confirmed that he asked such questions
routinely, for housing and safety purposes, and that he did not investigate the
incident that led to any inmate’s arrest.
(Id. at pp. 626-627.)
We began by stating the applicable standard of
review: “When a defendant challenges the
admissibility of defendant’s postarrest statements on the ground they were
elicited in violation of Miranda, the
People have the burden of proving by a preponderance of the evidence that the
statements were not the product of a Miranda
violation. [Citations.] In reviewing a trial court’s ruling on a
motion to suppress based upon a violation of Miranda, ‘“we accept the trial court’s resolution of disputed facts
and inferences, and its evaluations of credibility, if supported by substantial
evidence. We independently determine
from the undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.†[Citation.]’
[Citation.]†(
We noted that the
States Supreme Court had recognized a “routine booking question exception
to Miranda†(People v. Gomez, supra,
192 Cal.App.4th at p. 630), which applies to responses “to questions
‘reasonably related to the police’s administrative concerns.’†(Id.
at p. 634, italics omitted; see also id.
at p. 629.) “The fact that the
information gathered from routine booking questions turns out to be
incriminating does not, by itself, affect the applicability of the
exception. [Citations.]†(Id.
at p. 629.) We cautioned,
however: “‘“Without obtaining a waiver
of the suspect’s Miranda rights, the
police may not ask questions, even during booking, that are designed to elicit
incriminatory admissions.â€â€™
[Citation.]†(
We added:
“In determining whether a question is within the booking question
exception, courts should carefully scrutinize the facts surrounding the
encounter to determine whether the questions are legitimate booking questions
or a pretext for eliciting incriminating information. [Citation.]
Courts have considered several factors, including the nature of the
questions, such as whether they seek merely identifying data necessary for
booking [citations]; the context of the interrogation, such as whether the
questions were asked during a noninvestigative clerical booking process and
pursuant to a standard booking form or questionnaire [citations]; the knowledge
and intent of the government agent asking the questions [citations]; the
relationship between the question asked and the crime the defendant was
suspected of committing [citations]; the administrative need for the information
sought [citations]; and any other indications that the questions were designed,
at least in part, to elicit incriminating evidence and merely asked under the
guise or pretext of seeking routine biographical information [citations].†(People
v. Gomez, supra, 192 Cal.App.4th
at pp. 630-631.)
In the case before us, we concluded: “Whether the administrative purpose is a mere
guise or pretext for questions actually designed to elicit incriminating
responses is a close question. Given the
prevalence of gang-related offenses, questions about an arrestee’s gang
affiliation are, by their nature, more likely to be incriminating than basic
identifying questions about one’s name, address, and age. . . .
“[However,] we cannot say on this record that the
gang-related questions asked of defendant are outside the booking question
exception. The questions appear to have
been asked in a legitimate booking context, by a booking officer uninvolved
with the arrest or investigation of the crimes, pursuant to a standard booking
form. . . . [T]he questions
were asked for legitimate, noninvestigatory purposes related to the
administration of the jail and concerns for the security of the inmates and
staff. Significantly, there is no
evidence that [the interviewing officer] had any knowledge of the crimes for
which defendant was arrested or was suspected of committing.†(People
v. Gomez, supra, 192 Cal.App.4th
at pp. 634-635.)
Here, the record before the trial court when it
ruled on the motion to suppress demonstrated that the question about
defendant’s gang affiliation was a legitimate booking question, rather than a
pretext for eliciting incriminating information. Just as in Gomez itself, the question was asked in a legitimate booking
context, pursuant to a standard booking form, and by a booking officer who was
not involved in the investigation of crimes.
It was reasonably related to administrative concerns about inmate
housing and safety. Admittedly, unlike
in Gomez, there was some question as
to whether the booking officer knew that defendant was suspected of committing
a gang-related crime. Defendant’s
receiving sheet indicated that there were no gang charges or allegations;
however, his probable cause statement included an anonymous tip that the crime
was gang related. In either case,
however, Deputy Byrd would have asked the same question of defendant, just as
he did of all arrestees. Thus, in the
first trial, the trial court properly admitted defendant’s statement.
Separately and alternatively, we also note that, even
if the trial court’s ruling on the motion in limine was erroneous, the error
was harmless. Ultimately, in the first
trial, defendant took the stand and denied being a gang member. Thus, as defendant concedes, even if his
otherwise voluntary statement was obtained in violation of Miranda, it became admissible for impeachment. (Oregon
v. Elstad (1985) 470 U.S. 298, 307-308 [105 S.Ct. 1285, 84 L.Ed.2d 222];
224-226 [91 S.Ct. 643, 28 L.Ed.2d 1].)
B. Conflicting Positions.
1. Additional
factual and procedural background.
a. Deputy
Byrd’s trial testimony.
At the first trial, Deputy Byrd testified (as he
had at the section 402 hearing) that the questions on the classification
questionnaire are asked for inmate safety, to make sure that inmates are housed
“with people that they’re compatible with.â€
He then testified that, at booking, defendant had admitted being
affiliated with Casa Blanca.
b. The
defense gang expert’s trial testimony.
The defense gang expert, Enrique Tira, agreed
that “jail classification is a housing safety issue.†“[T]he reason they do the jail classification
is so they can keep the . . . rival gangs[] apart from each other.â€
However, Tira added that, in his opinion, when
defendant said he was affiliated with Casa Blanca, he meant he was from the
within Casa Blanca, such as Fern Street and Evans Street. Thus, if defendant was a gang member, for
housing purposes, it would have made more sense to identify him by clique.
On cross-examination, the prosecutor tried to
shake Tira’s opinion on this point. She
asked if Tira would be surprised if the jail housed Fern Street members with
Evans Street members; Tira said he would.
The prosecutor also asked whether gang members in jail would put aside
their rivalries and unite by race; Tira said they would not.
c. Deputy
Dawley’s trial testimony.
In rebuttal, the prosecution called Deputy
Kenneth Dawley. Like Deputy Byrd, Deputy
Dawley worked in the classification unit of the Riverside County jail.
Deputy Dawley agreed that classification
questions are asked for purposes of housing.
Contradicting Tira, however, he also testified that there was no jail
policy against housing a member of Fern Street with a member of Evans
Street. In his opinion, gang members in
jail did put aside their rivalries
and unite by race.
Deputy Dawley then testified:
“Q.
. . . [Y]ou usually
tend to house the Hispanics together, is that right, regardless of their gang?
“A. Yes.[
“Q. Then
why do you have them fill out a questionnaire to house them and ask them about
their gang affiliation?
“A. The
sheet has a bunch of information on it; like their background, their
experience.
“Q. But
. . . if it doesn’t matter and you house them by their race, then why
ask them all the other questions?
“A. Their
experience matters.
“Q.
. . . Experience as far as having been in jail before, their
charges or what?
“A. Yes,
sir.
“Q. Then
why not just house them . . . based on that and not by race?
“A.
“Q. So
which is prioritized? Is it the race or
the experience? [¶]
. . . [¶]
“[A.]
Their experience.†(Italics
added.)
2. Analysis.
In defendant’s view, Deputy Dawley contradicted
not only the defense gang expert, Tira, but also the prosecution’s own witness,
Deputy Byrd: “Either [Deputy] Byrd or
[Deputy] Dawley gave false testimony.â€
Moreover, the prosecutor violated due process by introducing false
testimony and by taking inconsistent positions.
Basically, defendant argues that the prosecution
took the position that jail housing was
based on gang affiliation — and introduced Deputy Byrd’s testimony to that
effect — so it could take advantage of the booking question exception. It then took the position that jail housing
was not based on gang affiliation —
and introduced Deputy Dawley’s testimony to that effect — to undermine
Tira. Finally, in the second trial, it
reverted to the position that jail housing was
based on gang affiliation.
Defense counsel never objected below based on
either prosecutorial misconduct or due process.
Accordingly, these particular contentions have been forfeited. (People
v. Thomas (2012) 54 Cal.4th 908, 937 [prosecutorial misconduct];
521, fn. 12 [due process].)
Defendant therefore also argues that defense
counsel’s failure to object constituted ineffective assistance. “ . . . ‘“‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was “deficient†because his “representation fell below an
objective standard of reasonableness . . . under prevailing
professional norms.†[Citations.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.â€â€™â€ [Citation.]
[¶] Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is
a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.â€
[Citation.] Defendant’s burden is
difficult to carry on direct appeal, as we have observed: “‘Reviewing courts will reverse convictions
[on direct appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose
for [his or her] act or omission.’â€
[Citation.]’ [Citation.] If the record on appeal ‘“‘sheds no light on
why counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ the claim on appeal
must be rejected,â€â€™ and the ‘claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding.’ [Citation.]â€
(People v. Vines (2011) 51
Cal.4th 830, 875-876.)
We reject this contention because we do not agree
with defendant’s strained interpretation of Deputy Dawley’s testimony. Actually, all three witnesses — Deputy Byrd,
Deputy Dawley, and Tira — agreed that
the purpose of the questions on the classification questionnaire was to
determine housing. The only
affiliation was more important than
race. Deputy Byrd was not asked to
express an opinion on this, and he did not.
Tira opined that gang affiliation was
controlling, and hence he would be surprised if Fern Street members were housed
with Evans Street members. Deputy
Dawley, on the other hand, took a more nuanced approach. He testified that there was no policy that
absolutely prohibited housing inmates of different races together. At the same time, however, there was no
policy that absolutely prohibited housing members of rival gangs together. This was because, in general, inmates from
rival gangs could get along, as long as they were members of the same race.
Defendant claims that Deputy Dawley testified
“that the jail does not house inmates by gang affiliation, it houses them by
race.†Not so. Quite the contrary, he testified that the
questionnaire did ask about gang affiliation because this was one of a number
of questions about background and experience, and “experience matters.†“We house them on both issues.†Indeed, as between experience and race,
experience mattered more.
Defendant also claims that when Deputy Dawley
said “experience,†he meant only prior incarceration history, not gang
affiliation. It is true that, at one
point, Deputy Dawley testified:
“Q.
. . . And now, just so we know what you mean by experience,
what do you mean by experience?
or what?
“A.
Yes. Their experience would go by
. . . how long they have been in jail, like throughout their life,
their total time. If they have ever been
to state prison, what level they were at.â€
(Italics added.)
It seems clear, however, that Deputy Dawley was
merely agreeing with the suggestion in the question that experience
been in jail,†along with other factors,
such as “[i]f they have ever been to state prison [and] what level they were
at.†He was not testifying that
experience meant only prior
incarceration history. And even assuming
the answer was ambiguous, he had already testified that — as defendant puts it
himself in his brief — “all the questions
on the questionnaire related to the individual’s background and experience
. . . .†That would
necessarily include the gang affiliation question.
In sum, then, Deputy Dawley never contradicted Deputy
Byrd. He never testified that gang
affiliation was irrelevant to
housing. There was no “false testimonyâ€;
the prosecution never took “inconsistent positions.†Thus, defense counsel did not render
ineffective assistance by failing to raise these issues.
D. Second Trial: Motion to Suppress.
1. Additional
factual and procedural background.
Before the second trial, defendant filed another
written motion to suppress his statement during his booking interview that he
was a member of Casa Blanca.
The motion asserted: “Mr. Valdez was asked by Deputy Byrd
during his classification what his gang affiliations were. Mr. Valdez testified at the prior trial
that Deputy Byrd’s inquiry was co[erc]ive.
[Citation.] Deputy Byrd could
clearly see the tattoos on Mr. Valdez’s arms. His inquiry RE: classification, and
threatening to put him with Hillside was designed solely and specifically to
intimidate Mr. Valdez and get him to admit his gang affiliation. It is a coerced and non[‑]voluntary
statement.†It cited defendant’s
testimony at the first trial.
The motion also asserted that the statement was
inadmissible under Miranda. However, it did not cite or discuss either
Deputy Byrd or Deputy Dawley’s testimony at the first trial. It did not discuss the booking question
exception; a fortiori, it did not argue that the booking question here was
pretextual.
The prosecution filed a written opposition,
arguing that the booking process was not coercive and that the booking question
exception applied. Among other things,
it noted that defendant’s receiving sheet did not mention any gang charges or
allegations; it concluded that Deputy Byrd “could not reasonably have known
that the question would elicit an incriminating response
. . . .†Neither the
prosecution nor the defense asked the court to consider defendant’s probable
cause statement, which Deputy Byrd had also read and which noted that the
shooting might have been gang motivated.
(See part IV.A.1, ante.)
At the argument on the motion, the prosecutor
asked the trial court to review Deputy Byrd’s testimony at the section 402
hearing in the first trial or, alternatively, to accept her representation that
Deputy Byrd had not corroborated defendant’s claim of coercion.
The trial court ruled that, even if it were to accept
defendant’s version of the facts, defendant’s statement was not coerced. It then added, “[T]he cases say that this
kind of booking question is acceptable.â€
2. Analysis.
Defendant now argues that the booking question
was pretextual. He forfeited this
contention, however, by failing to raise it in the second trial. (Evid. Code, § 353, subd. (a).)
In the first trial, the trial court had already
decided that the booking question exception applied. Presumably for this reason, in the second
trial, defendant raised a somewhat different contention. He asserted that Deputy Byrd noticed his Casa
Blanca tattoos and threatened to house him with rival Hillside gang members,
unless he admitted that he was, in fact, affiliated with Casa Blanca; thus, his
statement was coerced. The trial court
found, however, that this would not constitute coercion. Defendant does not challenge that ruling.
Admittedly, defendant’s motion did assert that
there was a Miranda violation, but
only in boilerplate, cut-and-paste fashion.
For example, it discussed the standards for whether a
defendant had not waived his Miranda
rights, voluntarily or involuntarily.
Likewise, it discussed how to determine whether a motorist is in custody
for purposes of Miranda, an issue
that was completely irrelevant to this case.
Judging by her argument at the hearing, the
prosecutor seems to have believed that the only issue was coercion. Likewise, as defendant concedes, “[t]he
[trial] court based its decision on whether appellant was coerced
. . . .â€
We recognize that defendant did not have the
burden of producing evidence. “When a
defendant challenges the admissibility of defendant’s postarrest statements on
the ground they were elicited in violation of Miranda, the People have the burden of proving by a preponderance
of the evidence that the statements were not the product of a
(People v. Gomez,
p. 627.) However, defendant did
have the burden of at least alerting the court to the fact that one of the
issues he intended to raise was whether the booking question was
pretextual. He fell short of doing so.
Separately and alternatively, even assuming this
issue was adequately raised, the People met their burden by asking the trial
court to review Deputy Byrd’s testimony in the first trial. As discussed in part IV.A,
booking question exception did apply.
Defendant now argues that Deputy Dawley’s rebuttal testimony showed that
the booking question was pretextual.
However, he did not offer that testimony into evidence to support his
motion. In any event, as we held in part
IV.B, ante, Deputy Dawley did not
actually contradict Deputy Byrd.
Finally, defendant argues that, to the extent
that his defense counsel forfeited his present contention, either (1) by
failing to make the same arguments as in the first trial, or (2) by failing to
introduce the same evidence as in the first trial, they rendered ineffective
assistance. As we discussed in part
IV.B, however, Deputy Dawley’s testimony fell short of showing that the booking
question was, in fact, pretextual.
Accordingly, defendant cannot show that these asserted failures were
either unreasonable or prejudicial.
3. Prosecutorial
misconduct.
In a related contention, defendant also argues
that the prosecutor committed misconduct by citing the receiving sheet, which
did not indicate that there were any gang issues in the case, rather than the
probable cause form, which (at least arguably) did. Defense counsel forfeited this contention by
failing to object on this ground at trial.
Defendant argues that this failure to object
constituted ineffective assistance.
Again, however, the thrust of defendant’s motion to suppress was that
his statement was coerced; it was not that the booking question exception did
not apply or that the booking question was pretextual. Accordingly, whether Deputy Byrd had the
probable cause statement, and whether it indicated that there were gang issues
in the case, were largely irrelevant.
This was reason enough for defense counsel not to object.
And finally, there was no misconduct. “‘A prosecutor commits misconduct when his or
her conduct either infects the trial with such unfairness as to render the
subsequent conviction a denial of due process, or involves deceptive or
reprehensible methods employed to persuade the trier of fact.’ [Citation.]â€
(People v. Houston (2012) 54
Cal.4th 1186, 1222.) The prosecutor did
not conceal the probable cause statement.
Although her written opposition mentioned only the receiving sheet, in
the argument on the motion, she also asked the trial court to review
section 402 hearing in the first trial.
If it had done so, it would have become aware of the probable cause
statement. In the end, however, as
already discussed, it resolved the motion on other grounds.
V
PHOTOS FOUND ON MYSPACE
Defendant contends that, in the first trial, the
trial court erred by admitting photos found on MySpace, because they had not
been properly authenticated.
Defendant also contends that, in the second
trial, defense counsel rendered ineffective assistance by failing to object to
the MySpace photos.
A. Additional Factual and
Procedural Background.
In the first trial, while one Detective Stamps
was on the stand, the prosecution started to question him about a MySpace
page. Defense counsel objected based on
hearsay. As a result, the trial court
heard argument outside the presence of the jury.
The prosecution proffered the following photos:
1.
Ex. 149A: A group photo of
five men and two women, including Gonzales (a victim of the Christmas Eve
shoooting); three of them were wearing Evans Street T‑shirts.
2.
Ex. 149B: A group photo of
four men, including Gonzales. Gonzales
was throwing a Casa Blanca gang sign; another man was throwing the gang sign of
a Casa Blanca clique. Three of them were
wearing Evans Street T‑shirts.
3.
Ex. 149E: A photo of two
men. One of them was throwing the gang
sign of a Casa Blanca clique.
4.
Ex. 150: A group photo of 17
men, including Rangel, Lozano, and Gonzales (victims of the Christmas Eve
shooting).
5.
Ex. 152: A group photo of 12
men, including Rangel and Gonzales; one of them was throwing the gang sign of a
Casa Blanca clique.
Several of the photos included gang-related
captions and other writing. Defendant
was not in any of the photos.
The photos were offered to show that victims of
the Christmas Eve shooting were members
of Casa Blanca and, hence, to show that defendant’s motive was gang
retaliation.
The prosecutor made an offer of proof that
Detective Stamps (using an alias) had “friended†one of the people in one of
the photos; that that person was a member of Casa Blanca; and that Detective
Stamps had downloaded the photos from that person’s MySpace pages.
Defense counsel objected: “[I]f an officer or someone who can
authenticate or talk about who is depicted in the pictures, that’s fine. My objection came when the People started
pointing out different words, and things of that nature, and attributing it to
a particular person. Because we don’t
have a representative of MySpace to show who the site was registered to. We don’t have any verification or
authentication as to who placed the photos up there and actually typed in the
language . . . .â€
The trial court redacted most of the gang-related
writing (though not the words, “the homies from big bad casa blanca evans st.
gang†on Exhibit 150A). Otherwise, it
admitted the photos.
B. Analysis.
Defense counsel did not raise defendant’s present
contention below. He specifically
photos. He objected only to the “wordsâ€
accompanying the photos on the MySpace pages, because there was no evidence “as
to who placed the photos up there and actually typed in the
language . . . .â€
The trial court largely obviated this objection by redacting most of the
writing. It did allow the words “the
homies from big bad casa blanca evans st. gang†to remain. However, defendant is not arguing that this
was error. Rather, his present
contention is that the photos themselves were not shown to be accurate. This particular contention has been
forfeited. (Evid. Code, § 353,
subd. (a).)
Admittedly, if not forfeited, it would have
merit. A writing must be authenticated
before it can be received in evidence.
(Evid. Code, § 1401.) This
means the proponent must demonstrate that the writing is what “the proponent of
the evidence claims it is . . . .†(Evid. Code, § 1400.) A photo is a “writing†(Evid. Code,
§ 250) and hence must be authenticated.
People v.
Beckley (2010) 185 Cal.App.4th 509 is on all fours, as it dealt with a
photo downloaded from MySpace. There,
the girlfriend of one of the defendants testified that, when she began dating
him, she insisted that he stop associating with his gang. (Id.
at pp. 513-514.) To impeach her,
the prosecution introduced a photo showing her flashing a gang sign. A police officer testified that he had
downloaded it from the boyfriend’s
MySpace page. The defendants objected
based on lack of authentication. (
The appellate court held that the trial court
erred by admitting the photo: “‘It is
well settled . . . that the testimony of a person who was present at
the time a film was made that it accurately depicts what it purports to show is
a legally sufficient foundation for its admission into evidence.’ [Citation.]
In addition, . . . authentication of a photograph ‘may be
provided by the aid of expert testimony . . . .’ [Citation.]
. . .
“Although defendants conceded that the face in
the MySpace photograph was [the girlfriend]’s, the record does not contain
. . . evidence sufficient to sustain a finding that it is the
photograph that the prosecution claims it is, namely, an accurate depiction of
[the girlfriend] actually flashing a gang sign.
[The police officer] could not testify from his personal knowledge that
the photograph truthfully portrayed [the girlfriend] flashing the gang sign and
. . . no expert testified that the picture was not a ‘“composite†or
“fakedâ€â€™ photograph. Such expert
testimony is . . . critical today to prevent the admission of
manipulated images . . . .â€
(People v. Beckley,
pp. 514-515.)
Here, identically, no witness with personal
knowledge testified that the photos accurately depicted what they purported to
show, and no expert testified that the photos were not faked. Accordingly, if defense counsel had objected
based on lack of authentication, in either the first or the second trial, the
MySpace photos should have been excluded.
Defendant cannot show, however, that the failure
to object was either unreasonable or prejudicial. Even if the photos themselves had been
excluded, the jury most likel
| Description | On Christmas Day 2005, defendant Martin Leyva Valdez fired four slug rounds from a shotgun through the front door of a house. He killed an 11-year-old boy. He missed the boy’s parents and brother, who watched the boy die. Defendant was a member of the Casa Blanca gang. The night before — on Christmas Eve — a member of the Hillside gang had shot and injured several members of Casa Blanca. Defendant evidently intended to retaliate by firing into the house of the Hillside shooter. By mistake, however, he fired into a very similar house just three doors away down the street. While making his getaway, defendant used the shotgun to menace a potential witness. There was also evidence that defendant forcibly stole a carton of beer from a stranger. Defendant was charged with: Count 1: Murder (Pen. Code, § 187, subd. (a)), with a gang special circumstance (Pen. Code, § 190.2, subd. (a)(22)) and with gang (Pen. Code, § 186.22, subd. (b)) and firearm (Pen. Code, § 12022.53, subd. (d)) enhancements. |
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