P. v. Garcia
Filed 1/29/13 P. v. Garcia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
JORGE ARMANDO GARCIA and
JUAN PABLO GARCIA,
Defendants and Appellants.
G045371
(Super. Ct. No. 07CF3830)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Richard W. Stanford, Judge. Affirmed as modified.
Arthur
Martin, under appointment by the Court of Appeal, for Defendant and Appellant
Jorge Armando Garcia.
Sharon
G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant Juan Pablo Garcia.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and
Respondent.
Brothers
Jorge and Juan Garcia were convicted of special circumstances murder for
killing a rival gang member.
name="_ftnref1" title="">[1] They contend there is insufficient evidence
to support the prosecution’s theory the killing was gang related, the court
erred in admitting a false statement Jorge made about Juan after the killing,
and the court erred in allowing lay testimony regarding the accuracy of a
witness’s identification. We find these contentions
unmeritorious, and other than to correct an undisputed sentencing error, affirm
the judgment in all respects.
FACTS
On November 18,
2007, Jorge was living in an
apartment complex at 521 South Lyon Street in Santa Ana. The complex
is located in disputed gang territory, with both the Lyon Street gang and Los Crooks gang staking claim to the
area. At around 5:00 p.m. on the 18th, Jose “Kid†Granillo and several other Lyon Street members were hanging out in the parking area of the
complex. They were drinking beer and
smoking drugs when Jorge pulled up in his Chevy Tahoe. Granillo puffed out his chest, glared at
Jorge and claimed Lyon
Street, and
in response, Jorge announced his allegiance to Los Crooks. Granillo then made a derogatory reference to
Los Crooks and challenged Jorge to fight.
But Jorge didn’t stick around. He
told Granillo, “I’ll be right back†and promptly left the area in his vehicle.
About 30 minutes later,
Jorge returned to the same location in his vehicle. This time, he was not alone. When he pulled up to Granillo’s group, a man
wearing a hooded sweatshirt exited the front seat of his vehicle and approached
Granillo. Granillo set down his beer and
assumed a fighting stance. However, the
man pulled out a gun and fatally shot Granillo in the chest with a single
bullet. The shooter then rejoined Jorge
in his vehicle, and they drove away.
Miguel Chavez lived at
the apartment complex where the shooting took place and was among the people
who were hanging out with Granillo when he got shot. At trial, he claimed he could not remember
anything about the shooting or identify anyone in the courtroom as being
involved in it. But when the police
questioned him in the wake of the shooting and showed him lineups containing
appellants’ photographs, he identified Jorge, aka “Spy,†as the driver and Juan
as the shooter. On the witness stand,
Chavez insisted he was “just pick[ing] out random people†when he made those
identifications. And although he signed
documents attesting to his identifications, he claimed he didn’t really know
what he was signing. Nonetheless, Chavez
denied the police had coerced him. He
said he did not feel pressured by his interrogators and that he had a choice in
terms of picking out suspects from the lineups.
Porforio Vasquez was
also with Granillo at the time of shooting.
He told the police he recognized the driver of the Chevy Tahoe as a Los
Crooks member named “Spy.†Vasquez said
that, like himself, Spy lived in the apartment complex where Granillo was
gunned down. He also said Spy had
confronted him a few months before the shooting occurred. On that occasion, Spy asked Vasquez about
some Lyon Street graffiti he had found in his parking space. He also asked Vasquez what gang he belonged
to, and when Vasquez said Lyon Street, Spy made a disparaging remark about that
gang.
During
his police interview, Vasquez was shown photographic lineups containing
appellants’ pictures. Vasquez said he
wasn’t very good at identifying people from photos, but he could show the
police where Spy lived in his building.
Thereupon, the police drove Vasquez to the apartment complex, and he
pointed them to Jorge’s apartment, which was not far from his own unit.
Based on the strength of Vasquez’s and
Chavez’s statements, the police arrested Jorge at the apartment complex two
days after the shooting. They then
searched his apartment and his vehicle — the Chevy Tahoe — and found writings
and other indicia connecting him to Los Crooks.
In the parking spot assigned to Jorge, they noticed the words “R.I.P.
Kid†and “Lyon Street†written in large black letters.
After waiving his
Miranda rights, Jorge told the police that on the day of the shooting, he and
his family were having a birthday party at his apartment for his son. At one point during the party, he went out to
move his Chevy Tahoe and saw Granillo and others in the parking lot. Granillo started “mad-dogging†him, so Jorge
asked him, “What’s up, homey?†Granillo
called out Lyon Street, and Jorge said he was from Los Crooks. Then Granillo told Jorge, “Fuck, cucarachas,â€
which is a derogatory term for Los Crooks, and challenged Jorge to fight. Being outnumbered, Jorge drove away
instead. He admitted to the police that
he and Granillo had squabbled that day, but he denied driving back to the scene
after that with the gunman. When the
police told him that witnesses had seen him drive back and had identified him
as being at the scene of the shooting, all Jorge could say was, “I can’t say
that I was there.â€
When the police asked
Jorge when he last saw his brother, he said that Juan had moved to Mexico a
couple of weeks before the shooting and that he had not seen him since
then. He also claimed the gang evidence
found in his apartment and vehicle was old, and he didn’t spend much time with
Los Crooks anymore because he had a family and worked full-time.
matter of pride and loyalty, he still considered himself to be a member of Los
Crooks, and he always would. He said he
wasn’t out there “gangbanging like he used to,†but if anybody ever asked him
or “hit him up,†he was never going to “punk out†or back down from a gang
challenge. Jorge’s gang ties were
further evidenced by the fact that, while he was in custody awaiting trial in
this case, guards found Los Crooks graffiti in his cell that he admitted
writing.
As part of their
investigation, the police also interviewed Alex Diaz. He said he was walking home from the store
when he saw a passenger alight from a vehicle in the parking lot and shoot
Granillo. He identified the driver as
Jorge but did not see the passenger’s face and was unable to identify him.
Despite Jorge’s claim
that Juan had moved to Mexico, the police spotted him driving on the 91 freeway
nine days after the shooting. Using
their sirens and overhead lights, they tried to pull him over, but Juan refused
to yield. Instead, he led the police on
an extended high-speed chase before eventually pulling over on the 57 freeway
near Brea. After he was arrested and
placed in the back of a police car, an officer asked him if he was
comfortable. Juan didn’t answer the
question; he simply wanted to know, “Is the guy going to be all right?†The officer told Juan he could not discuss
that with him and did not attempt to engage him in further conversation.
Appellants’ sister
Martha testified that Juan called her on his cell phone during the high-speed
chase and frantically declared, “It was not me.
It was not me.†However, Police
Officer Andy Alvarez testified that when he spoke to Martha about the
conversation she had with Juan during the chase, she said that Juan had told
her, “The cops are chasing me for what I did.â€
Santa Ana Police Officer
David Rondou was the lead investigator on the case. He also testified as a gang expert for the
prosecution. Rondou stated the primary
goal of criminal street gangs such as Los Crooks is to obtain respect by
committing acts of violence that spread fear in the community. He called guns the “bread and butter†of
gangs and said they are highly prized by most gangs, including Los Crooks. Indeed, according to Rondou, Los Crook’s
primary activities at the time of the shooting in 2007 were illegal firearms possession
and robbery. Court records also
reflected that over the years Los Crooks members have been involved in other
crimes, such as auto theft, residential burglary and street terrorism.
Rondou said Los Crooks
was the predominant gang at the apartment complex where the shooting occurred
until about a decade ago, and then Lyon Street began to emerge as a serious
power in the neighborhood. Since then,
both gangs have been vying for control of the complex. Rondou said gang members are expected to
retaliate severely when they or their gang are disrespected by a rival gang
member. Even when the disrespect takes
the form of a derogatory remark, a violent response such as murder is not out
of the question. In fact, Rondou has
seen that scenario played out so many times in his career that he referred to
it as “gangs 101.â€
Rondou also testified
about the concept of “back-up.†He said
gang members rely on their fellow members to help them out when they are in
trouble and to commit crimes when they are on the offensive. They must be able to trust each other in all
respects and honor the code of silence.
Under that code, “snitching†or “ratting†on fellow gang members is
strictly forbidden, and even implicating rival gang members is frowned upon. As Rondou put it, “A rat is a rat, whether
you are telling on your buddy or you’re telling on a rival gang member for
shooting someone in front of you, it is still a no-no in the gang
subculture.â€
As far as appellants are
concerned, Rondou opined they were both active members of Los Crooks at the time
of the shooting. Rondou reached that
opinion based on the following factors:
1) Appellants have multiple Los Crooks tattoos; 2) when contacted by
Rondou and other officers over the years, they have consistently identified
themselves as Los Crooks members; 3) they have received numerous gang notices,
documenting their status as Los Crooks members; and 4) their conduct in the
present case is consistent with gang behavior.
Given a hypothetical
scenario steeped in the facts of this case, Rondou opined the shooting would
“absolutely†promote, further or assist the criminal activities of the
shooter’s gang. He explained a gang
member who was disrespected and outnumbered “goes and gets back-up, . . . arms
himself, and . . . [t]o save face, he handles that disrespect. [¶] Him shooting that rival gang member not
only elevates his status, to come back and do the murder, but it elevates the
gang they are from. That sends a message
to everyone else that even if you say something to us that we don’t like, we will
shoot and kill you. [¶] Those rumors
fly. Those things go all through the
gang subculture. That’s how these gangs
get these ruthless reputations of being killers, and not to mess with us.â€
In their defense,
appellants presented alibi evidence from several of their relatives. Some of them testified that Jorge was with
them at the birthday party for Jorge’s son at the time of the shooting. And some of them testified that Juan was with
them at an unrelated BBQ that day. (The
birthday party and the BBQ were only a few miles apart.) Several people who attended the BBQ told
police that someone, possibly a “brother,†came and picked up Juan and that the
two of them were gone for some period of time.
In the end, the jury
convicted appellants of first degree
murder and active participation in a criminal street gang, aka street
terrorism. The jury also found true
several gang-related allegations, as detailed below. The court sentenced appellants to life in
prison without the possibility of parole on the murder count, plus additional
time for the gang offense. This appeal
followed.
I
Appellants argue there
is insufficient evidence to support the jury’s findings on the gang
charges. We disagree.
determining the sufficiency of the evidence to support a criminal conviction,
we “‘review the whole record in the light most favorable to the judgment below
to determine whether it discloses substantial
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.’ [Citation.] ‘“Substantial evidence includes
evidence. [Citation.]†[Citation.]’â€
(People v. Loza (2012) 207
Cal.App.4th 332, 346-347.) The same
standard applies when we
finding on an enhancement allegation or a special
circumstances allegation. (
668, 790-791; People v. Augborne
(2002) 104 Cal.App.4th 362, 371.)
In addition to convicting
appellants of first degree murder, the jury found appellants guilty of
violating Penal Code section 186.22, subdivision (a).
actively participates in any criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and
who willfully promotes, furthers, or assists in any felonious criminal conduct
by members of that gang, shall be punished†up to three years in prison. (§ 186.22, subd. (a).)
The
jury also found true three gang-related allegations attendant to the murder
count. First, the jury found true the
special circumstances allegation that appellants murdered Granillo while they
were “active participant[s] in a criminal street gang, as defined in
subdivision (f) of Section 186.22, and the murder was carried out to further
the activities of the criminal street
gang.†(§ 190.2, subd.
(a)(22).)
Second,
the jury found true the enhancement allegation that appellants murdered
Granillo “for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further or assist in
any criminal conduct by gang members[.]â€
(§ 186.22, subd. (b).)
And
lastly, the jury found true that, in acting with such intent, appellants
intentionally discharged a firearm and thereby proximately caused Granillo’s
death. (§ 12022.53, subds. (d)
& (e).)
Appellants
do not dispute they were members of Los Crooks when the shooting occurred. However, they maintain the prosecution failed
to prove that Los Crooks was a criminal street gang at that time. A criminal street gang is “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 or more
of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31)
to (33), inclusive, of subdivision (e), 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.†(§ 186.22, subd. (f).) As interpreted by our Supreme Court, the term
primary activities requires that the “commission of one or more of the statutorily
enumerated crimes is one of the group’s ‘chief’ or ‘principal’
occupations. [Citation.]†(People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
Appellants
argue the record does not contain substantial evidence of that
requirement. Although gang expert Rondou
testified specifically about the primary activities of Los Crooks, appellants
claim his opinion was insufficient to support the jury’s findings on that
issue. The claim is not well taken.
Rondou testified he has
been working as an investigator in the gang unit of the Santa Ana Police
Department for over 20 years. He has
investigated “thousands of gang-related incidents, including murders,
attempt[ed] murders, firearms, assaults, [and] things of that nature.†In addition, he has “talked to probably
10,000 gang members over the years, both in and out of custody, in regards to
the gang subculture, the in’s and out’s, the issue of respect, [and] the role
of guns. Just, basically, what makes
them tick.†Rondou also has vast
experience with the California Street Terrorism Enforcement and Prevention Act
(STEP), which includes the crimes and
enhancements at issue in this case. (§§ 186.20 et seq.) In
fact, he teaches police officers and prosecutors how to investigate gang crimes
and has testified as a gang expert in over 100 cases.
Rondou’s experience with
and knowledge of Los Crooks allowed him to testify extensively about the gang’s
history, territory, identifying symbols, activities and membership. When the prosecutor asked him what Los
Crooks’ primary activities were at the time of the shooting in 2007, he said
robbery and illegal firearms possession, activities which encompass two or more
of the statutorily enumerated offenses set forth in the gang statute. (§ 186.22, subd.
(e) (2), (23) & (31)-(33).)
Notwithstanding
Rondou’s extensive experience with the subculture of gangs and his familiarity
with Los Crooks, appellants assail his testimony about Los Crooks’ primary
activities as being “conclusory†and argue it is insufficient to support the
jury’s findings on that issue. In so
arguing, appellants draw our attention to In
re Alexander L. (2007) 149 Cal.App.4th 605, in which the evidence on the
primary activities requirement was found to be lacking. But in that case, the gang expert merely
testified he knew the subject gang was “involved†in certain offenses; he did
not testify directly to the gang’s primary activities or explain the basis for
his opinion. (Id. at pp. 611-612.)
Here, in contrast, Rondou specifically
testified that robbery and illegal firearms possession were Los Crooks’ primary
activities. And he detailed the
foundation for his opinions about the gang by saying they were based on his
training, experience, review of documents and conversations with other
officers. Explaining the extent of his
personal experience with Los Crooks, Rondou said, “I’ve driven through [their]
neighborhood. I’ve seen the
graffiti. I have talked to other people
involved in [that] gang.†Considered as
a whole, we are convinced Rondou’s expert testimony constitutes substantial
evidence of the primary activities requirement and provides sufficient evidence
from which the jury could find Los Crooks constituted a criminal street gang
for purposes of the charged crimes and enhancements. (People
v. Gardeley (1996) 14 Cal.4th 605, 620.)
II
Irrespective of that
issue, appellants claim the particular elements of the special circumstances
allegation are not supported by substantial evidence. The record shows otherwise.
Consistent with the
language of section 190.2, subdivision (a)(22), the jury was instructed that in
order to find the special circumstances allegation true, the prosecution had to
prove beyond a reasonable doubt that appellants were active participants in Los
Crooks at the time of the shooting and that they murdered Granillo to further
the activities of that gang. (CALCRIM
No. 736.) In addition, the jury was
instructed the prosecution had to prove appellants knew that Los Crooks members
engage in or have engaged in a pattern of criminal gang activity. (Ibid.) Although this knowledge requirement is not
expressly contained in section 190.2, subdivision (a)(22), it is
constitutionally mandated as a matter of due process. (People v. Carr (2010)
190 Cal.App.4th 475, 487-488.)
A “pattern
of criminal gang activityâ€
includes the commission of two or more statutorily
enumerated offenses, provided they occurred within a specified time period and
were committed on separate occasions or by two or more persons. (§ 186.22, subd. (e).) In
this case, the prosecution presented evidence that a Los Crooks member other
than appellants was convicted of auto theft and active participation in a
criminal street gang in 2005, and another Los Crooks member was convicted of
residential burglary in 2004. Appellants
concede this evidence satisfied the pattern requirement. However, they maintain there is insufficient
evidence they were aware of these offenses, so as to satisfy the knowledge
requirement of the special circumstances allegation.
Appellants
are mistaken. The special circumstances
allegation “does not require a defendant’s subjective knowledge of particular
crimes committed by gang members . . . .â€
(People v. Carr, supra, 190
Cal.App.4th at p. 488, fn. 13.) Rather,
the prosecution must merely prove the defendant was aware of “the gang’s
illegal purposes.†(Id. at p. 488.) And there
was plenty of evidence from which the jury could infer such awareness in this
case.
Rondou
testified that when he interviewed Jorge, Jorge admitted he had been “jumped
in†Los Crooks, i.e., initiated into the gang, at an early age. Rondou also knew that Jorge’s gang moniker
was “Spy†and that he had several Los Crooks’ tattoos, which demonstrated his
allegiance to that gang. In addition,
Jorge had received five “STEP Notices†between 2002 and 2005. Rondou explained that STEP Notices are used
by the police to keep track of suspected gang members. The notices informed Jorge that Los Crooks is
criminal street gang and that he has been identified as an active participant
in that gang.
Over the years, Juan has received about the
same number of STEP Notices as Jorge.
Speaking to Juan’s gang connections, Rondou said he has “been a
free-admitter of being a Los Crooks gang member with the moniker of Looney
since about 1996, and he has numerous [Los Crooks] tattoos. And for the most part, any time the police
have contacted him and asked him, he has been proud of that affiliation.†Juan also has an extensive criminal record,
which includes convictions for kidnapping, robbery and active participation in
a criminal street gang.
Focusing
on their STEP Notices, appellants contend the notices may be sufficient to
prove the police considered them to be gang members, but they are insufficient
to prove they were subjectively aware Los Crooks members engaged in illegal
activity. But, as shown above, it wasn’t
just the STEP Notices that provided proof on that issue. Rather, the prosecution presented evidence
indicating that appellants have long associated with Los Crooks and proudly
identified themselves as members of that gang.
Given appellants’ loyal affiliation with the gang, as well as their
prior conduct and actions in the present case, the jury could reasonably infer
they were sufficiently immersed in the gang to know that its members have
engaged in a pattern of criminal activity.
There is no reason to disturb the jury’s finding on that issue.
In attacking the special
circumstances finding, appellants also insist there is insufficient evidence
they carried out the shooting to further the activities of Los Crooks. They contend the motive for the shooting was
more personal than gang related, but again, the record belies this
contention. The Lyon Street-Los Crooks
rivalry was well documented by the evidence, as was appellants’ allegiance to
Los Crooks. And a few months before the
shooting, Jorge confronted Lyon Street member Vasquez over the presence of Lyon
Street graffiti in his parking lot. That
set the stage for Jorge’s subsequent encounter with Granillo, which had all the
trappings of a typical gang encounter.
Granillo “mad dogged†Jorge and claimed Lyon Street, and in response,
Jorge hoisted Los Crooks’ flag by announcing his allegiance to that gang. Then Granillo upped the ante by saying “fuck,
cucarachas,†which is a derogatory term for Los Crooks.
Rather
than taking on Granillo’s group by himself, Jorge left to get Juan, and they
returned a short time later to get their revenge. Rondou described appellants’ actions in
shooting Granillo as “gangs 101†because gang members so often react with
violence when they or their gang are disrespected. Indeed, it’s been Rondou’s experience that is
how gang members spread fear and obtain respect in the community, which is the
ultimate goal of criminal street gangs.
As Rondou explained, gun violence in particular is an effective way to
achieve respect because it “sends a message to everyone else that even if you
say something to [gang members] that [they] don’t like, [they] will shoot and
kill you. [¶] Those rumors fly . . .
[and] [t]hat’s how these gangs get these ruthless reputations of being killers,
and not to mess with [them].â€
All
told, the circumstances of the shooting, coupled with Rondou’s expert testimony
on the subculture of gangs, were amply sufficient to support the jury’s finding
that appellants acted to further the activities of Los Crooks. We therefore reject their challenge to the
sufficiency of the evidence to support the jury’s finding on the special
circumstances allegation.
III
Appellants challenge
their convictions for street terrorism on one of the same grounds upon which
they challenged the true finding on the special circumstances allegation. They contend there is insufficient evidence
they were aware that Los Crooks members have engaged in a pattern of criminal
activity. For reasons explained above,
we find that argument unconvincing.
Therefore, we affirm appellants’ convictions for active participation in
a criminal street gang.
IV
Next, Juan contends the
trial court erred in admitting Jorge’s statement to police that he (Juan) was
in Mexico at the time of the shooting.
Juan avers the statement was unduly prejudicial within the meaning of
Evidence Code section 352 and violated his right to a fair trial, but we cannot
agree.
The admissibility of
Jorge’s statement about Juan being in Mexico was litigated extensively before
trial. The prosecutor argued the
statement was highly probative as to Jorge because it was a false statement
that reflected his consciousness of guilt.
He also claimed that because the statement did not explicitly incriminate
Juan, its admission would not violate the Aranda-Bruton
rule, which prohibits the admission in a joint trial
of one defendant’s confession that powerfully and facially incriminates another
defendant. (See
123; People v. Aranda (1965) 63
Cal.2d 518.) Although it was clear that
Jorge was not going to testify, and thus Juan would not be able to
cross-examine him about the statement, the prosecutor believed that any
possible “spill-over†prejudice that Juan might engender from the statement
could be cured by admonishing the jury to consider the statement only as to
Jorge.
Juan’s
attorney argued a limiting instruction to that effect would not suffice to stem
the prejudice to Juan because the jury would naturally infer that the only
reason Jorge lied about Juan being in Mexico was to protect his brother by
attempting to throw the police off his trail.
However, finding the statement to be relatively benign in nature, the
court allowed the prosecution to introduce it to show Jorge’s consciousness of
guilt. To protect Juan’s right to a fair
trial, the court admonished the jurors that they could not consider the
statement in deciding whether he was guilty of the charged offenses. However, the court did not believe the
statement was so prejudicial so as to compel its exclusion altogether.
Juan disagrees. However, he admits that because the statement
was not offered for the truth of the matter asserted, it did not implicate the
of the Aranda-Bruton rule. (See People
v. Carter (2003) 30 Cal.4th 1166, 1208-1209; People v. Smith (2005) 135 Cal.App.4th 914, 921-924.) This is an important point because
exception†to the “almost invariable assumption of the law that jurors follow
their instructions. . . .†(Richardson
v. Marsh (1987) 481 U.S. 200, 206-207.)
Given that the Aranda-Bruton
rule is inapt in this case, we may presume the jury followed the court’s
limiting instruction regarding the permissible use of Jorge’s statement. Nevertheless, Juan insists the statement
should have been excluded under Evidence Code section 352 and as a matter of
due process.
Evidence Code section
352 empowers the trial court to “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.†However, “[t]he trial court has
the relevance of evidence and in assessing whether its prejudicial effect
outweighs its probative value.†(
900.) On review, we give great deference
to the court’s determinations in this regard and will not disturb them unless
an abuse of discretion has been shown. (
488.)
We
must also keep in mind that the prejudice referred to in Evidence
Code section 352 is not synonymous with damaging to
one’s case: “Evidence need not be
excluded under [this] provision unless it ‘poses an intolerable “‘risk to the
fairness of
reliability of the outcome.Չۉ۪
[Citation.]†(
exists only when the subject evidence is “of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side
because of the jurors’ emotional reaction.â€
(People v. Scott (2011) 52
Cal.4th 452, 491.)
Jorge’s
statement about Juan’s whereabouts at the time of the shooting did not rise to
that level. Jorge’s claim that Juan was
in Mexico was obviously contrary to appellants’ alibi evidence, but it did not
directly implicate Juan in the shooting.
It was not so powerfully incriminating that the jury would be unable to
consider it only for the limited purpose for which it was offered. That limited purpose was to assess Jorge’s
culpability for the shooting. As the
court instructed, the jury could logically infer from the statement that Jorge
made a false or misleading statement about the shooting that reflected his
consciousness of guilt. The statement
didn’t involve him, but by trying to weaken the identification of his brother,
Jorge was effectively trying to absolve himself of liability for the shooting. The lie was an obvious attempt by Jorge to
discredit the police theory that he and his brothers were the culprits. It was perhaps not the most compelling
argument in the prosecution’s quiver, but it was not bad enough to allow us to
find an abuse of discretion in its admission.
And,
as a safeguard against its misuse, the court properly informed the jury that,
standing alone, the statement was insufficient to prove the charged
offenses. More importantly, the court
admonished the jurors they could not use the statement in deciding Juan’s
culpability. These were not terribly
difficult concepts for the jury to understand and apply. Considering both the content of the statement
and the limited purpose for which it was offered, we do not believe it was so
inflammatory as to invoke an emotional reaction from the jurors or prevent them
for deciding the case in a fair and impartial manner. As such, its admission did not violate
Evidence Code section 352 or due process.
V
Following the shooting,
Lyon Street gang member Miguel Chavez was interviewed by gang detective Eric
Paulson, and at trial, a tape recording of that interview was played for the
jury. In addition, the prosecution was
allowed to question Paulson about the circumstances of the interview and why it
is sometimes hard to elicit information from gang members. Appellants assert Paulson’s testimony in this
regard constituted improper opinion testimony, but we do not find that to be
the case.
Paulson first testified
about the identification procedures he went through with Chavez. He explained that he showed Chavez two
photographic lineups and that Chavez identified Jorge from one and Juan from
the other. Then he had Chavez put his
initials next to appellants’ photos and sign an admonishment form.
Following Paulson’s
preliminary testimony on these points, the tape recording of his interview with
Chavez was played for the jury. The
interview revealed that Chavez was reluctant to identify anyone in the lineups
and that Paulson had to work to overcome Chavez’s resistance in that
regard. For example, when shown the
lineup containing Jorge’s photo, Chavez initially claimed that no one looked
familiar to him. In response, Paulson
told Chavez, “You’re scared and you’re playing games. You’ve seen this guy and you’re looking at
his picture right now. You’ve seen this
guy once a day over the last two years.
Now I realize that he may not look exactly the way that he looks right
now but you recognize him. I can see you
looking right at his photograph right now.â€
At that point, Chavez stated, “I think its number four,†referring to
Jorge’s photo.
Anticipating that
Paulson’s interrogation techniques would be a ripe subject for the defense to
attack the reliability of Chavez’s identifications, the prosecution engaged
Paulson in the following line of questioning:
“Q [by the
prosecutor]: Now, you kind of heard at
the end [of the tape] there you were a little bit persistent with [Chavez]?
“A [by Paulson]: Yes.
“Q. Why was that?
“A. “His body language,
some of his answers he was very hesitant.
It was obvious he was scared.
“[Jorge’s
attorney]: Your Honor, we’re going to
object to this type of analysis here about the witness. The testimony speaks for itself and the tape.
“THE COURT: Overruled.
Answer may remain. Ask your next
question.
“Q [by the
prosecutor]: So, you were persistent
because you noticed his body language, he looked scared and why else?
“A [by Paulson]: Having literally done hundreds of these
interviews --
“[Jorge’s
attorney]: This is improper right here,
his analysis about a witness.
“THE COURT: Overruled.
You may answer.
“A [by Paulson]: It is difficult to get information out of
people who are scared. They are
scared. They just saw something horrific
happen in front of them. Often, they
feel it’s going to happen to them. They
don’t want to be labeled as a rat.
That’s more important than being forthcoming, and being honest and
cooperating with the police. It is hard
for witnesses, who have witnessed stuff like this, to overcome that.
“[Jorge’s attorney]: This is improper. This needs to be struck, your Honor.
“THE COURT: Answer may remain. Feel free to cross examine.
“Q [by the
prosecutor]: You can continue with your
answer.
“A [by Paulson]: You have to push. Each witness, the victims, you don’t know
these people, so you don’t know how far to push or how to push. It is a difficult job. And you have to push to get enough
information from them to, you know, continue with the case, to get them to tell
you what you believe is important to the case.
[¶] It’s, you know, sometimes not pleasant. Sometimes we swear. Some people don’t understand that, but it’s
the nature of the beast. That’s what we
do. Sometimes it’s not pretty, but
that’s just what we have to do.
“[¶] . . . . [¶] Q. And based on your training and
experience in the [g]ang [u]nit, is it difficult to get information from
gangsters?
“A. Yes.
“Q. Even rival
gangsters?
“A. Yes.â€
With that, the
prosecutor yielded the floor, and the court invited appellants to cross-examine
Paulson. They declined to do so.
Appellants argue
Paulson’s testimony constituted “impermissible lay opinion regarding [Chavez’s]
veracity and usurped the jury’s role as the sole fact finder at trial and the
determinant of the credibility of witnesses.â€
However, the Attorney General contends appellant’s argument is “much ado
about nothing†because “Paulson did not testify or even suggest that eyewitness
Chavez was credible.†We find ourselves
something less the one hundred percent sold on the Attorney General’s
argument. Although Paulson did not
expressly opine on Chavez’s veracity, he did suggest fear of being “labeled as
a rat†is what keeps gang members from “being forthcoming, and being honest and
cooperating with the police.†The
unmistakable implication of Paulson’s testimony was that his technique was used
to gain Chavez’s cooperation, and the officer certainly didn’t want Chavez to
cooperate in a lie.
Still, we cannot
subscribe to appellants’ position that Paulson’s testimony constituted improper
lay testimony. While opinion testimony
regarding the veracity of a witness is generally inadmissible (
(2008) 44 Cal.4th 248, 299), “‘[e]vidence a witness is afraid to testify is relevant to
the credibility of that witness and is therefore admissible. [Citations.]
Testimony a witness is fearful of retaliation similarly relates to that
witness’s credibility and is also admissible.
[Citation.] It is not necessary
to show threats against the witness were made by the defendant personally, or
the witness’s fear of retaliation is directly linked to the defendant for the
evidence to be admissible.
[Citation.]’ [Citation.]†(People
v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)
The
gravamen of Paulson’s testimony was that he could not question Chavez as he
would a bystander who had witnessed a traffic accident. This was proper and probative testimony;
jurors would not ordinarily understand the role of fear and the gang code of
silence, had it not been explained to them.
They might not understand why a rival gang member would not be anxious
to help in the investigation and immune to the fear an ordinary citizen might
feel about rival gangsters.
It
was therefore reasonable for the trial court to allow Paulson to testify as to
why Chavez may have been reluctant to identify appellants as the people who
murdered Granillo. Chavez obviously knew
appellants were gang members. And
although appellants were Chavez’s rivals, gang expert Rondou testified “a rat
is a rat,†and under the “unwritten code†of gang conduct, “it is still a
no-no†for a gang member to “snitch†on a rival gang member by implicating him
to the police. The jury could reasonably
infer that the consequences for such snitching would be severe, and that is why
Chavez was reluctant to identify appellants.
Even eyewitness Diaz, who was not in a gang, said he held back
information from the police at first because he “did not want to get involvedâ€
in the case. The gang dynamics of the
shooting were clearly such that fear of retaliation played a role in the
witnesses’ willingness to cooperate with the police. Since that played into the issue of witness
credibility, the prosecution was properly allowed to present evidence as to why
Chavez may have been reluctant to identify appellants. Paulson’s testimony on this topic did not
violate the rules of evidence or undermine appellants’ right to a fair
trial. Indeed, the combination of having
them hear the tape and Paulson’s explanation of his interrogation technique was
the best way to provide them the tools for evaluating Chavez’s statement.
VI
Appellants’
remaining argument requires little discussion.
In count 2, they were convicted of active participation in a criminal
street gang for willfully promoting, furthering or assisting felonious conduct
by members of their gang.
(§ 186.22, subd. (a).) And
at sentencing, they both received an additional determinate sentence for that
offense. However, a defendant cannot be
punished twice for committing a single act.
(§ 654.) Here, the
prosecution relied solely on the murder alleged in count 1 to satisfy the
felonious conduct requirement in count 2, and the jury was specifically
instructed to that effect. Under these
circumstances, as the Attorney General concedes, appellants’ sentences on count
2 must be stayed. (People v. Mesa (2012) 54 Cal.4th 191.) We will modify the judgment accordingly.
DISPOSITION
The judgment is modified
to stay appellants’ sentences on count 2 for active participation in a criminal
street gang. The clerk of the superior
court is directed to prepare a new abstract of judgment reflecting this
modification and send a certified copy to the
affirmed.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
name="_ftn1" title=""> [1]
When referring to the
Garcia brothers individually we will use their first names to avoid confusion;
when referring to them jointly we will refer to them as appellants.
and never displayed any violent tendencies.
