P. v. Duenas



















Filed 10/12/12 P. v. Duenas CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT DUENAS, Defendant and Appellant.

B234997 (Los Angeles County Super. Ct. No. BA347638)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

William C. Ryan, Judge. Affirmed.



Lise
M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Eric E. Reynolds, and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.





_____________________________





Robert
Duenas appeals from a judgment which sentences him to 23 years in state prison
for one count of assault with a
semiautomatic firearm in addition to various firearm and gang
enhancements. We affirm the judgment.

FACTS

Dontae
Thomas, who is African-American, was shot outside of a laundromat by a Hispanic
man on September 22, 2008,
at approximately 1:45 p.m. The shooter was standing between two parked
cars. Thomas was hospitalized for nine
days as a result of his injuries, which required href="http://www.sandiegohealthdirectory.com/">surgery on his large and
small intestines and 36 staples.
He was unable to walk for three weeks.

In an
interview at the hospital, Thomas told the police that the shooter asked him
“Where are you from?” when he approached Thomas. When Thomas replied that he “didn’t bang,”
the shooter said, “Fuck you” and shot him with a black handgun. Thomas also advised the police that he
believed it was either a member of “SCK” (South Central Klaneros) or “MKN”
(Mexican Klan or Mexicans Killing Niggers) who was the shooter because those
gangs controlled the neighborhood surrounding the shopping center. The officer showed Thomas two photo books of
SCK and MKN members. Thomas picked out
Duenas’s photograph from 30 or 40 photographs.
At trial, Thomas testified that the shooter referred to “either MKN or
SEC or something like that,” and then shot him with a chrome
semiautomatic. Thomas described the
shooter as between 5’5” and 5’8” tall.
Duenas is 5’2” tall.

Sonia D.
was sitting in her car parked near the laundromat when she heard shots being
fired and saw a tall Hispanic man with a shiny metal object in his hand running
away. Sonia picked Duenas’s photograph
out of a photographic line-up and wrote on the back that he was the person she
saw. At trial, Sonia testified she had
chosen Duenas’s photograph as “closest to the person that I saw running, not as
the person, which is different.” She
also said she did not see the shooter present at trial. She testified that the shooter was overweight
and muscular and at least 5’10” tall.
Sonia claimed she was not afraid for her safety and that she was not
influenced to testify in a specific manner.
On rebuttal, the prosecution offered the testimony of the two
police officers who interviewed Sonia.
They testified that Sonia did not hesitate when she identified
Duenas in the photographic lineup and that she was not influenced by them or
told what to write on the photograph.

Two .25
caliber bullet casings from a semiautomatic weapon were recovered from between
the parked cars near the laundromat. A
search of Duenas’s home revealed 44 rounds of .38 caliber ammunition, but no
.25 caliber bullets. Police officers
also found a photograph of seven or eight Hispanic men with “Klaneros” written
on it and a notepad with the letters “SCK” inscribed on it.

Duenas was
charged by information dated August
31, 2009, with one count of assault with a firearm (Pen. Code, §
245, subd. (a)(2))href="#_ftn1" name="_ftnref1"
title="">[1]
and one count of assault with a semiautomatic firearm (§ 245, subd. (b)). The information further alleged that Duenas
personally used a firearm (§§ 667.5, subd. (c)(8), 1192.7, subd. (c), 1203.06,
subd. (a)(1), 12022.5, subd. (a)), personally inflicted great bodily injury (§
12022.7, subd. (a)), and committed these crimes for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(C)).

At trial,
the prosecution presented evidence as described above. Duenas’s older sister, R.C., testified on
behalf of the defense. She testified
that she picked up Duenas, his wife, and their children from their home after
she left work at 12:30 p.m. on the
day in question. She typically drove
Duenas and his family because they did not own a car. That day, she drove Duenas and his family to
run errands, including visiting Duenas’s mother, picking up his son from kindergarten
at 1:30 p.m., and cashing Duenas’s
unemployment check. R.C. drove Duenas
and his family to cash the check at the Maple Liquor Store on 24th and San
Pedro. They then went back to Duenas’s mother’s
home to visit from 2:30 to 3:50 p.m.


The kindergarten
teacher at Duenas’s son’s school testified that Duenas usually picked his son
up from school and his son was present on September 22, 2008, though school was dismissed at 1:04 p.m. on that day and not 1:30 p.m.
The owner of the Maple Liquor Store testified that Duenas typically
cashed his unemployment checks at the store but had no definite memory of
Duenas being there on September 22,
2008. However, his records
showed that the bank cleared Duenas’s unemployment check on September 23, 2008,
and he testified he typically takes the day’s checks to the bank every
afternoon between 2:30 and 4:30 p.m. and would not have taken a check from
anyone other than the person to which it was made payable.

The defense
also presented testimony from an expert specializing in eyewitness
identification. Dr. Robert Shomer
testified that facial recognition and memory between strangers is only accurate
50 percent of the time. Identification
is affected by light, distance, duration, stress, weapons focus, and cross-racial
factors. He also testified that there is
no correlation between confidence and accuracy.

The jury
found Duenas guilty of the second count of assault with a semiautomatic firearm
and found all the special allegations true as to that count. The trial court dismissed the first count,
assault with a firearm, as a lesser-included offense. Duenas was sentenced to the mid-term of six
years on count 2 with an additional ten years for the gang enhancement, four
years for firearm enhancement, and three years for the great bodily injury
allegations for an aggregate term of 23 years.
The trial court also ordered a restitution fine of $2,000 under section
1202.4, subdivision (b), and a stayed a parole revocation fine of $2,000 under
section 1202.45. Additional fees were
imposed. Duenas timely appealed on July 29, 2011.

DISCUSSION

Duenas
contends on appeal that the admission of gang evidence during trial on the
substantive charges violated his federal due process rights because it induced
the jury to convict him based on weak identification
testimony. We conclude the gang
evidence was properly admitted and that Duenas was not denied due process of
law.

I. Procedural History

Prior to
trial, defense counsel moved to bifurcate the trial on the gang
allegation. The prosecution objected,
arguing that gang evidence was independently admissible even without the gang
allegation because it was probative on motive and identification. More specifically, the prosecutor
pointed out that Thomas told the investigating officer that the shooter
belonged to a specific gang and asked him “where are you from,” which was a
term of art in criminal gang culture and indicated a gang challenge.

The trial
court denied the motion to bifurcate, explaining that “I usually will not
bifurcate it, and I’m not inclined to do it in this case because it’s offered
not just for the gang allegation but for motive for the substantive
offenses.” The trial court warned the
prosecutor not to put on his gang evidence until he had put on all other
evidence of the substantive offenses.
The trial court further limited the expert’s testimony to the gangs in
question, but that “if it’s affiliated with the Mexican Mafia, he can talk
about Mexican Mafia because they all run together[.]” The trial court stressed that the gang
testimony must be focused and be presented last, after all other prosecution
evidence, so that the jury would not be influenced by it as much. As a result, the prosecution presented
testimony, as described above, from Thomas, Sonia, and the three responding
police officers before the gang expert.

II. Expert
Testimony

The prosecution’s gang expert,
Kevin Raines, then testified. He said he
was a gang investigator with the Los Angeles Police Department. Raines confirmed he was familiar with the SCK
gang, which he viewed as a small gang, with between 20 and 30 documented
members. SCK claims a territory bordered
by Central Avenue, 22nd Street, Adams Boulevard and Griffith Avenue. SCK members use “Klaneros,” “Klan Life,” and
“SCK-23” in their tagging. Raines also
testified that SCK members are friendly with the MKN or Mexican Klan gang,
which approximately 30 members and whose territory is about 15 or 20 blocks
from SCK’s territory. Thomas was shot in
MKN territory.

Raines testified that he believed
Duenas was an active member of SCK at the time of Duenas’s shooting because he
admitted his membership to police in 2008.
He also had tattoos of the letters “S,” “C,” and the word “Klan Life” on
his arms. Gang paraphernalia was also
found at his home, including a photograph with “Klaneros” written on it and a
notebook with the letters “SCK” inscribed on it. Duenas also had tattoos of “V,” “K,” and “13”
on the base of his left index finger.
Raines testified that this tattoo stood for Vario Klan 13, which “is
symbolic for being a Southern California Mexican gang
member . . . with allegiance to the Mexican Mafia.” Raines explained that a non-member who had a
gang tattoo would be killed or beaten up.


To prove the gang enhancement,
Raines: testified that SCK members were
known to commit crimes of vandalism, tagging, carrying loaded firearms in
public, assault with deadly weapons, attempted murder, and murder; described
crimes committed by an active SCK member named Abraham Gomez, who was found
carrying a concealed firearm in December 2007 and who committed grand theft
auto in 2008; testified that SCK member Juan Cajero was also arrested for
carrying a loaded firearm in public; and alluded to an unnamed SCK member who
committed a murder in 2007 near where Thomas was shot but who fled the country
and was never convicted. Raines noted
that both of Gomez’s crimes were committed near where Thomas was shot.

When given a hypothetical which closely
tracked the facts of this case, Raines opined the shooting was committed for
the benefit of the SCK gang. Raines
explained, “when [members of a street gang] commit a shooting like this in the
face of the community, it’s pretty much telling everyone around them they’re
willing to go and do whatever it takes or commit whatever level of violence
they need to gain respect or gain fear, and . . . The more
fear a street gang [engenders], the better off they are. [¶]
They’ll have less challenges from their rivals. People in the community will be less likely
to confront them or even go to the police if they have to deal with them.” Raines also testified that witnesses sometimes
changed their story when they are forced to come to court and face a gang member.

At the end of trial, the judge
instructed the jury, in pertinent part: “[y]ou may consider evidence of gang
activity only for the limited purpose of deciding whether the defendant acted
with the intent, purpose or knowledge that are required to prove the
gang-related crimes and enhancements or the defendant had a motive to commit
the crimes charged. [¶] You may also consider this evidence when you
evaluate the credibility or believability of a witness and when you consider
the facts and information relied on by an expert witness in reaching his or her
opinion. [¶] You may not consider this evidence for any
other purpose. You may not conclude from
this evidence that the defendant is a person of bad character or that he has a
disposition to commit crime.”

III. The
Gang Evidence was Properly Admitted at Trial

From what we can discern after
reading his briefs, Duenas attempts to argue the aforementioned gang evidence
was improperly admitted on a somewhat novel basis. First, correctly citing to >People v. Hernandez (2004) 33 Cal.4th
1040, 1050 (Hernandez), he
acknowledges that the California Supreme Court issued a definitive opinion in
this area of the law, making it clear that bifurcating a trial on gang
allegations from the underlying substantive charges is disfavored. Owing to the clarity of California law on
this point and the state of the evidence in this case, Duenas does not claim
the trial court abused its discretion in denying bifurcation in this case. Instead, he finds two other means to argue
that admission of the gang evidence resulted in a denial of due process. He first relies on People v. Albarran (2007) 149 Cal.App.4th 214, 229 (>Albarran), a case in a unique and
entirely different procedural posture than the instant case. Second, because there is no applicable
federal authority on point, he analogizes the denial of bifurcation in this
case to federal cases involving severance of charges and contends the failure
to bifurcate the gang allegation resulted in unfairness so gross as to amount
to a denial of due process. We decline
to follow Duenas down his misguided path.


California courts have long
recognized the potentially prejudicial effect of evidence relating to gang
membership. However, case law also
indicates that this does not mean gang evidence should be excluded as a matter
of course. In Hernandez, supra, 33 Cal.4th at pages 1049-1050, the California
Supreme Court explained that “[i]n cases not
involving the gang enhancement, . . . evidence of gang
membership is potentially prejudicial and should not be admitted if its
probative value is minimal.
[Citation.] But evidence of gang
membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s
gang affiliation--including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the
like--can help prove identity, motive, modus operandi, specific intent, means
of applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.] To the extent the evidence supporting the
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]”
The court further held that the burden was on the defendant to show that
there was a substantial danger of undue prejudice if the trial on the gang
allegations was not bifurcated and that the trial court had broad discretion to
deny a motion to bifurcate. (>Ibid.)
In reaching this conclusion, the Hernandez
court held that a gang enhancement is “attached to the charged offense and is,
by definition, inextricably intertwined with that offense.” (Id. at
p. 1048.) Here, Duenas concedes
that some of the gang evidence was relevant and admissible to establish the
charged offenses—evidence of the gang challenge, the identification of Duenas
from a book of SCK photographs and the gang-related items found at his
home. Given the holding of >Hernandez and the state of the evidence
in this case, Duenas wisely does not contend the trial court’s ruling on
bifurcation was an abuse of discretion.

Instead, Duenas argues that the
evidence of crimes committed by his fellow gang members and of his association
with ‘Mexicans Killing Niggers’ and the Mexican Mafia was not relevant because
it did not prove that he was the person who shot Thomas, or establish a motive for him to kill Thomas. He claims “[a]ll of this testimony was
nothing more than saying that Mr. Duenas committed the crime because he was the
sort of person who would shoot an inoffensive stranger of another race and who
associated with other violent, racist people.”
As such, he argues he was denied due process by admission of the evidence. Not so.


The bottom line is this: the gang evidence he points to as having been
inappropriately admitted was offered to prove the elements of the gang
enhancement allegation. The gang
allegation required proof that an “ongoing organization, association, or group
of three or more persons, whether formal or informal, having as one of its
primary activities the commission of one of more of [certain enumerated]
criminal acts . . . , having a common name or common
identifying sign or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).) Evidence of past or present conduct by gang
members involving the commission of one or more of the statutorily enumerated
crimes is relevant in determining the group’s primary activities. (People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.) As a result, Duenas is simply wrong in
arguing that the gang evidence was not relevant in this trial -- where a gang
enhancement was alleged. Had this
evidence been excluded from trial, it would have prohibited the People from
proving their case.

Further, gang motive was essential
to understanding the charged offenses, because the evidence showed the shooting
was prompted by someone asking, “where are you from” or stating “either MKN or
SEC [sic] or something like
that[.]” It was not enough for Thomas to
testify that the shooter made a gang challenge.
Without evidence explaining that the question “where are you from” is a
challenge to fight in gang culture, the jury would not have been given context
to Thomas’s testimony. Moreover,
evidence of Duenas’s membership in SCK would not have explained his presence
and conduct in MKN territory. Raines’s
testimony about the close association between these two gangs was vital to
presenting the case for the substantive charges as well as the gang
enhancement.

In any event, the court properly
instructed the jury that it was not permitted to consider the gang evidence to
prove defendant has a bad character or is disposed to commit a crime. We, of course, presume the jury understood
and followed the court’s instruction in the absence of any showing to the
contrary. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

Duenas’s reliance on >Albarran, supra, 149 Cal.App.4th 214 for a different result is also
misplaced. In that case, Albarran was
found guilty of attempted murder, shooting at an inhabited dwelling and
attempted kidnapping for carjacking. As
to each count, a gang enhancement allegation was found true. Thereafter, a motion for new trial was
granted as to the gang allegations, but the trial court found sufficient
evidence to support each of the underlying convictions. On appeal, Division Seven of this District
determined that the trial court should have granted a new trial as to the
underlying convictions as well because the gang evidence, properly admitted to
prove the gang allegations which were subsequently dismissed, prejudiced his
trial on the underlying charges. (>Id. at pp. 230-231.) Obviously, this case is entirely different
because the gang allegations were never dismissed and we are not called upon to
determine, in hindsight, whether the gang evidence prejudiced the proof of the
underlying charges as a result.

Turning to the federal cases to
which Duenas cites, United States v. Lane (1986) 474 U.S. 438, 449 (>Lane) and Kotteakos v. United States (1946) 328 U.S. 750 (>Kotteakos), we also find them
inapplicable to this case. Both >Lane and Kotteakos addressed the concepts of joinder and severance under
federal law. The U.S. Supreme Court held
that “an error involving misjoinder ‘affects substantial rights’ and requires
reversal only if the misjoinder results in actual prejudice because it ‘had
substantial and injurious effect or influence in determining the jury’s verdict.’” (Lane,
supra, 474 U.S. at p. 449, quoting from Kotteakos,
supra, 328 U.S. at p. 775.)

In each case, the issue was whether the trial of >other crimes committed by >other defendants should have been joined
or severed from the case involving the appellant. Here, by contrast, the gang enhancement
evidence is “attached to the charged offense and is, by definition,
inextricably intertwined with that offense.”
(Hernandez, >supra, at p. 1048.) Lane and
Kotteakos are also distinguishable on
the basis that they address severance and joinder while this case involves
bifurcation. The Hernandez court has held federal issues of severance to be an
imperfect analogy to bifurcation. (>Hernandez, supra, at p. 1050.) We decline to apply an imperfect analogy to
the bifurcation issue when the Hernandez court
has addressed it squarely. In any case,
due process is not violated when evidence is properly admitted to prove a
charge against a defendant. Simply put,
a defendant does not suffer a fundamentally unfair trial when gang evidence is
admitted to prove a gang enhancement allegation.href="#_ftn2" name="_ftnref2" title="">>[2]





>DISPOSITION

The
judgment is affirmed.



BIGELOW,
P. J.

We concur:



FLIER,
J.





GRIMES, J.