P. v. Hernandez
Filed 6/24/13 P. v. Hernandez CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
LINO F. HERNANDEZ et al.,
Defendants and
Appellants.
2d Crim. No. B229363
(Super. Ct. No.
200800611)
(Ventura
County)
Lino F. Hernandez, Alvino Joe Hernandez, and
Alejandro Salas appeal from the judgments following their convictions by jury
of one murder and three attempted
murders. (Pen. Code, §§ 187, subd.
(a), 189; 664/187, subd. (a).)
name="_ftnref1" title="">[1] The jury convicted Salas of
and Alvino of first degree murder, with a true finding as to a gang special
circumstance allegation.
name="_ftnref2" title="">[2] (§§ 187, subd. (a), 189; 190.2, subd.
(a)(22).) The jury also found true
allegations that appellants' crimes were committed for the benefit of, in
association with, or at the direction of a criminal
street gang (§ 186.22, subd. (b)(1)); a principal personally used a firearm
in the crimes (§ 12022.53, subd. (e)(1)); and Lino personally inflicted great
bodily injury in their commission (§ 12022.7, subd. (a)).
Appellants raise multiple challenges to the
sufficiency of the evidence to support the findings and verdicts: Alvino and Salas challenge the gang
enhancement findings; Alvino and Lino challenge the gang special circumstance
findings; and Salas challenges his second degree murder and attempted murder
convictions. Appellants also contend
that the trial court committed multiple prejudicial instructional and evidentiary
errors that violated their constitutional rights. Alvino claims that the trial court cited
improper factors as justification for imposing consecutive sentences for the
three attempted murders.
name="_ftnref3" title="">[3] We affirm.
BACKGROUND
Lino, Alvino and Salas
are members of Colonia Chiques (Colonia).
Colonia claims a large section of Oxnard as its
territory. Lino, Alvino and Salas were
known as Veneno, Flaco and Barbs, respectively.
They all had Colonia tattoos.
Lino's tattoos included a large star on his neck and chin, in line with
Colonia's use of Dallas Cowboy symbols, and another that said "187 River
Rat," referring to a rival gang, and the Penal Code section for murder.
Oxnard Police Department Sergeant Christopher Williams
testified as the primary prosecution gang expert witness at trial. He worked for the Department for four years,
with more than 200 hours of formal criminal gang training. Williams explained that gang members gain
respect and power in their gang by committing violent crimes. Gangs honor members who are killed "for
their cause" as "fallen soldiers." Colonia was "one of the most
violent" gangs in Ventura County.
As the senior officer in
the gang unit, Williams managed the enforcement of the injunction Oxnard
obtained against Colonia, based on crimes it committed between 1999 and
2003. The injunction prohibits Colonia
members from associating with each other, wearing gang clothing, flashing gang
signs, and drinking or possessing alcohol.
It also subjects them to a 10:00 p.m. curfew. Williams had personally talked with more than
200 gang members, and listened to Colonia members planning crimes and
discussing gang matters while monitoring wiretapped conversations. Williams testified that Colonia's primary
purpose was committing crimes to dominate a large section of Oxnard which it
claimed as its territory. He illustrated
their criminal activity by describing
a small sample of their crimes, including armed robbery, assault with a deadly
weapon, and murder or manslaughter.
name="_ftnref4" title="">[4]
In 2006, Alvino lived
with his family in an apartment building at 2011 North Ventura Road in Oxnard
(2011 building), north of the traditional Colonia territory. Salas and his
family also lived in that building. The murder
and attempted murders occurred in the courtyard of another building on the same
block, at 2045 Ventura Road, where victim Abraham Lopez lived with his brothers
Moises Lopez and Hector Lopez (Lopez building, or Lopez apartment). The 2011 building and the Lopez building are
416 feet apart.
Abraham and Hector
belonged to a tagging group called "DSK," which had about 20
members. DSK stood for "Dark Side
Krew," (or "Don't Stop Krew," "Down Southern
Kalifornia," or "Dark Side Killers"). Moises associated with DSK. Their oldest brother, 29-year-old Octavio
Lopez, lived nearby and often visited the Lopez apartment, but he was not a DSK
member or associate.
DSK was mainly devoted
to "tagging" property with its graffiti. It also defaced other groups' graffiti. DSK sometimes fought against other tagging
groups. Some DSK members owned and
carried weapons.
Colonia
– DSK Conflict History
DSK member Richard
Gonzalez grew up in Colonia territory.
Colonia members once jumped Gonzales, while he sat on his porch, in
retaliation for his tagging in Colonia territory. Colonia members also jumped Moises at
McDonald's when he wore a White Sox baseball cap like those worn by Southside
Chiques, one of Colonia's rival gangs.
Salas, Alvino and other Colonia members drove to the home of DSK Johnny
Rocha and stood outside yelling at him.
Colonia members also gathered outside the Lopez apartment and yelled at
its occupants.
In 2006, Salas, Alvino,
Andy Sanchez (Panda) and other Colonia members regularly congregated at the
Lopez building mailbox area. That made
Hector feel intimidated when he went to get his mail. DSK and Colonia members crossed out each
other's graffiti near the Lopez building.
On May 5, 2006, Gonzalez
went to a party at the Lopez apartment.
During the party, two Colonia members, including Panda, jumped DSK
member Jose Delgadillo (Ohno) in the alley behind the Lopez building. After Gonzalez said, "one on one,"
Panda fought Ohno, while the other Colonia member fought Gonzales. Ohno knocked out Panda's tooth.
Sometime later, before
September 2006, Colonia and DSK arranged for Panda and Ohno to fistfight again,
"to stop problems." Alvino and
Salas accompanied Panda to the alley behind the Lopez building. Panda and Ohno had just started fighting when
two more Colonia members arrived, armed with aluminum baseball bats. Abraham, Moises, Hector and his friend Ralph,
and a teenager were there. Abraham or
Moises yelled something like, "I thought this was supposed to be a
fistfight. You guys bring weapons." Alvino held a knife against the teenager and
said, "Well, grab your own bats."
Hector said, "Let him go."
A Colonia member struck Moises with a bat, which Moises grabbed and
held. Ralph picked up a stick. Things ended when Alvino pushed the teenager toward
Hector.
In early August 2006,
the ongoing conflict with Colonia led Abraham to acquire a .380-caliber handgun
(.380). Gonzalez acquired a .357-caliber
handgun (.357). Hector moved to Arizona
in August 2006, to avoid the escalating Colonia-DSK conflicts.
Labor Day Shootings (September
4, 2006)
September 4, 2006, was
Labor Day and Gonzalez's 21st birthday.
He spent the day shopping with Octavio and Moises. Octavio drove them back to the Lopez building
in the late afternoon. Salas approached
Octavio's car. When Octavio stopped the
car, Salas said he wanted to arrange a fistfight between a Colonia member and
"Johnny." Octavio agreed to
help arrange it. Gonzalez, Moises and
Octavio went to the Lopez apartment, and drank beer.
Moises's girlfriend,
Michele White, drove to the Lopez building at around 6:30 p.m. on September 4,
2006, to retrieve her game console from Moises.
White saw Salas's brother-in-law, Alonzo Hernandez, make a crude gesture
at Moises while she was outside with him.
Salas, Alvino, and Lino then approached White and Moises. Moises called his brothers to warn them that
they were there, and asked them to bring a gun.
Moises and White entered
the courtyard from the alley. Salas,
Alvino, and Lino followed and surrounded them.
(The courtyard was bordered by an alley on the west, the Lopez building
on the south, Ventura Road on the east, and the building at 2051 North Ventura
Road on the north.)
Octavio, Abraham,
Moises, and Gonzalez went downstairs and entered the courtyard. Gonzalez, who was right-handed, carried a
beer in his right hand. He had a gun in
his waistband, under his shirt. Moises
told White to go upstairs. White started
to walk toward Ventura Road but turned back after Lino said, "Where are
you going? It's all right. Nothing's going to happen." White stopped in the northeast section of the
courtyard, just north of the central walkway that led to Ventura Road. The DSK and Colonia members were closer to
the alley, at the west end of the courtyard.
Octavio
and Abraham were in the southwest section of the courtyard, facing Lino and
Alvino, who were a couple of feet north of them. Lino and Alvino each hid a gun beneath his
sweatshirt. Octavio wore shorts, a
t-shirt, and flip-flops. Gonzales was a foot or two behind Octavio and
Abraham. Moises had moved to the
northwest section of the courtyard, east of Alvino and Lino.
Addressing
Octavio, Lino said, "My carnal [brother] wants you to keep his name out of
your fucking mouth." He asked
Octavio, "Who is going to get down [fight]?" Octavio responded that he was willing to
fight, as long as no weapons were used.
Pointing at Lino's sweatshirt (which then covered a semi-automatic TEC-9
"machine gun" with an attached clip), Octavio asked, "What's
that you got there?" Lino pulled
out the TEC-9 and started firing immediately.
Alvino pulled out a nine millimeter Makarov handgun and fired it. Several shots hit Octavio, and he fell.
When
the shooting started, Gonzalez dropped his beer can and started to run
away. Seven shots hit him, and he
fell. Gonzalez then aimed his .357
toward Lino, fired several times, and tossed it in the bushes. White was still in the northeast section of
the courtyard, when a bullet struck her leg.
She fell and lay still.
After
Lino and Alvino started shooting, several bullets hit Abraham. He fell, loaded his .380, and fired it. While Abraham was down, Alvino pistol-whipped
and shot him in the face. Alvino took
Abraham's .380 and ran away with Lino.
Oxnard
Police Department Officer Jeffrey McGreevy was working on September 4,
2006. He heard gunshots at approximately
6:50 p.m. and arrived at the Lopez building minutes later. McGreevy found Octavio, Abraham, White, and
Gonzalez lying in the courtyard. Octavio
was not responsive, and lay face down with blood pooling under his head and
chest. There was a beer can near
Gonzalez. Moises was also there, trying
to help Octavio. When McGreevy asked
Abraham, Moises, Gonzalez, and White if they knew who the shooters were, they
refused to answer or said they did not know.
Police
at the crime scene recovered 21 expended casings from a semi-automatic TEC-9
weapon; an expended casing from a nine millimeter Makarov handgun; two expended
casings and one misfired bullet from a .380 caliber handgun; and six expended
casings from a .357 revolver. They found
a .357 near the spot where McGreevy found Gonzalez.
Several
days later, an officer stopped a car in Oxnard.
Alvino and his family were in the car, which contained a Makarov handgun;
a TEC-9; a nine millimeter magazine with live rounds; and a TEC-9
magazine. Analyses connected those
weapons to evidence from the Lopez courtyard and the shooting victims.
Octavio
died within minutes of receiving four gunshot
wounds. Bullets pierced his carotid
artery and aorta. The surviving victims
required hospitalization and extensive treatment, including surgery. Abraham lost an eye and suffered other wounds
in his chest, shoulder, forearm, face, legs, and buttocks. Two bullets remain in his head. Gonzalez suffered permanent, disabling nerve
damage, lost the ability to move his left foot, and needed a leg brace. Bullets remain in his right shin. White suffered a gunshot wound that pierced an
artery and left numbness in her left leg.
Police
officers interviewed Lino on September 26, 2006, and Salas on October 4,
2006. Both men denied that they were in
Oxnard at the time of the shootings.
Each man claimed he no longer associated with Colonia. Salas denied knowing DSK members Abraham,
Octavio, Moises, Neil Glass, or their fellow DSK member, Johnny Rocha. Salas initially denied knowing Alvino and
Lino, then said he knew them vaguely.
Lino claimed that he had not handled a TEC-9 in several years.
Officers
recovered Abraham's .380 from a Camarillo home where Lino reportedly
lived. Police again interviewed Lino on
February 26, 2007. When they advised him
that the TEC-9 contained his DNA, he did not admit he used it, or offer any
explanation. He did admit he owned the
.380 handgun. Upon learning it had fired
casings recovered from the shooting scene, he said he often loaned it to
others. He refused to identify the
person who returned the gun to him after Labor Day. He still denied any involvement in the
shooting.
Officers re-interviewed
Salas on January 14, 2008. He again
denied that he was in Oxnard on Labor Day and claimed he did not associate with
Colonia. Elizabeth Aragon, the mother of
Anna Hernandez (Salas's girlfriend) initially told officers that Salas was with
her family in Bellflower on Labor Day.
She later disclosed that Salas had not been with them, and that Anna had
pressured her to provide a false alibi to help Salas.
Defense
Case
Alvino
testified on his own behalf. He said it
is hard for him to "see even with the glasses" because he has
"keratoconus in [his] left eye and [an] astigmatism in [his] right
eye." He admitted prior robbery and
weapon possession convictions. Alvino
had belonged to Colonia for many years.
He always carried a firearm when he left home, because he anticipated he
could encounter a rival at any
time, and such encounters can easily erupt into deadly violence.
Alvino
testified about the second Ohno-Panda fistfight. Alvino, Salas, and Panda met Abraham, Moises,
Glass, Gonzalez and Ohno in the alley behind the Lopez building. Just after Panda and Ohno started fighting,
two more Colonia members arrived; one of them held a baseball bat. After a "little ruckus" erupted,
someone from DSK, possibly Gonzalez, said "grab a cuete [gun]." Alvino pulled out a knife, grabbed Ohno, and
threatened to stab him. Alvino did not
see any DSK member with a weapon. Alvino
also testified that on another occasion, he saw DSK members and heard gunshots
"a couple minutes later."
According
to Alvino, on Labor Day, September 4, 2006, he was drinking with Lino, a
Colonia member named Herbie, and a Colonia associate named Abel when Salas
called him. Salas said there was going
to be a fight between a Colonia member and a DSK member, and asked Alvino to
provide "back up." Alvino
assumed Salas would be fighting.
Approximately
90 minutes after receiving Salas's call, Alvino, Lino, and Abel rode with a man
named "Loc" to a home near Salas's apartment. Alvino was carrying the TEC-9 and the
Makarov. Because of recent DSK-Colonia
incidents, Alvino anticipated that DSK members would be armed. They met with Salas and Panda for about 20
minutes in an alley. Alvino gave Lino
the TEC-9.
Carrying
their weapons, Lino and Alvino started walking toward the Lopez building,
followed by Salas and Abel. Alvino and
Lino encountered Moises and White in the alley.
Lino greeted White. Moises and
White moved into the courtyard. Alvino
and Lino followed and "crowded around" them.
Alvino
saw Abraham and Octavio in the courtyard.
Gonzalez came downstairs. He was
drinking a beer. Lino spoke to Octavio,
but Alvino could not hear what they said.
Alvino had been "picking" at his waistband and Octavio asked
what was in his waistband. Alvino then
"got scared" when he saw Gonzalez "reaching toward his
hip." He recalled that during the
last Ohno-Panda fistfight, Gonzalez had said, "grab a cuete [gun]."
Before
Gonzalez or anyone with DSK displayed a firearm, Alvino pulled out his gun, started
shooting, and struck Gonzalez once.
Alvino's gun then jammed and Lino started shooting. Abraham and Gonzales fired their guns. Alvino saw Abraham lying on the ground,
aiming a gun at Lino. Alvino ran to
Abraham, pistol-whipped him, and took his .380.
No
bullets hit Alvino or Lino. They ran
from the courtyard and Loc immediately drove them to their cousin Terry's house
in south Oxnard. Alvino hid the TEC-9
and Makarov under the floorboards of Terry's house. Alvino later retrieved the weapons, with the
intention of disposing of them. He threw away his clothing so the police would not
find it.
The
defense called several witnesses to describe statements made by prosecution
witnesses that were contrary to their trial testimony. Oxnard Police Department Sergeant Terry Burr
testified that Gonzalez previously told officers that the Colonia members
actually were looking for Rocha on the day of the shooting. Because Rocha was not then at the Lopez
apartment, Gonzalez and his friend went downstairs to confront the Colonia
members. On the day of the shooting, White told Burr she had known Abraham for
years, and she had no current relationship with anyone living at the Lopez
apartment.
DISCUSSION
Substantial Evidence Supports the Section 186.22, subdivision
(b)(1)(C) Gang Benefit Enhancement and the section 190.2, subdivision (a)(22)
Special Circumstance
Alvino
and Salas challenge the sufficiency of the evidence supporting the jury's true
finding on the section 186.22, subdivision (b)(1)(C) gang benefit
enhancement. Alvino challenges the
sufficiency of the evidence to support the section 190.2 special circumstance
on the same ground. They claim that the
evidence failed to establish that one of Colonia's primary activities included
the commission of one or more of the crimes enumerated in section 186.22,
subdivision (e). The record belies their
claim.
When considering an attack on the sufficiency
of evidence to support a criminal street gang enhancement, we view the record
in the light most favorable to the judgment to determine whether it contains
substantial evidence from which a reasonable trier of fact could find the
enhancement true beyond a reasonable doubt.
(People v. Albillar (2010) 51
Cal.4th 47, 59-60.)
Section 186.22, subdivision (f) defines a
criminal street gang as "any 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 [specified] paragraphs . . . 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." The "'criminal
street gang'" component of a gang enhancement accordingly "requires
proof of three essential elements."
(People v. Vy (2004) 122
Cal.App.4th 1209, 1222.) The second of
those elements is "that the group has as one of its 'primary activities'
the commission of one or more specified crimes." The specified crimes include assault with a
deadly weapon, robbery, and murder or manslaughter. (§ 186, subd. (e)(1)-(3).)
Expert testimony is admissible to prove the
elements of a criminal street gang enhancement.
(People v. Sengpadychith (2001)
26 Cal.4th 316, 324 (Sengpadychith).) An expert may testify about the size,
composition, or existence of a gang, an individual's membership in a gang, the
primary activities of a specific gang, the motivation for a particular crime,
whether and how a crime was committed to benefit or promote a gang, and gang
rivalries, tattoos, colors or attire. (
Cal.App.4th 644, 654-657, disapproved on another ground in People v. Vang (2011) 52 Cal.4th 1038, 1049-1050.) To establish the nature of a gang's primary
activities, the trier of fact may look to both past and present criminal
activities of the gang, as well as the circumstances of the charged
offense. (Sengpadychith, at pp. 320, 323.)
"Sufficient proof of the gang's primary activities might consist of
evidence that the group's members consistently
and repeatedly have committed criminal activity listed in the gang
statute. Also sufficient might be expert
testimony . . . . " (
In arguing that there is not sufficient
evidence to support the gang benefit enhancement, Salas and Alvino rely on an
inapposite case, In re Alexander L.
(2007) 149 Cal.App.4th 605. In
testimony with respect to the "primary activities" of section 186.22,
subdivision (f), consisted solely of the following: "'I know they've committed quite a few
assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I
know they've been involved with auto thefts, auto/vehicle burglaries, felony
graffiti, [and] narcotic violations.'"
(Id. at p. 611.) The reviewing court found this testimony
insufficient to sustain the gang enhancement because information establishing
its reliability was never elicited from the expert at trial. (Id.
at p. 612.) In contrast, such evidence
was elicited here. Williams gave
detailed examples of Colonia crimes that occurred on specified dates, including
armed robbery, fatal shootings, and assault with a deadly weapon. The record includes certified copies of court
records relating to each case described by him.
Williams personally spoke with more than 200 Colonia members, conducted
several wiretap operations and listened to Colonia members plan crimes and
discuss "gang business."
Lino challenges the sufficiency of the evidence to support
the section 190.2 gang special circumstance.
He claims that because he was in prison between 2004 and 2006, when
Colonia members committed the predicate crimes described by Williams, there is
not substantial evidence that he had actual knowledge of the criminal
activities of other gang members.
name="_ftnref8" title="">[8] We disagree.
In reviewing a claim that insufficient
evidence supports a special circumstance finding, we "must determine
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most
favorable to the judgment below to determine whether it discloses sufficient
evidence . . . . We presume in support of the
judgment the existence of every fact the jury reasonably could deduce from the
evidence. . . . If the circumstances
reasonably justify the findings made by the trier of fact, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding." (People
v. Jennings (2010) 50 Cal.4th 616, 638.)
The special circumstances allegation
"does not require a defendant's subjective knowledge of particular crimes
committed by gang members. . . ." (
475, 488, fn. 13.) Rather, the
prosecution must merely prove the defendant was aware of "the gang's
illegal purposes." (
could infer such awareness in this case.
The jury could look to the circumstances of the charged offense in
evaluating his awareness of the gang's criminal activities. (See Sengapadychith,
supra, 26 Cal.4th at pp. 320, 323.)
Lino made statements reflecting such knowledge on September 26, 2006,
while speaking with detectives. For
example, when a detective mentioned Colonia's conflicts with DSK, Lino made the
following statements: "So I'm why
would the homeys even really, you know, sweat . . . taggers when . . . we have
rival gang members? [¶] And these guys are just, you know--just
taggers. . . . You know, they're really
no threat to us." "Tagging and
gang banging is, you know, . . . two different thing[s]. [¶] . . . [¶] [Taggers] fight with paint. You don't fight, you know, guns, knives,
bricks, cars. . . . [E]verything goes in
gang banging." "I was out
there as a teen running around, you know, puttin' in work."
The Trial Court Acted Within Its Discretion in Denying the
Mistrial Motion
We reject Lino's contention that the trial
court abused its discretion when it denied his motion for a mistrial after a
gang expert witness referred to a carjacking and Lino's prison tattoo. We review the denial of a mistrial motion for
an abuse of discretion. (
128.) The court must grant a mistrial only when a party's chances of receiving
a fair trial have been irreparably damaged.
"'Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.'
[Citation.]" (
573.)
During questioning about Lino's gang
membership, Sergeant Williams testified that "[o]n 9/26 of '06 he told
Detective Young that he got his star tattoos while he was in prison." The prosecutor immediately asked for a
sidebar conference, noted that she and counsel for Lino had specifically
directed Williams not to mention Lino's time in prison, and opined that
Sergeant Williams had mistakenly read that detail from his written notes. Lino's counsel requested a mistrial. The court indicated it would consider it
later. After Williams resumed
testifying, he mentioned that Lino and other gang members were stopped in a
carjacked car. The court immediately
instructed the jury that it could not accept Williams's factual assertions as
true because they were not based on personal knowledge. Lino renewed his mistrial motion. The court denied it, and later denied a new
trial motion that was in part based on the prison tattoo and carjacking
references.
Lino fails to demonstrate that Williams'
brief reference to Lino's prison tattoo and his presence in a carjacked car
deprived him of a fair trial. (
573.) There was no suggestion that he
was in prison for a violent crime, or convicted of carjacking. The court deferred to counsel's preference
against an admonition regarding the prison reference. Lino argues that it was "far less likely
that a juror [would] believe a claim of self-defense from somebody who's been
in prison and involved in carjacking than they would from somebody with no
prior arrest record or prison term."
The expert's references were far less prejudicial than other evidence
presented at trial, including Lino's repeated denials that he was even at the
shooting scene, and statements he made to detectives about his gangbanging.
Evidentiary Claims
Appellants argue that the trial court
committed reversible error and violated their federal constitutional due
process rights by admitting certain evidence.
They claim that the court should have excluded such evidence, among other
reasons, because it was unduly prejudicial under Evidence Code section
352. We disagree.
The trial court has discretion to exclude
such evidence where it is more prejudicial than probative. (Evid. Code, § 352.) Evidence Code section 352 provides that
evidence may be excluded "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." "Prejudice" within the meaning of
Evidence Code section 352 pertains to evidence tending to evoke an emotional
bias against a party, with little relevance to the issues. (People
v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.) A court's determination that evidence is not
made inadmissible by Evidence Code section 352 will be upheld on appeal unless
the trial court "'exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of
justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Salas asserts that the trial court committed
reversible error and violated his federal constitutional due process rights by
admitting irrelevant evidence regarding an affair between his girlfriend, Anna,
and DSK member Neil Glass. He claims
that the court should have excluded that evidence because it was irrelevant,
and unduly prejudicial under Evidence Code section 352. We disagree.
As he did at trial, Salas contends that the
Anna-Glass affair evidence was irrelevant because there was no direct evidence,
or any evidence that showed he knew of the affair. The trial court did not abuse its discretion
in admitting evidence of the affair.
Several witnesses testified about the affair, including White, Gonzalez,
and Hector. Hector, Glass, Anna and her
sister were in a car after midnight on June 4, 2006, when a police officer
stopped them and arrested Glass. Anna
hugged Glass before he was taken away.
Anna spent the night with Glass at the Lopez apartment on one night in
August 2006. Gonzales testified that he
told Abraham and Moises that the Anna-Glass relationship could cause the
Colonia-DSK problems to "escalate."
There was ample circumstantial evidence to support the inference that
Salas knew of the affair. He lived in a
building on the same block as the Lopez building, and spent a lot of time in
the vicinity. He congregated with other
Colonia members at the Lopez building mailbox area, and was often in the
adjacent alley. If the affair evidence
had any prejudicial impact, it was minimal, compared with other evidence
directly linking Salas to Colonia-DSK conflicts. Salas was present and/or participated when
Colonia members yelled outside Rocha's home; when they yelled outside the Lopez
apartment; when Ohno fought against and knocked out Panda's tooth; and during
the second Ohno-Panda fistfight, when armed Colonia members accompanied
Panda. Salas also arranged the fatal
Labor Day fight.
Lino argues that the trial court committed
reversible error by admitting statements he wrote in a letter to Philip
Hernandez, his younger brother. He
argues that evidence should have been excluded as inadmissible character
evidence (Evid. Code, § 1101) and because its prejudicial impact
outweighed its probative value (Evid. Code, § 352). We disagree.
This
contention concerns a letter dated March 7, 2004. The prosecution sought to introduce the
entire letter which contained Lino’s statements regarding his reputation for
violence. The trial court carefully
reviewed the letter and considered argument during multiple in limine
sessions. The prosecution claimed the
letter was relevant to show Lino’s state of mind. Lino’s counsel argued that the letter had
minimal probative value because Lino wrote it two and a half years before he
shot the victims. The court excluded
most of the letter, and admitted only two statements, which follow: “Never back down from a fight no matter who’s
around. Take the first punk and don’t stop.â€
The challenged statements were admissible to
show Lino's state of mind, pursuant to Evidence Code sections 1250, subdivision
(a), and 1252. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1393-1395 [threats
defendant made more than 10 years before shooting a victim were admissible to
show the defendant's state of mind].) The
court did not abuse its discretion in admitting the letter. It weighed the prejudicial impact of the
letter against its probative value and excluded highly prejudicial
statements. (Evid. Code, § 352.) Further, any error associated with the
admission of statements from the letter was harmless under either the
California reasonable probability test or the federal beyond a reasonable doubt
test, in view of the overwhelming evidence against Lino and his
accomplices. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
Gang Expert Testimony
We reject Salas's contention that the trial
court committed prejudicial error by allowing Williams, the gang expert, to
answer hypothetical questions regarding the probable reaction of Colonia
members if they learned of the Anna-Glass affair. He argues that the hypothetical questions
were not based on facts, and the court improperly permitted Williams to impute
knowledge of the affair to Salas. The
expert opinion regarding the affair had little, if any, prejudicial impact,
particularly if the jury concluded Colonia knew nothing about it. Moreover, as we have explained, the jurors
heard far more prejudicial evidence that directly linked Salas to the ongoing
Colonia-DSK conflicts. Thus, any error
associated with the expert opinion regarding the affair was harmless under any
standard of review. (
18, 24; People v. Watson, supra, 46
Cal.23 818, 836.)
Instructional Error Claims
In reviewing claims of instructional error or
ambiguity, we presume "jurors understand and follow instructions" (
139), and "consider the instructions as a whole to determine whether there
is a reasonable likelihood the jury was misled." (People
v. Tate (2010) 49 Cal.4th 635, 696.)
"'Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible
to such interpretation.'
[Citation.]" (
1107, 1111-1112.)
Natural and Probable Consequences Instruction (CALCRIM No.
402)
Appellants make several related arguments
that the trial court erred by instructing the jury with CALCRIM No. 402 that a
defendant could be guilty of murder if he aided and abetted a conspiracy to
commit battery, in which a natural and probable consequence was murder. The court instructed the jury with the
following version of CALCRIM No. 402:
"Before you may decide whether a Defendant is guilty of murder or
attempted murder using the theory that murder or attempted murder was a natural
and probable consequence of conspiracy to commit battery, you must decide
whether he is guilty of conspiracy to commit battery. . . . [I]f the Defendant is guilty of murder or attempted
murder using the theory that murder or attempted murder was a natural and
probable consequence of conspiracy to commit battery, the People must prove
that, one, the Defendant is guilty of conspiracy to commit battery; two, during
the commission of conspiracy to commit battery a co-participant in that
conspiracy to commit battery committed the crime of murder or attempted murder;
and, three, under all the circumstances, a reasonable person in the Defendant's
position would have known that the commission of the murder or attempted murder
was a natural and a probable consequence of the commission of the conspiracy to
commit battery."
Joined by Alvino and Lino, Salas claims that
there is not sufficient evidence to support the use of CALCRIM No. 402 because
they did not conspire to commit a battery.
We reject this claim because it rests on the invalid premise that a
mutual agreement to engage in a fistfight is not a crime. (People
v. Moore (2011) 51 Cal.4th 1104, 1136.)
"Voluntary mutual combat outside the rules of sport is a breach of
the peace, mutual consent is no justification, and both participants are guilty
of criminal assault.
[Citation.]" (
291.)
Appellants also argue that there was no
evidence of any conspiracy to support the use of CALCRIM No. 402 because
Octavio, the murder victim, agreed to fight, and he could not conspire
"against himself and [the] DSK members." This argument also fails. It is a variation of the invalid claim that a
mutual agreement to engage in a fistfight is not a crime. Further, it rests in large part on an
inapposite case, People v. Butts
(1965) 236 Cal.App.2d 817, which did not involve gang crimes. The Butts
court concluded, "Where the defendants do not initiate aggressive action
but are themselves challenged to fight, it is not reasonable to infer such an
agreement or design from the bare fact of their simultaneous acceptance of the
challenge [and that] [p]roof of conspiracy in such case must rest upon some
additional evidence of a jointly conceived plan or design to engage in physical
violence." (Id. at p. 831.) Unlike
victims initiated the fistfight. Salas
did. Substantial evidence supports the
conclusion that Salas was the instigator.
The instant case closely parallels
1050, which expressly declined to follow Butts. In Montes,
the defendant and his gang confronted a member of a rival gang in a restaurant
parking lot. During the confrontation,
the defendant's fellow gang member shot and killed the rival gang member. Two months earlier, at the same restaurant,
the defendant and the rival/victim had been in an altercation. The Montes
court held that attempted murder could be considered a natural and probable
consequence of an assault against a rival gang member, whether or not the
person who committed the assault knew that his fellow gang member had a
weapon. (Id. at p. 1056.) As the
taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is
unaware of these realities, and we see no reason the courts should turn a blind
eye to them. . . . [¶] [T]he circumstances in this case were such
that it was reasonably foreseeable the initial confrontation would quickly
escalate to gunfire." (
As in Montes, there was
sufficient evidence from which the jury could infer it was reasonably
foreseeable that the fistfight would lead to fatal violence. Salas and Alvino had observed or participated
in a recent Colonia-DSK (Panda-Ohno) fistfight in the Lopez alley during which
Colonia members produced weapons (aluminum bats and a knife); Alvino then heard
Gonzalez or another DSK member yell something like "grab a gun." Alvino testified that he always carried a
firearm when leaving his home because he anticipated he could encounter a rival
at any time, and such encounters can easily erupt into deadly violence. He also testified that recent DSK-Colonia
incidents made him anticipate that DSK members would be armed on Labor Day.
Lino and Alvino also claim that the trial
court erred by using an overly broad version of CALCRIM No. 402, to define the
natural and probable consequence theory of guilt. They further claim that such error allowed
the prosecutor to present the following legally erroneous theory to the
jury: The jury could convict all three
defendants of murder and attempted murder under the natural and probable
consequences theory without making the required finding that at least one
defendant perpetrated those crimes under an independent theory of guilt. We disagree.
The court instructed the jury with CALCRIM
No. 402, that certain criteria must be met before it could find that any
defendant was guilty under the natural and probable consequences theory. Those criteria include whether during the
commission of the conspiracy to battery "a co-participant in that conspiracy to commit battery committed the
crime of murder or attempted murder . . . ." (Italics added.) During oral argument, Lino cited
607-608, in claiming his conviction must be reversed because the prosecutor
presented his case to the jury on a legally erroneous theory. Morgan does
not help Lino. In Morgan, the jury convicted the defendant of several crimes,
including kidnapping. The kidnapping
instruction required the jury to find the defendant moved the victim "
distance more than slight or trivial."
(Id. at p. 605.) In closing argument, the prosecutor argued
that if the jury could find that the defendant moved the victim a
"substantial distance, that increased her risk of harm," whether that
was 37 feet, or longer, it could convict him of kidnapping. (Id.
at pp. 608, 609.) However, 37 feet was
"insufficient as a matter of law" (id. at p. 610) to establish kidnapping at the time of the crime,
and the record suggested the jury could have relied on legally insufficient
evidence in convicting the defendant of kidnapping. The court therefore reversed his kidnapping
conviction. (Id. at pp. 610-611.)
Lino and Alvino claim that as in
prosecutor's arguments led the jurors to convict them without making a
requisite finding. We disagree. In Morgan,
the broad language of the kidnapping instruction allowed the jury to conclude
that 37 feet could constitute the requisite distance. Here, the instruction defining the natural
and probable consequences theory contained specific language to prevent the
jury from convicting appellants under that theory without making the requisite
finding that "a co-participant in [the]
conspiracy to commit battery committed
the crime of murder or attempted murder." (Italics added.) The court also instructed the jury that it
"must follow the law as [explained to it by the court and that if it]
believe[d] that the attorneys comments on the law conflict with [the court's]
instructions, [it] must follow [the court's] instructions." It further instructed the jury to "[p]ay
careful attention to all of the instructions and consider them
together." (CALCRIM No. 200.) There is no reasonable likelihood that the
jury convicted all three appellants of murder or attempted murder under the
natural and probable consequences theory without first finding that at least
one of them perpetrated the crimes under an independent theory. (See People
v. Yeoman, supra, 31 Cal.4th at p. 139; People
v. Tate, supra, 49 Cal.4th at p. 696.)
Transferred Self Defense Instruction
Lino contends that the court committed
prejudicial error by failing to instruct the jury with a transferred
self-defense instruction. Alvino and
Salas join in this contention. More
specifically, appellants argue that the court had a sua sponte duty to give the
jury a transferred self-defense instruction so it would understand that if Lino
"unintentionally" shot Octavio, while intentionally firing at
Gonzalez in self defense, the killing was not a crime. We disagree.
A trial court in a criminal case has a duty,
even in the absence of a request, to instruct on general principles of law
closely and openly connected to the evidence.
(People v. Breverman (1998) 19
Cal.4th 142, 149, 154-155.) "The
duty to instruct sua sponte is limited to those "'general principles which
are necessary for the jury's understanding of the case.'" (People
v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) However, in the case of defenses, "'a
sua sponte instructional duty arises "only if it appears that the
defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant's theory of the case."'"
(People v. Russell (2006) 144
Cal.App.4th 1415, 1424.) In this
context, substantial evidence means "evidence sufficient for a reasonable
jury to find in favor of the defendant . . . ." (People
v. Salas (2006) 37 Cal.4th 967, 982.)
The court gave the standard jury instructions
regarding murder (CALCRIM No. 520), degrees of murder (CALCRIM No. 521);
manslaughter (CALCRIM Nos. 570, 571); provocation (CALCRIM Nos. 522, 570) and
self-defense and defense of another (CALCRIM Nos. 505, 571). Taken as a whole, the instructions informed
the jury that if Lino did shoot Octavio while trying to defend himself from
Gonzalez, it would not be a crime.
Specifically, the court instructed the jury as follows with CALCRIM No.
571: "If you conclude the defendant
acted in complete self-defense or defense of another, his action was lawful,
and you must find him not guilty of any crime." The court did not err by failing to instruct
the jury, sua sponte, with a separate transferred self-defense
instruction. (People v. Matthews (1979) 91 Cal.App.3d 1018, 1025.)
Accomplice
Instruction
Alvino
and Lino contend that the trial court committed reversible error by instructing
the jury that his testimony required corroboration in order to prove any
fact. They each claim that this
instructional error interfered with the defense based on his testimony and
violated his constitutional rights.
"When
reviewing ambiguous instructions, we inquire whether the jury was 'reasonably
likely' to have construed them in a manner that violated the defendant's
rights." (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)
Alvino
and Lino acknowledge that the trial court was required to instruct the jury
that a defendant's testimony against an accomplice requires corroboration. They suggest that the court erred by failing
to modify the accomplice instruction to clarify that the "jury should not
require corroboration or view with caution any portion of Alvino's testimony
that was exculpatory." They further
argue that the court made a related error when it instructed the jury as
follows: "Except for the testimony
of Alvino Hernandez, which required supporting evidence, the testimony of only
one witness can prove any fact."
When
read in isolation, the just-quoted instruction might suggest that the jury
could not rely on Alvino’s testimony, whether it was exculpatory or
inculpatory. However, another
instruction clarified that it was Alvino’s inculpatory testimony which
was subject to special scrutiny.
Specifically, the primary accomplice testimony instruction, CALCRIM No.
334 repeatedly informed the jury that it must view accomplice testimony with
caution when it was inculpatory. The
court instructed the jury in relevant part as follows, with CALCRIM No. 334: "Before
you may consider the testimony of Alvino . . . as evidence against . . . Lino .
. . and . . . Salas, you must decide whether Alvino . . . was an accomplice
to the crimes charged against . . . Lino . . . and . . . Salas. [¶] . . . [¶]
If you decide that Alvino . . . was not an accomplice, then supporting evidence
is not required, and you should evaluate his testimony as you would that of any
other witness. If you decide that Alvino . . . was an accomplice, then you may not
convict . . . Lino . . . and . . . Salas
based on his testimony alone. You may use
the testimony of an accomplice to convict . . . Lino. . . and . . . Salas only
if, one, the accomplice's testimony is supported by other evidence . . . ; two,
that supporting evidence is independent of the accomplice's testimony; and,
three, that supporting evidence tends to connect [them] to the commission of
the crime. [¶] . . . The supporting evidence must tend to
connect . . . Lino . . . and . . . Salas
to the commission of the crime. [¶] Any
testimony of an accomplice that tends to incriminate . . . Lino . . . and . . .
Salas should be viewed with caution."
(Italics added.)
We
also reject appellant's contention that the accomplice instruction violated his
federal constitutional rights. Federal courts have rejected a due process
challenge to the giving of accomplice instructions where the accomplice
testified as a defense witness. In
683, the Ninth Circuit Court of Appeals held that a properly formulated accomplice
instruction may be given "whether [an accomplice] testifies for the
prosecution or the defense." (
testimony must be viewed with greater caution than other witnesses did not
violate the defendant's federal constitutional due process rights. (Id.
at pp. 687–688.) "An accomplice's
testimony may be suspect, regardless of whether he testifies for the
prosecution or the defense." (
CALCRIM No. 3472 (Contrived Self-Defense
Instruction)
Lino, joined by Salas and Alvino, further
argues that the trial court committed prejudicial error and violated their
constitutional rights by instructing the jury with CALCRIM No. 3472. More specifically, they claim "that
[Lino] was not the person who started the fight and no mutual combat had yet
occurred," and there was no evidence that appellants provoked a quarrel as
a pretext to use violence, or that they entered "the courtyard intending
to use a firearm." Continuing in
that vein, they contend that the court's instructions allowed jurors to find
appellants entered the courtyard to fistfight the victims, without any right of
self defense, because they instigated the fistfight, and that even if Gonzalez
first reached for a firearm, Lino and Alvino had no right to defend
themselves. We disagree.
The trial court instructed the jury as
follows with CALCRIM No. 3472: "A
person does not have the right to self-defense if he . . . provokes a fight or
quarrel with the intent to create an excuse to use force." The evidence supports the inference that
appellants instigated the fistfight as a pretext for using a firearm. Salas told Octavio he wanted to set up a
fistfight between a Colonia member and "Johnny" of DSK. He asked Alvino to provide "back up." Alvino took a TEC-9 and a Makarov when he and
Alvino went to meet Salas. Alvino,
Salas, and Lino gathered with other Colonia members in the alley for about 20
minutes before going to the Lopez building.
Alvino gave the TEC 9 to Lino. He
and Lino each wore a sweatshirt, and put a gun under it. Alvino testified that he thought Salas would
fight a DSK member, with Alvino and Lino providing back up. However, Alvino and Lino walked in
Lopez building, and Alvino did not know if Salas even entered the
courtyard with them. Appellants also claim that "there is no evidence that
Lino or Alvino knew that Gonzalez and Abraham would arm themselves." The record belies their claim. Alvino testified that he anticipated that DSK
members would be armed.
The court did not err by instructing the jury
with CALCRIM No. 3472. Even if the
evidence had not supported the use of CALCRIM No. 3472, the associated error
would be harmless under any standard of review.
(CALCRIM No.200) The court also
instructed the jury that some of the instructions might not apply under the
facts of the case, and that the jury had to decide the facts, and follow the
instructions that applied to the facts as it found them. If the evidence did not support CALCRIM No.
3472, the jury would simply have ignored it.
(People v. Cross (2008) 45
Cal.4th 58, 67; People v. Watson, supra,
46 Cal.2d at p. 836; Chapman v.
California, supra, 386 U.S. at p. 24.)
Revival of Self Defense Instruction
Lino, joined by Salas and Alvino, contends
that the trial court committed reversible error and violated their federal
constitutional rights by failing to instruct the jury sua sponte that "[a]
defendant who provokes or aggresses with nonlethal violence and is met with lethal
force regains the privilege of self defense." We disagree.
Appellants claim that the failure to instruct
jurors that a defendant can regain the privilege of self defense where he is
met with lethal force in response to provoking the victim with nonlethal
violence was prejudicial. They assert
that a reasonable juror could have found that the defendants entered the Lopez
courtyard "to pursue the agreement to commit battery [but] were
disqualified from asserting a self defense, as initiators and so they were
guilty even if Gonzalez was the first to reach for a firearm." They further argue if the court had
instructed the jurors that the "use
of lethal force by the victim re-establishes a right of self-defense, the jury
would have had to consider whether Gonzalez's act of reaching for a firearm was
the sort of lethal force that re-established [appellants'] right of self
defense."
Assuming without deciding that the trial
court erred by failing to instruct the jury that a defendant could regain his
right of self defense, the error was harmless under any standard of
review. Using CALCRIM No. 505, the court
instructed the jury that a defendant can act in lawful self-defense or defense
of another if "[t]he defendant used no more force than was reasonably
necessary to defend against that danger."
It further instructed the jury that "[t]he defendant is only
entitled to use that amount of force that a reasonable person would believe is
necessary in the same situation. If the
defendant used more force than was reasonable, the killing or attempted
kill[ing] was not justified," and that "[a]defendant is not required
to retreat. He is entitled to stand his
ground and defend himself and if reasonably necessary, to pursue an assailant
until the danger of death or great bodily injury has passed. This is so even if safety could have been
achieved by retreating." (CALCRIM
No. 505.)
"The trial court's instructions assumed
that defendant had not lost [the
right of self defense]." (
702, 711.) The pivotal question for the
jury, if they believed appellants acted in self defense (or imperfect self
defense), was whether appellants exercised that right in a reasonable manner. We are convinced beyond a reasonable doubt
that the jury would conclude appellants did not act in a reasonable
manner. Appellants argued to the jury
that Gonzalez reached for his gun and Octavio's body was blocking bullets
intended for Gonzalez. However, Lino
fired four bullets at Octavio from close range and inflicted the fatal
wounds. Together, he and Alvino fired
more than 20 rounds at armed and unarmed victims, and repeatedly pistol whipped
and shot Abraham in the face as he lay helpless on the ground. The trial court instructed the jury to
determine whether the appellants acted in reasonable self-defense, just as it
would have done if the jury had decided that appellants had regained the right
to defend themselves. It was thus
unnecessary for the court to instruct them that appellants could regain the
right of self defense where the victims used excessive force. (See People
v. Johnson, supra, 180
Cal.App.4th at p. 711 [Where court instructed jury with CALCRIM Nos. 3472 and
505, it was unnecessary to instruct with CALCRIM No. 3471.)
would have refused a request by defense counsel to give such an
instruction. We therefore reject
appellants' contention that trial counsel's failure to request the instruction
constituted the ineffective assistance of counsel.
Substantial Evidence Supports Salas's
Convictions
Salas contends that there is not sufficient
evidence to support his second degree murder and his attempted murder
convictions under the natural and probable consequences theory. We disagree.
Salas bases this contention upon a premise that we rejected in
considering appellants' attack on the natural and probable consequences jury
instruction, i.e., there was not sufficient evidence murder would be the
natural and probable consequence of the intended battery.
Sentencing
Alvino
contends that the trial court cited improper factors to justify its imposition
of consecutive sentences for the three attempted murders. We disagree.
Alvino forfeited these claims by failing to raise them below. (People
v. Scott (1994) 9 Cal.4th 331, 353, 356.)
Waiver aside, it is not reasonably probable that appellant would obtain
a more favorable sentence if the mater were remanded. (People
v. Champion (1995) 9 Cal.4th 879, 934, overruled on other grounds in
860 [upholding admission of gang evidence].)
In
sentencing Alvino, the trial court imposed a 9-year upper term for the count 6
attempted murder, with consecutive middle terms of 2 years 4 months for each of
the count 7 and 8 attempted murders. The
court cited the same justification in each case: the crimes were independent and involved
separate acts of violence. It also cited
additional factors as justifying a high-term sentence. Alvino contends that the factors cited by the
court were improper because he did not "personally" commit multiple
acts of violence. Even if that premise
were valid, he actively aided and abetted Lino, and supplied the weapon and
ammunition he used to fire more than 20 rounds at the victims. Alvino also challenges the consecutive
sentences for all three crimes because, he claims, they were committed with the
same intent and objective. That fact, if
true, is not controlling. (
Cal.App.4th 358, 366 [where a defendant's conduct results in multiple deaths,
"[t]he trial court should have the discretion to mak
| Description | Lino F. Hernandez, Alvino Joe Hernandez, and Alejandro Salas appeal from the judgments following their convictions by jury of one murder and three attempted murders. (Pen. Code, §§ 187, subd. (a), 189; 664/187, subd. (a).)[1] The jury convicted Salas of second degree murder, and convicted Lino and Alvino of first degree murder, with a true finding as to a gang special circumstance allegation.[2] (§§ 187, subd. (a), 189; 190.2, subd. (a)(22).) The jury also found true allegations that appellants' crimes were committed for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)(1)); a principal personally used a firearm in the crimes (§ 12022.53, subd. (e)(1)); and Lino personally inflicted great bodily injury in their commission (§ 12022.7, subd. (a)). Appellants raise multiple challenges to the sufficiency of the evidence to support the findings and verdicts: Alvino and Salas challenge the gang enhancement findings; Alvino and Lino challenge the gang special circumstance findings; and Salas challenges his second degree murder and attempted murder convictions. Appellants also contend that the trial court committed multiple prejudicial instructional and evidentiary errors that violated their constitutional rights. Alvino claims that the trial court cited improper factors as justification for imposing consecutive sentences for the three attempted murders.[3] We affirm. |
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