P. v. Figueroa
Filed 7/30/12
P. v. Figueroa CA4/3
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDUARDO RIOS FIGUEROA,
Defendant and Appellant.
G045017
(Super. Ct. No. 09SF0935)
O P I N I O N
Appeal from a judgment
of the Superior Court of
County, Richard M. King, Judge.
Affirmed.
Theresa Osterman
Stevenson, 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, Barry Carlton and James H. Flaherty III,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
DNA evidence, vocal
recognition, and eyewitness identification
all showed appellant Eduardo Rios Figueroa to be one of at least three (maybe
four) men who invaded a Laguna Niguel apartment early one morning, threatened
its occupants, robbed them of their valuables, and tried to pin the crime on a
rival gang by declaring they were from that gang, there for the purpose of
“taxing” the occupants. Figueroa was
subsequently convicted of four counts of first degree robbery, one count of
residential burglary, and one count of street
terrorism. He was sentenced to 35
years to life in prison.
On appeal, Figueroa’s
main argument centers on the testimony of a gang expert who, in the process of
opining that Figueroa was an active member of his gang, recounted a series of
contacts by police officers (about seven of them if we count right) in which
Figueroa was found in gang territory and in the company of fellow gang
members. Figueroa claims the contact evidence
was unduly prejudicial to his case under section 352 of the Evidence Code,
the effect of encouraging the jury to convict him based merely on his bad
character.
Not so. There was no abuse of discretion in allowing
the testimony. The kind of evidence that
exceeds the pale of a trial judge’s discretion permitted by section 352 is
evidence that “uniquely tends to
evoke an emotional bias against the
defendant” and “has very little effect on the issues.” (People
v. Karis (1988) 46 Cal.3d 612, 638, italics added.) The evidence which the deputy district
attorney elicited from the gang expert here was prosaic, devoid of any
emotional impact, took very little time in the trial, and went directly to the
contested issue of whether Figueroa was an active member of the Varro Viejo
gang. And, given the strength of the
other evidence tying Figueroa to the Laguna Niguel robbery, any arguable error
was obviously harmless under People v.
Watson (1956) 46 Cal.2d 818 (Watson).
FACTS
Three, maybe four,
intruders broke into a Laguna Niguel apartment about half past 5 on the morning
of October 4, 2009, to rob its six occupants of their valuables.
“older” guy of about 35 who stood by a doorway with a gun. The older guy pointed a gun at one of the
occupants and told them they were being “taxed” by “San Clemente,” a gang which
the occupant understood to mean the “Varro Chico” gang. As the intruders left, one exclaimed that
they’d be back every month.
The older guy standing
by the doorway had buzzed hair, a mustache, and a tattoo on his left upper arm,
“SJC” (for San Juan Capistrano).
name="_ftnref3" title="">[3] Another occupant had seen him before at a
friend’s house, recognized him, and also recognized his voice. That particular occupant would later identify
Figueroa in open court as the man
standing at the doorway with the gun.
The intruders were in
the apartment some 30 to 45 minutes. As
they were about to leave, they took a number of the occupants into a room “as
hostages.” A stern admonition was given
to remain seated there, and not call the cops, because if they did, the
intruders, having the identification of the occupants, would return and “do
something about it.”
Even so, it was not a
clean getaway. Within a minute after the
intruders had slammed the front door and left the house, one of the occupants
grabbed a baseball bat, another occupant grabbed a skateboard, and the two gave
chase. They found the getaway car reversing.
The occupant with the skateboard managed to break the back driver’s side
window. The one with the bat smashed the
back trunk. The car kept on going.
The getaway car was a
tan, four-door Honda Accord. Later that
day police found a tan Honda Accord with a smashed driver’s side window and a
dented trunk, ditched on the outskirts of territory claimed, not by the Varro
Chico gang, but by the rival Varro Viejo gang.
A slurpee cup with a red
straw was found in the smashed Honda.
There was enough DNA on the red straw to match it to Figueroa.
steering wheel. While two other sets of
DNA were found on the steering wheel, Figueroa was a “major contributor” to the
DNA found on the steering wheel. There
was only one “major DNA profile” found on the gear shift – and that was
Figueroa’s also.
DISCUSSION
A.
Section 352 and the “Contact” Evidence
Figueroa contends the
trial court erred, under section 352, in admitting testimony from a gang
expert: In the process of explaining his
opinion why Figueroa was an active member of Varro Viejo, the gang expert recounted
a series of contacts Figueroa had with the police prior to the October 4
break-in and robbery. The testimony as
to each contact was skeletal. Each
contact was documented by either a “STEP notice”
“field identification card,”
name="_ftnref6" title="">[6] in which Figueroa was found to be
associating with a known member of Varro Viejo in Varro Viejo territory. There was no testimony about the
circumstances surrounding each contact or any statements which Figueroa might
have made to the police during each encounter.
The contact evidence had
been the subject of a pretrial conference and a motion in limine brought by the
defense concerning the general subject of the field identification cards. At the pretrial conference, defense counsel presented
what is now Figueroa’s main theory on appeal, namely that the sheer multitude
of Figueroa’s encounters with the police would tempt the jury to short-circuit
the deliberative process and simply convict on a perception of Figueroa’s bad
character.
the danger.
title="">[8] He ultimately ruled that the prosecution was
“not to mention through the expert the quantity of the police reports nor the
specifics of the police reports.”
Part of the pretrial
colloquy on the field identifications centered on just how much evidence from
the gang expert was really needed to show Figueroa’s active membership in the
gang. After all, it was pretty obvious
Figueroa was at least a member of Varro Viejo, having once admitted to the
police he was “jumped into” the gang at age 14. But defense counsel never formally conceded
the point of Figueroa’s active participation, merely noting that his active
membership was a “reasonable inference” from other evidence.
to concede Figueroa’s active membership in his closing argument to the jury.
The prosecutor obeyed
the letter of the trial judge’s pretrial ruling, refraining from asking
questions about the specifics of the police reports or any question along the
lines of how many reports, cards or
contacts the gang expert considered. On
the other hand, the gang expert was allowed to briefly reference, seriatim,
seven contacts, and any juror taking good notes might have been able to count
them up.
title="">[10]
Section 352
provides: “The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” On balance,
we cannot say the trial judge abused his discretion under section 352 in
allowing the gang expert to recount the seven contacts. The probity easily outweighed any undue
prejudice.
As to probity, as noted,
the defense never formally conceded the issue of Figueroa’s active
participation in Varro Viejo – as we have seen the issue was still being
contested at the very end of defense counsel’s argument.
relative frequency of the contacts was itself
indicative of active participation. Some
people are nominal members of civic organizations, religious organizations,
even bar associations, but never attend their meetings. A juror might reasonably question whether
such individuals are really “active” members.
But people who go often to meet with their fellow members – a lodge
member who attends meetings on a weekly basis or, in Figueroa’s case, is found
with fellow gang members many times in the course of the month before the sort of
event for which Varro Viejo exists – may readily be classified as “active.”
As to prejudice,
according to Karis, the sort of
prejudice that exceeds the bounds of discretion under section 352 must have a
unique tendency to invoke emotional bias.
(Karis, supra, 46 Cal.3d at p.
638.) The evidence presented by the gang
expert here, however, was dull and short.
He counted only a series of cards (in one case a STEP notice), with the
minimalist details that Figueroa was with a certain known member of Varro Viejo,
in territory claimed by Varro Viejo. The
evidence took no more than a few pages transcript in a trial that easily exceed
700 pages, and nothing about the contacts was belabored.
B. Sufficient
Evidence and Harmless Error
In the spirit of a good
defense being a good offense, and as if to say to this court, “don’t even think
about a harmless error rationale,” Figueroa argues on appeal that the evidence
of his participation in the break in and robbery was insufficient. It is a brave effort, but an unavailing
one. Seldom do we see a case with
stronger evidence.
Figueroa’s DNA was found
on a straw in a cup on the center console of the smashed getaway car. Even if other drivers had driven that car
from time to time, a reasonable juror could readily infer that Figueroa was the
last driver. Why should the driver put up with somebody
else’s mess in the center console
Moreover, as the DNA expert noted, Figueroa was the “major contributor”
to the DNA on the steering wheel and gear shift, corroborating the inference
that he was the driver that October morning.
Figueroa’s attempt at
minimization of the eye and ear witness identification is also
unpersuasive. To say that the occupant
who heard Figueroa’s voice was unreliable because of a lack of training in
voice recognition is, charitably, a stretch.
It is also a small matter that the same occupant was not as certain
(maybe only fifty percent) in his initial photo identification than his
in-court identification. Most of us can
recognize people we have seen more easily when we see them in person than when
we see a photo of them. There was no
uncertainty on the part of this witness when he identified Figueroa in
court. And the fact he might not have
known the difference between a bicep and a tricep (with reference to the “SJC”
tattoo on Figueroa’s arm) is virtually meaningless – he knew the tattoo was on
the arm, whether or not he could pass an anatomy test.
To be sure, the
occupants of the apartment had been up the night before, partying, and ingesting
alcohol and marijuana. And that was a
factor the jury certainly could consider.
But they also could consider that the occupants of the house who
testified as witnesses, including the occupant who recognized Figueroa in
court, had to summon up a considerable degree of courage to do so. They had, after all, been the target of a
gang attack and they were testifying against a member in good standing of the
Varro Viejo.
In short, the evidence
was overwhelming, and the paltry effect of a few brief references to field
identifications would have made no difference – certainly under a
C. The
Exclusion of the Non-Deliberating Juror
Appellant complains
about the trial court’s removal of a juror, juror 10, for failure to
deliberate. Both sides agree on the
law. As stated in People v. Cleveland (2001) 25 Cal.4th 466, 487-488 (
there was “evidence showing to a demonstrable reality that the juror failed or
was unable to deliberate.”
name="_ftnref12" title="">[12] Where the parties disagree is whether the
record shows such a demonstrable reality of failure or unwillingness to
deliberate.
We set forth the record
on the discharge in detail below. It
shows unequivocally that juror 10 had an actual disagreement with the law that
allows persons to be convicted without 100 percent certainty of guilt. (See People
v. Brigham (1979) 25 Cal.3d 283, 303 [“‘absolute certainty’
. . . is not the degree of belief necessary to convict”].)
The episode began with
the jury sending a note to the judge stating:
“Jury is deadlocked, 11 to 1.”
Later that day the jury sent another note saying, “Clarification on the
reasonable doubt, circumstantial evidence, and whether you must be 100 percent
certain of the evidence.”
The two notes provoked
discussion between court and counsel on the subject of whether the jury really
was deadlocked. Defense counsel took the
position that the jury appeared initially deadlocked, but then had resumed
deliberations centering on the concept of reasonable doubt. The court gave the instruction approved in
1105, 1118-1119, but by the end of the day the jury sent another note back,
suggesting the instruction hadn’t helped.
The note said: “We have a juror
that cannot accept making a decision with any grey areas or doubt. This juror has stated their views clearly in
the jury room.”
While the court and
counsel were deliberating what to do about that note, yet another note came
in: “A juror wants to elaborate on their
views. The juror cannot follow the
court’s instruction in good conscience.”
The judge determined to
conduct “an inquiry.” Then there was
more discussion with counsel about how to proceed with that inquiry. Defense counsel’s contribution was a desire
to know “from this foreperson” if the juror in question “before indicated a
willingness to follow instruction and, based on following the instruction, they
still were not able to side with the remaining 11 jurors.” Defense counsel posited that “their position
could have evolved, and at some point this person could have been applying the
law and just had what we have here, which is a doubt.”
The upshot was that the
trial judge asked the jury foreperson some questions outside the presence of
the rest of the jury. The judge read the
“a juror wants to elaborate on their views” note, and asked: “Can you explain to me what you meant by that
[referring to the contents of the note] without telling me the deliberation
process in terms of what facts are being discussed, what the views are Would you be able to tell me that”
The foreperson said,
“Yes. So this juror has a personal
standard that is higher than reasonable doubt.”
The court then asked if there had been “a discussion with the jurors on the
reasonable doubt instruction.” The
foreperson replied that there had been “quite a few.”
“I take it’s one juror;
is that correct” the judge inquired.
The foreperson replied yes.
“All right. Has this juror indicated to the jury it would
not follow that instruction [referring to the reasonable doubt
instruction]”
“I don’t personally
believe it’s that juror’s interpretation.
I understand that reasonable doubt is a bit of vague term, that
something reasonable to one person might not be reasonable to another,” replied
the foreperson.
The foreperson then
elaborated, “I believe that this juror felt without completely understandable
evidence to them, a hundred percent clear, that they would not be able to judge
a particular piece of evidence.”
The judge then posited
two hypotheticals to the foreperson: In
one, a juror says “‘I don’t care what the instruction says. I’m not going to follow it.” In the other hypothetical, the juror says,
“‘My views on this evidence [are] such that when I read that instruction, these
are my views.’”
“It’s definitely the
first,” replied the foreperson.
The judge wanted to make
sure. “It’s the first case where the
juror says, ‘I’m not going to follow the instruction.’”
“Yes,” replied the
foreperson. “The juror says, ‘I feel
that I understand what I’m being asked to do, and I don’t feel that I should do
it.’”
After an admonition to
the foreperson not to discuss with his fellow jurors the exchange he just had
with the judge, the foreperson was excused.
Defense counsel thought the forthcoming inquiry should be modified “a
bit” from the questions just asked of the foreperson, but did not
elaborate. The judge agreed, but
likewise did not elaborate. Juror 10 was
then brought in.
The judge reassured
juror 10 that he could not “inquire about your views as to whether the evidence
was sufficient for a conviction.” Juror
10 indicated agreement with the judge’s reassurance, then the judge asked this
question: “All right. But I am going to ask you some questions
having to do with the law that the court has instructed you on. And I want to ask you specifically. Specifically, without telling me what
instruction, is there a particular instruction that you have read that you cannot
follow Or let put it in a second
situation. You’ve read the law, you
understand the law.”
“Uh-huh,” said juror 10.
“But your view of the
evidence,” the judge continued, “you applied it to the law, and you’ve come up
with a result. So the difference between
the two is you have the law, you’re not going to – you disagree with the
law. Or, number two, you have the law,
you applied the facts to the law, and you have a result. Do you understand the two”
“Yes.”
“All right.” The judge then asked which alternative
fit. “Are we – are we with you situation
number one or situation number two”
Juror 10’s answer was
unequivocal. “Number one.” She disagreed with the law.
After a quick inquiry as
to whether juror 10 could be able to tell the judge what the law was from
memory, the judge got a little more specific.
“We have had some communications from the jurors. And there was a clarification that was
requested yesterday on reasonable doubt and circumstantial evidence.” The judge next asked, “Is it the law of one
of those two that you cannot follow”
Juror 10 answered yes.
The judge asked which of
the two. Juror 10 answered, “I think
it’s both.”
The judge inquired, “Has
this been something that has been present throughout the deliberation, or is it
something that’s just recent.”
“No. It’s been present,” replied juror 10.
Juror 10 then added,
“And I wish I would have been able to relate – I mean I’m just learning that,
but it’s been present all along.”
Juror 10 was excused,
and the court entertained a motion to remove juror 10.
Defense counsel argued
that the court did not “inquire as to the reason why the juror could not follow
the law.” The reason, he asserted, might
have been either “her own personal beliefs, whether or not she personally
disagrees with the law,” or, on the other hand, “whether that has to do with
maybe some outside pressure that she experienced from fellow jurors.” Defense counsel thought further inquiry was
indicated. The judge disagreed. Juror 10 was discharged, an alternate took
her place, and Figueroa was subsequently convicted.
Figueroa’s argument on
appeal is a gloss on his trial counsel’s complaint that further inquiry was
necessary to establish precisely why juror 10 was not deliberating – the trial
judge’s “truncated inquiry” did not demonstrate that juror 10 was really unable
or unwilling to continue deliberations.
The exchange we have
recounted leaves no doubt that juror 10 simply disagreed with the law that does
not require absolute certainty to convict.
The judge was careful to construct alternative scenarios – did the juror
disagree with the law or merely have a different view of the evidence – put
those scenarios to both the foreperson and the juror herself, and each answer
was consistent: disagreement with the
law. The court also specifically asked
juror 10 whether her disagreement had been “present throughout the
deliberation,” or was “something that’s just recent.” Juror 10 was clear that it had been present
throughout, thus eliminating trial defense counsel’s supposition that undue
pressure from other jurors might have been the real reason for her
position. We find no error; the trial
judge’s handling of the matter was exemplary.
D. Cruel
and Unusual
Figueroa’s sentence was
35 years to life, based largely on the trial court’s decision not to strike one
of his prior convictions for assault with a deadly weapon.
The
math behind the 35 years to life goes like this: The court took Figueroa’s conviction on just
count one (first degree robbery in concert) which came with a 15 years to life
sentence, then doubled that for the strike prior, arriving at 30 years to life,
then added another five years because of another prior for assault with a
deadly weapon.
title="">[13]
Figueroa’s final
argument is that it was an abuse an abuse of discretion for the trial judge to
refuse to strike his earlier conviction (see People v. Ramero (1996) 13 Cal.4th 497) and section 186.22,
subdivision (b)(4) enhancement. (Another
prior had already been dismissed before trial.)
The net result of these refusals, he asserts, was to impose a sentence
that contravenes the cruel and unusual punishment clauses of the state and
federal constitutions.
As a straight-out
challenge to the sentence on cruel and unusual grounds, Figueroa cannot, of
course, prevail. (See
20-21 [25 years to life for theft of golf clubs under three strikes law not
cruel and unusual]; People v. Sullivan
(2007) 151 Cal.App.4th 524, 536, 568-569 [upholding sentence of 210 years to
life for six robberies imposed on recidivist offender].) The question thus comes down to whether the
trial court abused its discretion in deciding not to strike the gang
enhancement and prior conviction. (See
376 [review is for abuse of discretion].)
And the answer is an
unqualified no. Figueroa was 39 years
old at trial, a Varro Viejo member since age 14. As the trial judge was careful to spell out
for the record, there were multiple victims of Figueroa’s crimes, the crimes
were committed in concert with a street gang, the victims were put in great
fear, and the crime involved a home invasion.
Further, as the judge noted, Figueroa has a “significant criminal
history.” Given his recidivism, use of a
gun, home invasion, and active promotion of the interests of a criminal street
gang, Figueroa approaches the archetype the Legislature had in mind when it
passed the three-strikes law and provided for additional gang enhancements.
IV. DISPOSTION
The judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title=""> [1] All references to section 352 in
this opinion are to the Evidence Code.
All other undesignated statutory references are to the Penal Code.
name="_ftn2" title=""> [2] One of the occupants woke to find
a Hispanic male holding a knife next to him, and later testified he noticed
three other males running in and out of the apartment with their loot. The subsequent indictment, however,
identified only Figueroa and two other males, and those two were not prosecuted
because there was insufficient evidence as to them. For purposes of this appeal the question of
whether there were three or four intruders is academic.
