P. v.
Romero
Filed 4/10/13 P. v. Romero CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD
APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL RENE
ROMERO,
Defendant and
Appellant.
C066658
(Super. Ct.
No. CRF090945)
A jury convicted defendant Michael
Rene Romero of attempted murder, mayhem,
attempted robbery, assault by means of force likely to produce great bodily
injury, and criminal street gang activity.
The jury also found true various enhancement allegations, such as that
defendant committed particular offenses for the benefit of a criminal street
gang.
Defendant
now contends (1) the trial court erred in admitting -- pursuant to the adoptive
admission exception to the hearsay rule -- incriminating statements made by
defendant’s cohort, because there was no evidence that defendant heard and
adopted the statements; (2) the trial court violated defendant’s Sixth
Amendment right to confrontation when
it admitted a witness’s statement that defendant and his cohort said the “Red
Nose Pittz†gang was “about beating people upâ€; (3) the trial court erred in
admitting letters attributed to defendant because the letters were not
authenticated; (4) the trial court erred in instructing the jury that a person
is “equally guilty†of a crime whether he or she committed it personally or
acted as an aider and abettor; and (5) there is insufficient evidence that
defendant committed the offenses to benefit a criminal street gang.
We
conclude (1) the trial court did not abuse its discretion in admitting the
cohort’s statements pursuant to the adoptive admission exception, because there
was sufficient evidence supporting a reasonable inference that defendant
adopted the statements as true; (2) defendant’s confrontation clause claim
fails because the witness was subjected to cross-examination at trial and the
referenced statement was not testimonial; (3) the content of the challenged
letters and the manner in which they were obtained provided sufficient
authentication; (4) although the trial court instructed the jury with former
CALCRIM No. 400, defendant has not established prejudice because the trial
court also properly instructed the jury with CALCRIM 401 regarding the required
mental state for aiding and abetting, and even if the jury rejected the
prosecution’s theory that defendant was the direct perpetrator of the attempted
murder, substantial evidence supports the prosecution’s alternate theory that
defendant aided and abetted the commission of the offense; and (5) substantial
evidence supports the jury’s gang enhancement findings.
We
will affirm the judgment.
BACKGROUND
David
Eid was driving on West Capitol Avenue
in West Sacramento
around 3:00 a.m.
on January 21, 2009,
when he saw two Hispanic males beating a man.
Jacques Harpst was the victim.
At
first Harpst was on his feet and the attackers were “swinging on him.†But after Eid drove past the group, he looked
in his rearview mirror and saw Harpst go down on his back and stop moving. One of the attackers stood at Harpst’s head
and struck Harpst on the head and chest; the other attacker stood at Harpst’s
feet and kicked Harpst.
Eid
made a U-turn and stopped his vehicle across from the attackers. The attackers paused, one of them looked up,
but then both resumed beating Harpst, “wailing on him pretty good again.†According to Eid, the attacker standing over
Harpst’s head hit Harpst a lot harder than the second attacker, delivering
rapid blows to Harpst’s head and kicking Harpst. The second attacker stood back and kicked and
stomped on Harpst hard. It appeared to
Eid that the attackers “were having a good time.†Eid never saw Harpst fight his attackers or
defend himself.
Eid
drove and revved his engine but the attackers continued hitting Harpst. Eid then stopped his truck in front of Harpst
and the attackers fled. Eid testified he
did not see the attackers’ faces.
Eid
saw Harpst bleeding profusely from the mouth, ear and nose. Harpst was unconscious, his eyes were swollen
to the size of golf balls, and he was making gurgling sounds. Harpst’s pants pockets were pulled out but he
still had a wallet with $14.99 in cash.
A
surveillance video at a nearby market showed two individuals, one wearing a
white jacket and the other wearing a black sweatshirt and a white hat. The prosecution presented evidence that prior
to the attack, codefendant Antonio Delgado was with defendant near West
Capitol Avenue. Delgado wore a white jacket and a red knit
cap and defendant wore a dark-colored hoodie sweatshirt or jacket and a white
baseball cap. Police subsequently seized
a white jacket and a red knit cap from Delgado’s residence.
After
viewing the surveillance video from the market, police spoke with nearby
residents, including Erica Raya, a friend of Delgado’s girlfriend Vanessa
Ramos. Raya said Ramos, Delgado and
defendant had been at Raya’s apartment, that Delgado and defendant left to get
cigarettes, and when they returned about two hours later, Delgado said he and
defendant beat someone up.
Ramos
told police that Delgado and defendant left Raya’s apartment to bum a cigarette
from someone. When Delgado and defendant
returned, Ramos saw a tooth stuck in defendant’s hand and defendant’s hands
were bloody. Delgado told Ramos that
when he asked someone walking by for cigarettes, the person “flipped out†and
threw cigarettes at Delgado. Delgado and
defendant hit the person and Delgado checked the person for money.
Defendant
told Ramos he punched the person because he thought the person was going to hit
Delgado. Defendant said he hit the
person in the face and mouth. The
prosecution presented evidence that Delgado and defendant were members of the
Red Nose Pittz, a subset of the Norteño
street gang.
Harpst
was hospitalized for about three months.
He had bleeding in the brain, brain tissue injury, fractures to most of
the bones in his face, and missing teeth.
He received reconstructive surgery on his face, head and nose. The attack affected Harpst’s senses, balance
and ability to communicate. He had no
memory of the attack.
Defendant’s
first trial resulted in a mistrial. In a
second jury trial, the jury convicted him of
187, subd. (a), 664, subd. (a) -- count 1), mayhem (§ 203 -- count 2),
attempted robbery (§§ 211, 664, subd. (a) -- a lesser included offense to
count 3), assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(1) -- count 4), and criminal street gang activity
(§ 186.22, subd. (a) -- count 5).
The jury also found true the allegations that the attempted murder was
willful, deliberate and premeditated (§ 664, subd. (f)), that defendant
willfully and personally inflicted great bodily injury upon the victim and said
injury caused the victim to become comatose due to brain injury (§ 12022.7,
subd. (b)), and that defendant committed the felonies alleged in all counts
except count 5 for the benefit of, at the direction of or in association with a
criminal street gang with the specific intent to promote, further or assist in
any criminal conduct by gang members
(§ 186.22, subd. (b)(1)).
The
trial court sentenced defendant to an aggregate term of 28 years eight months
to life as follows: 15 years to life,
plus five years for the section 12022.7, subdivision (b) enhancement on count
1, the upper term of eight years on count 2, and one-third the middle term
(eight months) on count 3. The trial
court imposed and stayed sentences on counts four and five, and on the enhancements
on counts two through five, pursuant to section 654.
DISCUSSION
I
Defendant
contends the trial court erred in admitting -- pursuant to the adoptive
admission exception to the hearsay rule -- incriminating statements made by
Delgado to Ramos and Raya. Defendant
argues there was no evidence that he heard and adopted Delgado’s
statements. Defendant says Ramos and
Raya did not establish defendant’s exact location in Raya’s apartment when
Delgado implicated defendant in the attack, and the fact that Raya’s apartment
was small was insufficient to prove that defendant heard Delgado’s
statements.
A
Ramos
and Raya testified at Delgado’s trial and defendant’s trials. The same judge presided at each trial. The testimony by Ramos and Raya at
defendant’s first trial indicated that Raya had a small one-bedroom apartment
with no wall between the kitchen and the living room. While defendant was in the living room or at
the kitchen table and Delgado was in the living room, Delgado said defendant
hit and kicked the victim, they were trying to get money and cigarettes from
the victim, and they got cigarettes from the victim. Defendant did not deny Delgado’s
statements.
The
trial court found, based on statements Ramos and Raya made to police and their
testimony at defendant’s first trial, that Delgado’s statements implicating
defendant were admissible as adoptive admissions because the statements were
made in defendant’s presence, the jury could find that defendant heard
Delgado’s statements, and defendant failed to deny Delgado’s statements.
Accordingly,
at defendant’s second trial, Raya was permitted to testify as follows: Ramos, Delgado and defendant were at Raya’s
apartment the evening of January 20, 2009.
At some point in time, Delgado left the apartment to get a
cigarette. Defendant followed
Delgado. The two returned to the
apartment out of breath. Thereafter,
Raya heard sirens. Delgado told Ramos he
wanted a cigarette and “the guy fought him, and they fought and they robbed
him.†Delgado said he checked the victim
for money and they got money and cigarettes from the victim. When Delgado was speaking, Raya, Ramos,
Delgado and defendant were in the living room, but defendant could have been at
the kitchen table, which was very close to the living room. Defendant did not say anything. The following morning, Raya saw Delgado with
a handful of red-colored Marlboro brand cigarettes.
Ramos
was also permitted to testify about incriminating statements made by
Delgado. Ramos testified as
follows: Delgado left Raya’s apartment
to get cigarettes. Defendant was already
outside the apartment. When Delgado and
defendant returned to the apartment, defendant was out of breath and his hand
was bleeding. Ramos checked Delgado’s
white jacket for blood but found none.
Ramos heard sirens on West Capitol Avenue after Delgado and defendant
returned to the apartment. Defendant
took a tooth out of his hand and put the tooth in his wallet.
cigarettes. Delgado said he asked a guy
for a cigarette, the guy “flipped out†and threw the cigarettes at Delgado,
defendant hit the guy first, Delgado also hit the guy, and Delgado and
defendant ran when they saw a passing truck.
When Delgado spoke with Ramos he was in the living room and defendant
was in the living room or at the kitchen table.
Defendant said he punched the victim first and then “started socking
him.†After they heard the sirens,
defendant said “they won’t do nothing about it.
They’re just gonna get him and take him.â€
A
recording of Ramos’s January 2009 statement to police was also played to the
jury. In that statement, Ramos said
Delgado admitted he and defendant hit the victim and Delgado checked the victim
for money but the victim did not have any.
B
We
review a challenge to the admission of evidence pursuant to a hearsay exception
under the deferential abuse of discretion standard of review. (People
v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on another ground in
76, 151; People v. Pirwani (2004) 119
Cal.App.4th 770, 787.) A trial court's
ruling will not be disturbed, and reversal of the judgment is not required,
unless the trial court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest
v. Guerra, supra, 37 Cal.4th at p. 1113; People v. Brown (2003) 31 Cal.4th 518, 540-541 [trial court’s
determination that preliminary facts exist to permit admission of a statement
under an exception to the hearsay rule will not be disturbed if supported by
substantial evidence].)
The
adoptive admission exception to the hearsay rule is based on the proposition
that the failure to deny an accusatory or incriminating statement under certain
circumstances indicates a consciousness of guilt. (People
v. Briggs (1962) 58 Cal.2d 385, 408.)
Evidence Code section 1221 provides that “[e]vidence of a statement
offered against a party is not made inadmissible by the hearsay rule if the
statement is one of which the party, with knowledge of the content thereof, has
by words or other conduct manifested his adoption or his belief in its truth.â€
“In
determining whether a statement is admissible as an adoptive admission, a trial
court must first decide whether there is evidence sufficient to sustain a
finding that: (a) the defendant heard
and understood the statement under circumstances that normally would call for a
response; and (b) by words or conduct, the defendant adopted the statement as
true.†(People v. Davis (2005) 36 Cal.4th 510, 535.) “ ‘To warrant admissibility, it is
sufficient that the evidence supports a reasonable inference that an accusatory
statement was made under circumstances affording a fair opportunity to deny the
accusation; whether defendant’s conduct actually constituted an adoptive
admission becomes a question for the jury to decide.’ †(People
v. Riel (2000) 22 Cal.4th 1153, 1189-1190; 1 Witkin, California Evidence
(5th ed. 2012) Hearsay, § 141, p. 981.)
The
record supports the trial court’s determination that there was sufficient
evidence for the jury to conclude that defendant heard Delgado’s statements to
Ramos and Raya and adopted the statements as true. Raya lived in a small apartment. Ramos and Raya testified that defendant was
in the living room or at the kitchen table and Delgado was in the living room
when Delgado recounted what had happened.
Raya’s kitchen and living room were not separated by a wall, and the
kitchen table was very close to the living room. After Delgado implicated himself and
defendant in the attack on Harpst, defendant did not disagree with Delgado’s
statements. Rather, according to Ramos,
defendant admitted, consistent with Delgado’s statements, that defendant
punched Harpst first and then started “socking†him. Defendant’s response shows that he understood
and agreed with Delgado’s statements about what had occurred on West Capitol
Avenue.
Although
Raya and Ramos gave contradictory accounts about defendant’s location in the
apartment during Delgado’s narrative and whether Ramos and Raya were paying
attention to defendant during Delgado’s statements, it was up to the jury to
decide what portion, if any, of their testimony to believe. (United
States v. Scheffer (1998) 523 U.S. 303, 313 [140 L.Ed.2d 413, 421] [the
jury determines the weight and credibility of witness testimony];
610, 676, fn. 40.) The trial court
instructed the jury that if it concluded that someone made a statement outside
of court that accused defendant of the crime or tended to connect defendant
with the commission of the crime and defendant did not deny it, the jury must
decide whether (1) the statement was made to defendant or made in his presence,
(2) defendant heard and understood the statement, (3) defendant would, under
all the circumstances, naturally have denied the statement if he thought that
it was not true, and (4) defendant could have denied it but did not. The trial court also instructed the jury that
if the jury decided that all of the above requirements had been proven, the
jury may conclude that defendant admitted Delgado’s statements were true; but
if the jury decided the requirements had not been proven, the jury must not
consider Delgado’s statements or defendant’s response to the statements for any
purpose. We presume the jury followed
the trial court’s instruction. (
537.)
The
jury could have concluded from the evidence presented that defendant heard
Delgado’s statements and adopted Delgado’s statements as true. The trial court did not abuse its discretion
in admitting the challenged evidence.
II
Defendant
next contends the trial court violated his Sixth Amendment right to
confrontation when it admitted Ramos’s statement to police that defendant and
Delgado said the Red Nose Pittz gang was “about beating people up . . . .â€
A
Ramos
told the police that Delgado and defendant said the Red Nose Pittz gang “was
about beating people up who talk shit to them or who they see walking down the
street.†When Ramos subsequently
testified that it was Delgado’s father, not Delgado and defendant, who made the
statement, defendant moved to strike the testimony based on hearsay. After listening to the recording of Ramos’s
police interview, the trial court denied defendant’s motion to strike Ramos’s
testimony, concluding that the jury must decide whether Ramos received the
information about the Red Nose Pittz from defendant and Delgado or from
Delgado’s father, given that Ramos provided contradictory statements concerning
the source of her information.
B
The
Attorney General argues defendant forfeited his confrontation clause claim
because he did not assert it at trial.
A
party forfeits an objection to evidence unless he or she timely objects to the
evidence and states the specific ground of the objection raised on appeal. (People
v. Partida (2005) 37 Cal.4th 428, 434-435.)
Although defendant objected to Ramos’s testimony on hearsay grounds
only, at the hearing on in limine motions the trial court granted defendant’s
request that it deem a hearsay objection to include a Sixth Amendment
confrontation clause objection. Thus,
defendant did not forfeit his confrontation clause claim.
Alternatively,
the Attorney General argues that although the trial court erred in admitting
Ramos’s statement to police, the error was harmless beyond a reasonable doubt
in light of the other evidence against defendant. Reviewing defendant’s confrontation clause
claim de novo (People v. Seijas
(2005) 36 Cal.4th 291, 304; People v.
Nelson (2010) 190 Cal.App.4th 1453, 1466), we conclude the trial court did
not err.
The
Sixth Amendment to the United States Constitution guarantees a criminal
defendant’s right to confront those who “bear testimony†against him or
her. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309 [174
L.Ed.2d 314, 320-321].) A witness's
testimony against a defendant is inadmissible unless the witness appears at
trial or, if the witness is unavailable, the defendant had a prior opportunity
to cross-examine the witness. (
When the witness appears at trial and is subject to cross-examination by
the defendant, the confrontation clause places no constraints on the use of the
witness’s prior testimonial statements.
(Crawford v. Washington (2004)
541 U.S. 36, 59, fn. 9 [158 L.Ed.2d 177, 197, fn. 9].)
Defendant’s
confrontation clause challenge lacks merit because Ramos testified at trial and
was subjected to cross-examination by defendant, and because the out-of-court
statement was not testimonial. Regarding
Ramos, defendant “received what the confrontation clause requires: a full opportunity to confront and
cross-examine†her. (
23-24.) Moreover, the out-of-court
statement that Red Nose Pittz gang members are about beating people up was not
testimonial because it was not a formal statement to a government officer and
there was no reason to believe at the time that the conversation would be
available for use at a later trial.
The
confrontation clause addresses “ ‘the specific concern of “[a]n accuser
who makes a formal statement to government officers†because that person “bears
testimony in a sense that a person who makes a casual remark to an acquaintance
does not.†[Citation.]’ †(People
v. Loy (2011) 52 Cal.4th 46, 66 [statement by the victim to a friend is not
testimonial].) There is no evidence that
defendant and Delgado or Delgado’s father made a “formal statement†to Ramos
about what Red Nose Pittz gang members do.
There is also no evidence that the statement responded to questions
designed to prove some past fact for possible use in a criminal prosecution or
that the challenged statement was made in the context of a conversation wherein
Ramos acted in conjunction with law enforcement authorities to gather
evidence. (People v. Cage (2007) 40 Cal.4th 965, 986-988 [statement in
response to question by doctor, asked to provide medical treatment rather than
to gather evidence for law enforcement authorities, was not testimonial];
605 [“it is the ‘involvement of government officers in the production of
testimonial evidence’ that implicates confrontation clause concernsâ€].) Additionally, there is no basis for
concluding that the challenged statement was “ ‘made under circumstances
which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.’ †(Crawford
v. Washington, supra, 541 U.S. at pp. 51-52 [158 L.Ed.2d at p. 193];
Cal.App.4th 830, 835-836, 843 [statements not testimonial where defendants had
no reason to believe their conversation would be available for use at a later
trial because they thought their conversation was secret and they trusted each
other to keep silent].) Nothing in the
record shows that defendant, Delgado or Delgado’s father could reasonably have
believed that Ramos would share any of their confidences with the authorities. The out-of-court statement to Ramos does not
bear the attributes of a “testimonial†statement within the meaning of
36 [158 L.Ed.2d 177].
Defendant
also contends that Ramos’s out-of-court reference to a statement by an
unidentified police officer about Delgado’s brother and that “they†had been
“doing this for a few months now†is testimonial hearsay. But that claim is forfeited because defendant
did not object at trial to the statement by the unidentified officer. (People
v. Partida, supra, 37 Cal.4th at pp. 434-435; People v. Burgener (2003) 29 Cal.4th 833, 869 [objection based on
federal right to confrontation is forfeited by failure to object on this ground
at trial].)
III
Defendant
further asserts that the trial court erred in admitting letters purportedly
written by, or sent to, defendant when he was in custody at the Yolo County
jail, because Bruce Naliboff, who testified about the letters, did not have
sufficient knowledge about the mail collection and distribution procedures at
the jail to authenticate the letters.
The
trial court permitted Naliboff to testify about the content of five letters
intercepted by jail personnel in 2009.
Among other things, the letters refer to the Red Nose Pittz, mention
defendant’s promotion of a person named Weddo to the position of “captain,â€
include defendant’s directions to the recipients about how to conduct
themselves, and describe defendant as “a founder of our establishment.†Defendant claims the admission of the letters
violated his right to a fair trial.
We
review for abuse of discretion the trial court's finding that sufficient
foundational facts were presented to authenticate the writings as letters by,
or to, defendant. (People v. Smith (2009) 179 Cal.App.4th 986, 1001.)
“Authentication
of a writing is required before it may be received in evidence.†(Evid. Code, § 1401, subd. (a).) Authentication means “(a) the introduction of
evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts
by any other means provided by law.â€
(Evid. Code, § 1400.) The trial
court first determines whether there is sufficient evidence for the jury
reasonably to find by a preponderance of the evidence that the writing is what
the proponent claims it to be. (Evid.
Code, § 403, subd. (a); People v.
Marshall (1996) 13 Cal.4th 799, 832-833.)
The preliminary fact of authentication is then subject to
redetermination by the jury. (
693, 708-709; 2 Witkin, Cal. Evidence (5th ed. 2012) Documentary Evidence,
§ 7, pp. 154-156.) The
determination whether sufficient facts have been presented to authenticate a
writing is a matter within the trial court’s discretion. (People
v. Smith, supra, 179 Cal.App.4th at p. 1001.)
A
writing may be authenticated by circumstantial evidence, the content of the
writing, or the location where the writing was obtained. (People
v. Smith, supra, 179 Cal.App.4th at p. 1001.) In People
v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373, sheets of rap lyrics were
authenticated as writings by the defendant based on evidence that the lyrics
were found in the defendant’s bedroom, referred to the defendant's gang, and
identified the composer with the defendant's gang moniker. In People
v. Gibson (2001) 90 Cal.App.4th 371, 383, manuscripts were authenticated as
the defendant's writings based on evidence that the manuscripts were seized
from the defendant’s home and hotel room, they referred to the author using
defendant’s alias, and they described a prostitution enterprise similar to the
one operated by the defendant.
Here,
Naliboff did not know the details of the mail collection and distribution
process at the jail, other than the fact that mail was screened by jail
personnel, and he could not say whether defendant actually wrote the letters
attributed to him. Nonetheless, the
content of the letters, and the manner in which they were obtained, were
sufficient to authenticate them.
Naliboff
was the chief investigator for the Yolo County District Attorney’s Office. He asked jail personnel to forward to him
correspondence sent by and to defendant.
Sergeant Castaneda, the person in charge of security at the jail,
forwarded the letters to Naliboff. The
letters were intercepted at the jail where defendant was in custody, they were
letters addressed to or from defendant at the jail, and the letters purportedly
sent from defendant all appear to be in the same handwriting. There is no evidence that someone other than
defendant would write or receive letters signed by or addressed to defendant at
the jail.
Exhibit
39 is signed “LT,†which witnesses identified as defendant’s moniker. It is addressed to Joe Mandoriao, who
appeared with defendant in a photograph presented at trial without
objection. The letter says defendant was
“loyal to banga†and concludes “forever forward.†The phrases “Loyal T. Banga†and “forever
forward†also appear in exhibit 38.
According to Naliboff, the salutation in exhibit 39 -- “Salutations and
greetings to you, sir, with my utmost love, honor, respect, and loyalty, along
with my utmost embracement†-- is
typical of the salutation defendant used in his letters.
Exhibit
40 is a letter purportedly from Scott (“Luniâ€) Delgado addressed to “LT.â€
Exhibit
41 is a letter addressed to Joe Mandoriao and signed “LT.†The author provides his MySpace username,
which contains the initials “LT.†A
letter to Luni (exhibit 38) instructs him to take pictures of “the pupps†with
members of the “[P]ittz†and to tell “Weddo†that if there are “five different
pupps, he is captain of his pupps and a step closer.†Exhibit 37, a letter addressed to defendant
and signed “Luni,†appears to be a response to exhibit 38. It describes an order from “LT†to gather the
“clique niggaz†and says the recipient should soon receive photographs the
author took the day he received “LT’s†letter.
Additionally, exhibit 37 references “Weddo’s†reaction to receiving a
“rank up,†the increase in rank referenced in exhibit 38. The attachment to exhibit 39, addressed to
“Weddo†from “LT,†also references “Weddo’s†promotion to “captain.â€
Exhibits
37, 39 and 41 refer to defendant’s gang, the Red Nose Pittz.
Based
on the foregoing, there was sufficient circumstantial evidence that the
challenged letters were written by or to defendant while he was housed at the
jail. The trial court did not abuse its
discretion in admitting the letters.
Because we conclude there was no error, we do not address defendant’s
argument regarding prejudice.
IV
Defendant
contends the trial court erred in instructing the jury that a person is
“equally guilty†of a crime whether he or she committed it personally or acted
as an aider and abettor.
name="_ftnref4" title="">[4]
The
prosecution argued that defendant was the direct perpetrator in the attempted
murder count, but added that the jury could also find defendant guilty of
attempted murder as an aider and abettor.
Accordingly, the trial court instructed the jury on aider and abettor
liability in accordance with CALCRIM Nos. 401 and 402 and the former version of
CALCRIM No. 400, which provided in relevant part: “A person may be guilty of a crime in two
ways. One, he or she may have directly
committed the crime. I will call that
person the perpetrator. Two, he or she
may have aided and abetted a perpetrator, who directly committed the
crime. A person is equally guilty of the
crime whether he or she committed it personally or aided and abetted the
perpetrator who committed it.â€
The
Attorney General agrees that the “equally guilty†statement is erroneous and
does not dispute defendant’s claim that the error affected defendant’s
substantial rights. The Attorney General
argues, however, that the error was harmless.
Defendant
did not object to the CALCRIM No. 400 instruction in the trial court. Nonetheless, we will address the merits of
his claim because the claim concerns an asserted misstatement of the law and a
violation of his substantial rights. (§
1259 [permitting appellate review of an instruction even in the absence of an
objection below if the defendant's substantial rights were affected];
1130 [a claim that an instruction is not “ ‘correct in law’ †may be
raised on appeal even in the absence of trial objection].) We conclude, however, that defendant has not
established prejudice.
Defendant
asserts the “equally guilty†statement in former CALCRIM No. 400 was incorrect
because an aider and abettor and a direct perpetrator may have different mental
states and may, therefore, be guilty of different crimes. But pursuant to CALCRIM No. 401, the trial
court correctly instructed the jury on the requisite mental state for aiding
and abetting liability. The trial court
instructed that to prove defendant guilty of a crime based on aiding and
abetting that crime, the prosecution must establish (1) the perpetrator
committed the crime, (2) defendant knew that the perpetrator intended to commit
the crime, (3) before or during the commission of the crime, defendant specifically
intended to aid and abet the perpetrator in committing the crime, and (4)
defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime. The instruction
properly explained the requisite mental state for an aider and abettor (
560; People v. McCoy (2001) 25
Cal.4th 1111, 1117-1118) and we presume the jury understood and followed the
trial court’s instruction. (
852.)
Moreover,
even if the jury rejected the prosecution’s theory that defendant was the
direct perpetrator of the attempted murder, the prosecution convincingly proved
its alternate theory that defendant aided and abetted Delgado in committing the
crimes against Harpst. Raya testified
that, according to Delgado, defendant and Delgado “fought†and robbed a
man. Ramos told police that defendant
had blood on his hands when he returned to Raya’s apartment, and he removed a
tooth from his fist. Ramos testified to
the same at trial. She also said that
defendant admitted attacking the man first and hitting him in the face and
mouth. This testimony by Raya and Ramos
showed that defendant took an active role in the attack against Harpst.
According
to Eid, both attackers beat Harpst “pretty good,†even while Harpst remained on
the ground. After pausing as Eid stopped
his truck, the attackers proceeded to beat Harpst with greater force. The attacker standing over Harpst’s head
delivered rapid blows to Harpst’s head and kicked Harpst, and the second
attacker kicked and stomped on Harpst.
Eid saw the attackers “swarming†around Harpst and “kind of took turnsâ€
hitting and kicking Harpst. Eid
described the attack as “a good beating†and “savage.†It appeared to Eid that both assailants “were
having a good time.†The beating
inflicted by defendant and Delgado was so severe that Harpst suffered
significant brain injury and multiple facial fractures, his eyes were swollen
to the size of golf balls, blood was pouring from his mouth, ear and nose, and
he lost a number of his teeth. The
nature of the attack and the severity of the injuries demonstrate that even if
defendant was not the assailant Eid saw delivering blows to Harpst’s head and
was, therefore, not directly responsible for the severe head injuries Harpst
suffered, defendant is guilty of attempted murder on an aiding and abetting
theory. Substantial evidence shows that
defendant knowingly and intentionally assisted Delgado in the vicious attack on
Harpst, and the assault was carried out in such a manner that a reasonable
person in defendant’s position would have foreseen that attempted murder was a
natural and probable consequence of the assault with great bodily injury.
Moreover,
defendant and Delgado were tried separately. The jury in this case was not asked to
determine Delgado’s criminal culpability and was not informed of the outcome of
Delgado’s trial. Instead, the trial
court instructed the jury: “The evidence
shows that other persons may have been involved in the commission of the crimes
charged against the defendant. There may
be many reasons why someone who appears to have been involved might not be a
codefendant in this particular trial.
You must not speculate as to whether those other persons have been or
will be prosecuted. Your duty is to
decide whether the defendant on trial here committed the crimes charged.†Nothing in the record indicates that the jury
believed defendant’s culpability was necessarily tied to Delgado’s.
To
the extent defendant argues that absent the “equally guilty†instruction the
jury might have convicted him of manslaughter based on the imperfect defense of
another or heat of passion theory, we disagree.
Imperfect
defense of another requires a finding that the defendant, fearful of immediate
and present danger to life or great bodily injury, actually believed in the
immediate need for defense. (
547, 581; People v. Rogers (2006) 39
Cal.4th 826, 882-884 [instruction on imperfect-self-defense theory unwarranted
where there was no substantial evidence that the defendant believed he needed
to defend himself from death or great bodily injury when the victim pointed her
finger at him].) There is no evidence
that Harpst posed an imminent threat of death or great bodily injury to
defendant or Delgado, or that defendant actually feared imminent death or great
bodily injury. Ramos testified that
defendant reportedly thought Harpst would hit, not kill or inflict great bodily
injury upon, Delgado. There was no other
evidence of defendant’s belief in the need to defend Delgado. Harpst was unarmed and Eid never saw Harpst
fight with his attackers. When Eid first
came upon the scene of the attack, Harpst was on his feet and Delgado and
defendant were “swinging†on Harpst, but within seconds, Harpst was on his back
and unmoving in the middle of West Capitol Avenue. Delgado and defendant continued hitting and
kicking Harpst while Harpst remained on the ground. Delgado and defendant stopped their attack on
Harpst only when Eid stopped his truck in front of them. Delgado and defendant left Harpst unconscious
and severely injured. Under these
circumstances, the jury reasonably rejected defendant’s imperfect defense of
another claim. (People v. Hardin (2000) 85 Cal.App.4th 625, 634, fn. 7 [once the
victim had been disarmed and the defendant straddled her while she lay on the
floor, the defendant, who relied on imperfect self-defense, “could no longer
entertain the belief that [the victim] constituted an imminent and deadly peril
to himâ€]; People v. Uriarte (1990)
223 Cal.App.3d 192, 197-198 [imperfect defense of another instruction
unwarranted where, among other things, the defendant continued to shoot after
the victim was incapacitated].)
Moreover,
to find heat of passion for purposes of reducing murder to manslaughter, the
defendant’s reason must have been “ ‘actually obscured as the result of a
strong passion aroused by a “provocation†sufficient to cause an
“ ‘ordinary [person] of average disposition . . . to act rashly
or without due deliberation and reflection, and from this passion rather than
from judgment’ †’ †and the victim must cause the
provocation. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) There is no evidence that Harpst said
anything to, actually laid hands upon, or did anything to threaten Delgado or
defendant. Harpst may have thrown
cigarettes at Delgado, but the jury could not have reasonably concluded that
throwing cigarettes at Delgado was sufficient to provoke an ordinarily reasonable
person to engage in homicidal conduct in a fit of passion.
The
evidence also suggests that the continuation of the attack was not due to heat
of passion. (People v. Moye (2009) 47 Cal.4th 537, 549-550 [heat of passion
requires proof that the defendant acted while under “ ‘the actual
influence of a strong passion’ †induced by provocation].) According to Ramos, Delgado said he and
defendant stopped beating Harpst but defendant went back and hit Harpst some
more. Eid observed that Harpst’s
attackers stopped their attack on Harpst when Eid passed them in his truck, but
after Eid’s truck moved on the attackers proceeded to beat Harpst with greater
force. As the Supreme Court has
observed, “ ‘ “ ‘[t]he process of premeditation and deliberation
does not require any extended period of time.
“The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow
each other with great rapidity and cold, calculated judgment may be arrived at
quickly . . . .†’ †’ †(People
v. Manriquez, supra, 37 Cal.4th at p. 577.)
The pause in the attack on Harpst and the apparent decision to resume
hitting and kicking him with greater vigor was substantial evidence of
deliberation. And as we discuss in part
V, the testimony by the prosecution’s gang expert, Officer Michael Duggins,
further suggests that the violent attack by Delgado and defendant, both Norteño
gang members, was motivated not by heat of passion but instead by a desire to
gain respect for themselves and their gang and to instill fear in the
community. The jury necessarily rejected
defendant’s heat of passion argument by finding true the allegation that the
attempted murder was willful and done with deliberation and premeditation.
Accordingly,
defendant’s CALCRIM No. 400 contention lacks merit.
V
Defendant
claims there is insufficient evidence that he committed the offenses to benefit
a criminal street gang.
On
a claim of insufficiency of the evidence, “we review the entire record in the
light most favorable to the judgment to determine whether it contains
substantial evidence -- that is, evidence that is reasonable, credible, and of
solid value -- from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citation.] We presume every fact
in support of the judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify the
trier of fact's findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.]†(People
v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).) We do not
reweigh evidence or reevaluate the credibility
of witnesses. (Ibid.)
Expert
opinion can be sufficient to support a section 186.22, subdivision (b)(1)
enhancement (Albillar, supra, 51
Cal.4th at p. 63) because the subject matter of the culture and habits of
criminal street gangs is sufficiently beyond common experience that expert
testimony would assist the jury. (
605, 617.) As one appellate court
observed, “ ‘[i]t is difficult to imagine a clearer need for expert
explication than that presented by a subculture in which . . .
mindless retaliation promotes “respect.†’
[Citations.]†(
a hypothetical based on facts shown by the evidence, about whether a particular
crime was committed for a gang purpose.
(People v. Gardeley, supra, 14
Cal.4th at p. 619; People v.
pp. 1041, 1043; People v. Garcia
(2007) 153 Cal.App.4th 1499, 1505-1506, 1512-1514.)
Here,
the jury found true the enhancement allegations that defendant committed
attempted murder, mayhem, attempted robbery, and assault by means of force
likely to produce great bodily injury for the benefit of, at the direction of
or in association with a criminal street gang with the specific intent to
promote, further or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1) (“section
186.22(b)(1)â€).
name="_ftnref5" title="">[5] And expert testimony, coupled with the other
evidence presented, was sufficient to support the gang enhancement findings.
The
prosecution’s gang expert, Officer Duggins, opined that defendant and Delgado
were active Norteño gang members in January 2009. Defendant admitted to West Sacramento law
enforcement authorities in 2008 that he was a Norteño gang member and Delgado
also admitted that he was a Norteño gang member. Defendant does not dispute on appeal that the
Norteño gang is a “criminal street gang†within the meaning of section 186.22,
subdivision (f) and that he and Delgado were active participants in the Norteño
street gang in January 2009.
Duggins
further opined, in response to a hypothetical, that two active Norteño gang
members who viciously assault a victim on West Capitol Avenue and take
cigarettes from the victim by force or fear would have acted with the intent to
promote and further the criminal activities of Norteño gang members and their
actions would have benefitted the gang.
Duggins explained that the location of the hypothetical assault was
significant because West Sacramento had an active Norteño gang presence and
Norteño gang members gain status and respect for themselves and their gang by
committing violent crimes in their neighborhoods. Delgado lived within blocks of where the
attack on Harpst occurred, and the jury was shown photographs of graffiti
associated with the Norteño street gang, the Red Nose Pittz and defendant’s
moniker “LT†on a fence behind Delgado’s apartment complex.
Duggins
told the jury the Norteño street gang’s primary activities were assaults with a
deadly weapon or causing great bodily injury, robberies, car theft, attempted
murder, drug sales and burglaries. He
testified about a 2006 felony robbery and a 2007 vicious assault committed by
Norteño gang members acting together. He
explained that Norteño gang members committed violent crimes in groups of two
or more to gain respect from the community, from fellow Norteños and from rival
gangs. Norteño gang members did this by
means of force, fear and intimidation to benefit the gang. In Duggins’s view, the hypothetical attack
would not only enhance the assailants’ status within the gang but also benefit
the whole gang. Duggins elaborated on
how the hypothetical assault would benefit the Norteño street gang: “Everybody
hears about this crime, and when Norteños do it in association with each other,
people know that they live in that neighborhood. [¶] . . . [¶] It lets everybody know, both rival gang
members and ordinary citizens, that these gang members aren’t afraid to do
stuff like this. They’re not afraid to
assault people for something even so insignificant as cigarettes, and they’re
willing to go to that extreme to gain that reputation and that fear from
society, individuals. [¶]
. . . [¶] [W]hen word gets
around that gang members will do this, witnesses hesitate to come forward, sometimes
even victims won’t come forward. We’ve
heard testimony that sometimes people won’t even stop when they see this going
on. So it allows them to continue doing
this type of thing unimpeded by not only citizens, but it helps law enforcement
not get involved too which helps them just keep doing these crimes over and
over again.†Duggins also told the jury
that when members of one Norteño subset go into a neighborhood claimed by
members of a different Norteño subset, they are more apt to engage in criminal
activity “to show their allegiance to the Norteños, to show they’re willing to
put in this type of work for the gang.â€
Duggins’s testimony adequately explained the connection between the gang
and the defendants’ crimes. (
53-54, 63; People v.
(2009) 178 Cal.App.4th 347, 351, 353.)
According
to Duggins, when gang members commit crimes together they build bonds and give
each other “strength†and “motivation.â€
Moreover, gang members are expected to help each other and when a gang
member does not participate in a crime, he will “be held responsible.â€
Defendant
contends there was no evidence that Delgado and defendant planned to further
their gang’s position in the community or enhance their own status in the gang
when they left Raya’s apartment. But
even if Delgado and defendant did not discuss committing a crime when they were
at Raya’s apartment, Ramos knew something bad would happen because defendant and
Delgado left the apartment together and Ramos was familiar with the activities
of defendant’s gang. Duggins testified
that active Norteño gang members live “that lifestyle all the time. So when they’re out on the street at 3:15 in
the morning, they are Norteño criminal street gang members . . . and
they act as Norteño criminal street gang members.†Defendant and Delgado told Ramos that their
gang was about beating people up who “talk shit to them†or who they see
walking down the street, and defendant and Delgado had “done this before.†What happened to Harpst was consistent with
the testimony by Duggins and Ramos regarding the violent crimes committed by
Norteño and Red Nose Pittz gang members.
Defendant
argues there is no evidence that he or Delgado attempted to inform the Norteños
about the attack; instead, they sought to avoid detection by police. But according to Ramos, defendant was proud
of the tooth that was embedded in his hand as a result of the assault,
apparently keeping the tooth as a trophy.
Delgado and defendant talked to Ramos about what they did. Days after the assault on Harpst, Ramos told
police she heard a lot of stories about the incident. She also described a conversation she had
with a friend relating to the attack.
Raya initially did not want to help police because she did not want to
be labeled a snitch and she worried about her safety and the safety of her
baby. Raya’s concerns supported
Duggins’s opinion that violent crimes by Norteño gang members in West
Sacramento made witnesses fearful of coming forward, thereby helping the gang’s
criminal activities.
The
jury could reasonably infer from the evidence presented that defendant, in
concert with Delgado, acted for the benefit of a criminal
street gang and that defendant intended to further or assist criminal conduct
by a fellow gang member.
DISPOSITION
The
judgment is affirmed.
MAURO , J.
We concur:
RAYE ,
P. J.
NICHOLSON ,
J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] Harpst smoked red-colored Marlboro brand
cigarettes.
