P. v. Navarro
Filed 7/19/13 P. v. Navarro CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL NAVARRO et al.,
Defendants and Appellants.
B236494
(Los Angeles
County
Super. Ct.
No. NA082399)
APPEALS from judgments of the Superior Court of
County,
Richard
R. Romero, Judge. Affirmed.
Susan K. Shaler, under appointment
by the Court of Appeal, for Defendant and Appellant Daniel Navarro.
Rodger Paul Curnow, under
appointment by the Court of Appeal, for Defendant and Appellant Francisco
Navarro.
Marilee Marshall, under appointment
by the Court of Appeal, for Defendant and Appellant Juan Portillo.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Blythe J. Leszkay and Michael Katz, Deputy Attorneys General,
for Plaintiff and Respondent.
_____________________________
A jury convicted Daniel Navarro, Francisco Navarro, and
Juan Portillo of one count of first
degree murder (count 1; Pen. Code, § 187, subd. (a)),
and two counts of attempted premeditated murder (count 2; §§ 664, 187,
subd. (a)), with findings as to all three counts that the offenses were
committed for the benefit of a criminal
street gang (§ 186.22 (b)(1)(C)).
The trial court sentenced both Francisco Navarro and Juan Portillo to
serve an aggregate term of 55 years to life in the state prison, comprised of a
term of 25 years to life for the murder and consecutive terms of 15 years to
life for the attempted murders. The
court sentenced Daniel Navarro to serve an aggregate term of 58 years to life
in the state prison. He received more
time for prior convictions with a prison term.
All three defendants appeal. We
affirm all three judgments.
FACTS
The Crimes
On July 23,
2003, Javier S., his brother Diego S., their father Alvaro S., their uncle Jose
L., and Pedro V., John E. and Benjamin E. were in a courtyard area of an
apartment building on 6th Street in Long Beach when a group of between 6 and 13
Hispanic males, most with shaved heads and wearing white T-shirts, entered the
area through a gate from a rear alley.
S., and asked him, “Are you the one fucking with my sister?†Javier S. replied that they had the wrong
person. The man punched Javier S. in the
face.
A melee
ensued with victims scattering and running for doors and the front of the
property. More than one of the
assailants yelled, “This is BST,†meaning Barrio
Small Town,
a criminal street gang. During the
attack, Alvaro S.’s abdomen was knifed open, spilling his intestines. Jose L. was stabbed multiple times in the
back, and Pedro V. was stabbed in the chest.
Witnesses saw and or heard two cars race from the area. One of the fleeing cars, registered to the
mother of Juan Aguas (a co-defendant in the trial court, but not a party
to the current appeal), crashed into a parked vehicle, and flipped over. The occupants in the crashed car climbed
from the wreck, and fled. Police and
paramedics responded to the scene.
Alvaro S. died from his wounds.
The Trial
The People
filed an information charging Juan Aguas, Daniel Navarro, Francisco Navarro, and
Juan Portillo with first degree murder (count 1; § 187, subd. (a)), and
two counts of attempted premeditated murder (count 2; §§ 664, 187, subd.
(a)). As to all three counts, the
information alleged that the offense was committed for the benefit of a criminal
street gang. (§ 186.22, subd.
(b)(1)(C).)
title="">[3]
The case
was tried simultaneously before two juries.
One jury, the “red†jury, decided the charges against Juan Aguas. The second jury, the “green†jury, decided
the charges against Daniel Navarro, Francisco Navarro, and Juan Portillo. The appeal before us today arises from trial
to the green jury as to Daniel Navarro, Francisco Navarro, and Juan Portillo.
Javier S.
and Diego S. (the murder victim’s sons), Pedro V. (one of the stabbing
victims), Jose L. (the other stabbing victim), Benjamin E., and John E.
testified about the overall nature of the attack. Javier S. identified Daniel Navarro as one of
men present during the attack, and testified, “I think he was the one with the
knife.†Javier S. did not actually see
anyone stabbing anyone. Further evidence
through Javier S.’s testimony and by testimony from City of Long Beach Police
Department Detectives Todd Johnson and Hugo Cortez showed that Javier S. identified
Daniel Navarro from a photographic line-up in July 2004 (the photo “looked like one of the guys
that was there that night.†Javier S. told Detective Cortez that Daniel
Navarro “had a knife.â€
name="_ftnref5" title="">[5]
Diego S.
did not identify anyone at trial. He
testified: “I’m not sure to observe
them. [sic] We were being
attacked.†Further evidence through
Diego S.’s testimony and testimony from Detectives Johnson and Cortez showed
that, in May 2004, Diego S. circled and pointed to a photograph of Juan Aguas
in a photographic line-up and stated that he was one of the men present during
the attack. In a later conversation in
April 2009, Diego S. confirmed his earlier identification from the photographic
line-up, and said that the man was “the first guy that came into the courtyard
and the one that approached his brother and hit him.â€
John E.
could not identify anyone at trial.
Further evidence through John E.’s testimony and testimony from
Detectives Johnson and Cortez showed that John E. had identified Juan Aguas
from a photographic line-up in May 2004, writing, “That’s maybe him.â€
At the same time, John E. orally said something to the effect that “he
looked like the first guy that came into the courtyard.†The evidence further showed that John E. had
identified Daniel Navarro from a photographic line-up in July 2004,
writing “was there that night.†Benjamin
E. also could not identify anyone at trial; he had identified Daniel Navarro
from a photographic line-up in July 2004, writing “might have been there that
night.†At no point either during or before
trial did Pedro V. or Jose L. identify any of the assailants.
On the day of the attack, police
officers recovered open, unopened and broken beer bottles from the area at and
around the scene of the crimes. At
trial, Lori Schumann, a senior criminalist in the Los Angeles County Sheriff’s
Department Crime Laboratory, testified regarding deoxyribonucleic acid (DNA)
testing on the beer bottles and swabs taken from Daniel Navarro and Francisco
Navarro. Schumann testified there was a
random match possibility between DNA on a broken beer bottle recovered from the
courtyard area and Daniel Navarro of “one in 495 quintillion†or “approximately
7 billion times the current world population.â€
A partial DNA profile with 10 DNA “markers†on the mouth of a whole beer
bottle recovered from the alley behind the courtyard had a random match
possibility to Francisco Navarro of “one in 171 billion†or “24 times the
world’s population.†The partial DNA
profile on the whole bottle was excluded as coming from Daniel Navarro; the
partial DNA profile on the whole bottle did not appear to be a mixture of DNA
from more than one person.
Erick Moran testified after
receiving immunity from the prosecution.
Liliana Aguas (co-defendant Juan Aguas’s sister) was his girlfriend in
July 2003. On July 23, 2003,
Liliana told Moran that “some guys†from the “KAs,†tagging crew, had
“harass[ed] her. They pushed her against
a wall.†Moran knew about the KAs; he
had been in prior disputes with members of the group. He knew the KAs were from Sixth Street in
Long Beach, between Cerritos and Alamitos Streets. After hearing Liliana’s story, Moran went to
a house where co-defendant Juan Portillo (“Wackoâ€) lived, and told Portillo and
co-defendant Juan Aguas what had happened to Liliana.
happened.
Moran, Aguas, and Portillo got in a
car to drive to Sixth Street. It was
Moran’s idea to go there. More people
who had been at Portillo’s house followed them in another car, or possibly
three cars. The cars parked in an alley
near an apartment building. Moran
approached a gate to the apartment building.
Moran stayed in the passageway next to the inside of the gate. “Everybody†in the alley went into the
courtyard. Aguas was the first person to
go into the courtyard. More than six
people followed Aguas inside. Aguas
“[s]ocked some guy,†and then chased him when he ran. The intruders who went in the courtyard “were
fighting and some people were running out through the front.†Moran saw Portillo and Aguas fighting. When asked on cross-examination whether he
saw co-defendants Daniel Navarro and Francisco Navarro get out of any of the
cars and go into the courtyard, Moran testified, “No.†On redirect examination, he testified that he
did remember seeing them. Moran did not
know several people there.
Moran and the attackers left the
scene in separate cars. Moran heard and
saw one of the cars crash. The car
“flipped,†and two to four people got out and ran away. The car belonged to co-defendant Juan Aguas’s
mother.
Moran drove home. Co-defendants Juan Portillo and Juan Aguas
were there. Aguas did not appear to know
that his mother’s car had been wrecked.
Moran drove Aguas and Portillo to Moran’s aunt’s home, and asked her to
drive them to the area where Aguas’s mother’s car was located. While Moran’s aunt was driving them, she
asked what was going on. Portillo said
something to the effect, “You (or we) will read about it†or “You (or we) will
see what happened in the newspaper.â€
Portillo said he “did the stabbing.â€
effect, “What the hell did you do that for?â€
Patricia Sanchez, Erick Moran’s aunt, testified that
Moran, Aguas, and a thinner or “skinny guy†wearing glasses came to her home on
July 24, 2003, at about 12:30 or 12:45 a.m.
She could not identify Aguas or Portillo as the two men. The skinny guy changed his shirt; it was
“[s]tained with blood.†Sanchez drove
Moran and two other men to Sanchez’s mother’s house. As Sanchez was driving, the thinner man said,
“Tomorrow, it’s going to be in the news.â€
Jesus Prieto testified he was a member of the BST gang in
2003. Defendants Daniel Navarro,
Francisco Navarro, Juan Portillo and Juan Aguas were all members of the BST
gang in 2003, and members of the Fourth Street clique. Juan Aguas’s moniker was Joker. Daniel Navarro’s moniker was Pony. Francisco Navarro’s moniker was Mosco. Juan Portillo’s moniker was Wacko. Erick Moran also was a member of the BST
gang; his moniker was King. Prieto
identified a photograph that depicted him, the Navarros, Portillo and
Aguas. Portillo was making a Fourth
Street gang sign in that photo. Prieto
identified another photo of the Navarros, Portillo and Aguas, in which Aguas
was making a Fourth Street gang sign.
Prieto testified that Detectives Cortes and McGuire
interviewed him in 2009.
The interview was recorded and transcribed, and presented at
trial. During the interview, Prieto told
the detectives that he, the Navarros, Portillo and Aguas, and several other
people were at Portillo’s house one night, drinking beers. Prieto stayed there while everyone else
left. At some point Prieto passed
out. The next day or a couple of days
later, Portillo (Wacko) made statements to the effect that “they got in a
fight†or “got down with some gang,†or “taggers.†It was the same night they “crashed the
car.†Portillo said “he fucked some dudes
up.†When he testified at trial, Prieto
said that the police had arrested him, and that they still had him in handcuffs
when he spoke to them. Prieto testified
that when he told the police what Portillo had said about fighting, Prieto had
not been referring to any specific incident, but what their group did in
general back during the time when he hung around with them.
Martha Aguas, co-defendant Juan Aguas’s sister, testified
that in 2003, Aguas “talked to†and was “hanging out once in a while†with the
BST gang. His nickname was Joker. On the day of the charged crimes, Liliana
said “that somebody grabbed her hair and pushed her . . . by a phone booth and
pulled her shirt down.†Martha did not
hear Liliana say that to Erick Moran.
After the crime, Martha went to Sixth Street in a police car, where she
recognized her mother’s car. It was
damaged. Only her mother and
co-defendant Juan Aguas drove the car.
Daniel Navarro and Francisco Navarro
did not present any defense evidence.
Juan Portillo’s sister, Melissa Portillo, testified about a photograph
of Portillo that she said had been taken in June 2003. Melissa testified that Portillo was the
“fattest†he had ever been when the photograph was taken.
On July 20, 2011, the jury returned
verdicts finding Daniel Navarro, Francisco Navarro, and Juan Portillo guilty as
charged. The trial court later sentenced
them as noted at the outset of this opinion.
They filed timely notices of appeal.
DISCUSSION
Juan Portillo’s Appeal
I. Accomplice Testimony
The trial
court instructed the jury pursuant to CALCRIM No. 334, that before it could
consider Moran’s testimony it had to decide if he was an accomplice. The jury was further informed that if Moran
were found to be an accomplice, his testimony must be corroborated and viewed
with caution. Portillo contends the
trial court erred by failing to instruct the jurors that Moran was an
accomplice as a matter of law as set forth in CALCRIM No. 335. Portillo argues that Moran was an accomplice
as a matter of law under the prosecution’s “natural and probable consequencesâ€
theory of criminal liability. Portillo
argues that the difference between the given CALCRIM No. 334 and the ungiven
CALCRIM No. 335 requires that his convictions be reversed. We disagree.
A conviction cannot be based on the testimony of an accomplice
unless it has been corroborated by other evidence tending to connect the
defendant to the commission of the offense.
(§ 1111.) An accomplice is
one who is subject to prosecution for the identical offense charged against the
defendant. (Ibid.) Whether a
person is an accomplice is a question of fact for the jury unless the evidence
and the inferences to be drawn from the evidence are clear and undisputed, in
which case the trial court can decide as a matter of law whether a person was
or was not an accomplice. (
Cal.4th 1, 103; People v. Carrington
(2009) 47 Cal.4th 145, 191; People v.
Williams (1997) 16 Cal.4th 635, 679.)
Evidence
showing that a person was present at the scene of a crime, or drove a defendant
to the scene of a crime, or observed the crime being committed, does not,
standing alone, constitute sufficient evidence to establish that the person was
an accomplice. (People v. Sully (1991) 53 Cal.3d 1195, 1228.) Nor does evidence showing that a person had
knowledge of an impending crime necessarily make the person an accomplice. (People
v. Lewis (2001) 26 Cal.4th 334, 369.)
An accomplice for purposes of giving an accomplice testimony instruction
means the person was a co-principal or an aider and abettor—one who “actually
knows and shares the full extent of
the perpetrator’s specific criminal intent and actively promotes, encourages or
assists the perpetrator with the intent and purpose of advancing the
perpetrator’s successful commission of the target offense.†(People
v. Snyder (2003) 112 Cal.App.4th 1200, 1220 (Snyder).) In the context of
the natural and probable consequences theory of criminal liability, an aider
and abettor, and thus an accomplice for purposes of an accomplice testimony
instruction, “‘is guilty not only of the offense he intended to facilitate or
encourage, but also of any reasonably foreseeable offense committed by the
person he aids and abets.’†(
Cal.4th at pp. 106-107.) It was
Portillo’s burden to establish by a preponderance of the evidence that Moran
was an accomplice. (Snyder, at p. 1219.)
In the
current case, a reasonable
juror could have concluded that Moran
had the intent to assault the man who harassed his girlfriend or the intent to
assist Aguas in assaulting the man. And
a reasonable juror could have
concluded that Moran was liable for the murder and attempted murders that
ensued from an intended assault because those crimes were a natural and
probable consequence of the assault.
However, the problem with Portillo’s argument is that a reasonable juror
was not required
to make all or any of
these findings because the evidence was not clear and undisputed. For this reason, the trial court was not
required to instruct the jury Moran was an accomplice as a matter of law.
First,
there is conflicting evidence about whether Moran was either a perpetrator or
an aider and abettor. Moran testified
that he did not see anyone with a knife before his group entered the courtyard
where the crimes occurred. He testified
that he was “shocked†when he heard there had been a stabbing. He testified he did not bring a knife with
him, and did not see Juan Aguas bring a knife.
Moran testified he had not talked to Aguas about “killing these guysâ€
before the incident. He testified he did
not know, prior to the attack that someone was going to bring a knife. He testified he had thought that Aguas and
the others were just going to “confront†the guy who harassed Aguas’s sister,
which did not mean an assault or a killing.
We acknowledge the evidence discussed in Portillo’s opening brief on
appeal tending to show that Moran was an accomplice. But it was the jury’s task to weigh the conflicting
evidence, and to decide whether Moran had harbored the intent needed to make
him an aiding and abetting accomplice.
Second,
a reasonable juror could have determined, based “on the specific
circum-stances†of the current case, that the charged murder and attempted
murders were not, in fact, a natural and probable consequence of a planned
assault. (People v. Medina
(2009) 46
Cal.4th 913, 920.) As our Supreme Court
has explained in finding that substantial
evidence supported a jury’s guilty verdict in a natural and probable
consequences case involving a murder ensuing from an assault: “In examining the whole record in the light
most favorable to the prosecution, we conclude that a rational trier of fact could have found that the shooting of the victim was a
reasonably foreseeable consequence of the gang assault in this case.†(Id.
at p. 922, italics added.) But the cases
cited in the opening briefs on appeal here do not support the proposition that
a reasonable juror must always make a
factual finding that a murder is a natural consequence of a gang assault. Portillo argues that Medina and
other cases such as People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11, People v. Montes (1999) 74 Cal.App.4th 1050, 1053, 1056,
and People
v. Olguin (1994) 31
Cal.App.4th 1355, 1376, support the proposition that the trial court here was required
to instruct the jury that Moran was an accomplice as a matter of law. We read the cases differently. Those cases support the proposition that a
jury’s finding there was a factual nexus between a gang assault and a murder
will be sustained on appeal against an insufficiency of the evidence
claim. They do not support the
proposition that a person who has some connection to a gang assault that led to
a murder is, for purposes of jury instructions, always an accomplice.
Because
it was the jury’s task to decide what Moran intended or did, if anything,
regarding the initial assault, and whether the murder and attempted murders
were then a natural and probable consequences of the assault, the trial court
correctly chose not to instruct the jury that Moran was an accomplice as a
matter of law. The jury was free to
decide that Moran was an accomplice under the instruction given, CALCRIM No.
334, and we have not been persuaded by the arguments on appeal that the more
focused instruction in CALCRIM No. 335 was required.
Lastly,
even assuming the trial court erred in instructing with CALCRIM No. 334 instead
of CALCRIM No. 335, we will not reverse Portillo’s convictions because we find
the error harmless no matter what standard of review is employed. (Compare People
v. Watson (1956) 46 Cal.2d 818, 836 and Chapman
v. California (1967) 386 U.S. 18, 24.)
Portillo’s opening brief on appeal does not offer an explanation of how
instructing with CALCRIM No. 334 rather than CALCRIM No. 335 adversely affected
him at trial. He seems to assume that,
given CALCRIM No. 335, the jury would have (1) rejected Moran’s testimony
in its entirety, and (2) without Moran’s testimony, would not have convicted
Portillo. We do not come to the same
conclusion. The evidence against
Portillo consisted of more than Moran’s testimony. There was evidence from other sources that Portillo admitted “they got
down†with some other gang members or taggers, and that he (Portillo) “fucked
some dudes up.â€
Further,
under the accomplice instruction given, the
jurors were told that if they found Moran was an accomplice, his testimony
needed to be supported by other evidence, and his testimony should be viewed
with caution. The instruction is based
in part on the rule of law that a conviction cannot be based on an accomplice’s
testimony unless it has been corroborated by other evidence tending to connect
the defendant to the commission of the offense.
(§ 1111.) It is well-settled
that a trial court has a duty to instruct sua sponte on the law regarding
accomplice testimony, including the need for corroboration, when the evidence
at trial is sufficient to warrant the conclusion upon the part of the jury that
a witness implicating a defendant was an accomplice. (See, e.g., People v. Zapien (1993) 4 Cal.4th 929, 982.) It is also well-settled that a trial court’s
failure to instruct on the law regarding accomplice
where the trial record otherwise discloses sufficient evidence corroborating
the defendant’s guilt. (
The quantum of corroborating evidence need only be slight, and need not
itself establish be sufficient to establish every element of the charged
offense. (Ibid.) We have read nothing
in the briefs on appeal to persuade that an error in giving CALCRIM No. 334
over CALCRIM No. 335 may not be reviewed under a similar corroborated-evidence
standard of harmless error. If a trial
court’s error in failing to give any accomplice testimony may be reviewed for
harmless error, then it would seem to us that an error in giving one accomplice
instruction as opposed to another also may be reviewed for harmless error.
In the current case, we see sufficient corroborating
evidence to lead us to conclude that any error in giving CALCRIM No. 334
instead of CALCRIM No. 335 was harmless.
the scene of the charged offenses, and showed that Portillo admitted he stabbed
a person or persons. Moran testified that he
drove with others, in two cars, to the scene of the crimes. These facts were corroborated by other
witnesses. Patricia Sanchez testified
Moran, Aguas and a “skinny guy†with glasses showed up at her home early on the
morning of July 24, 2003, and that the skinny guy’s shirt was stained with
blood. Moran testified that he, Juan
Aguas and the others went to the scene of the crime to confront someone who
harassed Aguas’s sister. The victims
testified that just before the crimes an assailant asked Javier S. whether he
was the one who had been harassing the assailant’s sister.
Moran testified about the cars
fleeing the scene, and that one of the cars crashed. These facts were corroborated by other
witnesses and the objective proof that an Aguas’ mother’s car was involved in
accident. Moran’s testimony that
Portillo was present at the scene, and admitted to doing the stabbing, was
corroborated by Jesus Prieto who told detectives in 2009 that Portillo admitted
he “fucked some dudes up.†We are
satisfied that Moran’s “accomplice†testimony was sufficiently corroborated to alleviate
any error in giving CALCRIM No.
334. Portillo’s trial counsel argued
that the case against Portillo was built on a tripod of liars, namely Moran,
Prieto and Sanchez. In convicting
Portillo, and applying the usual rules of appeal, we find the jury must have
believed their testimony, at least to the extent it showed Portillo
participated in the attack. Portillo’s
credibility assertions about the evidence do not mean that Moran’s testimony
was not corroborated.
II. Burden of Proof
Portillo also contends his convictions must be reversed
because CALCRIM No. 334 suggested that that the jurors needed to find Moran a
direct aider and abettor to the murder and attempted murders in order to find
Moran was an accomplice. Portillo argues
the trial court should have added language to CALCRIM No. 334 sua sponte to
clarify that a person may be found to be an accomplice if he intends to aid and
abet, and did aid and abet, an assault where an ensuing murder was the natural
and probable consequent of the assault.
Portillo argues “a properly instructed jury would have found Moran an
accomplice[,]†distrusted his testimony,
and had reasonable doubt about Portillo’s guilt. Again, we disagree.
First,
Portillo forfeited his claim of error on appeal regarding CALCRIM No. 334
because he did not request amplification of the standard instruction. When the trial court gives a standard
accomplice instruction, without objection, a defendant cannot complain on
appeal that the instruction was too general or incomplete. (People
v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) Portillo’s reliance on People v. Williams (1988) 45 Cal.3d 1268 and similar cases (see,
e.g., People v. Easley (1983) 34
Cal.3d 858, 875; People v. Trevino
(1988) 200 Cal.App.3d 874, 877; People v.
Williams (1971) 22 Cal.App.3d 34, 57) for a different rule is not
persuasive. The cases cited by Portillo
support the principle that a failure to object to an instruction at trial will
not result in a forfeiture of a claim of instructional error on appeal where an
instruction wrongly stated the law, and the defendant’s substantial rights were
affected. That is not what happened
here. CALCRIM No. 334 correctly stated
the law governing accomplice testimony; Portillo just wanted the instruction
modified.
Even if
Portillo’s instructional claim were not forfeited, we would still find no error
in the giving of CALCRIM No. 334. On
appeal, we examine a challenged jury instruction in the context of the
instructions as a whole, and in light of the trial record, to determine whether
it is reasonably likely the jury understood the challenged instruction in the
way the defendant asserts. (See
495, 525-526.) We also presume on
appeal that jurors are able to understand and correlate all of the instructions
given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
The trial
court instructed on accomplice testimony, and on the natural and probable
consequences theory of criminal liability.
It is true that the literal text of the accomplice testimony instruction
did not incorporate by direct reference the natural and probable consequences
theory of criminal liability. However,
we see nothing in the record to support Portillo’s position that the jury would
not have understood that Moran could be an accomplice unless it found he
directly aided and abetted the murder and attempted murders. The basis of the prosecution’s case was the
natural and probable consequences doctrine as to all three defendants. The jury knew that Moran testified under a
grant of immunity. The defense lawyers,
including Portillo’s own counsel, challenged Moran’s credibility on the basis
that he had been involved. As Portillo’s
counsel argued to the jury: “[Moran]
started all of this. It’s because of him
that the victim is dead. . . .
He went over there to kick some ass, and it got out of hand.†We are amply satisfied the jury understood
that the natural and probable consequences applied to all three defendants, and
that it could be applied to Moran as well in determining whether he was an
accomplice.
Assuming
there was error in giving CALCRIM No. 334 in the form it was given, we find no
prejudice under any standard of review.
(Compare
836 and Chapman v. California, supra,
386 U.S. at p. 24.) On a state law
level, the lack of an instruction on the natural and probable consequences
theory as it may relate to an accomplice is not prejudicial to the defendant if
the accomplice’s testimony is sufficiently corroborated by independent evidence
of the defendant’s guilt. (See
568.) As discussed above, we find
Moran’s testimony was sufficiently corroborated.
From a federal constitutional
perspective, “not every ambiguity, inconsistency, or deficiency in a jury
instruction rises to the level of a due process violation. The question is ‘“whether the ailing
instructionâ€â€™ so infected the entire trial that the resulting conviction
violates due process.â€â€™ [Citation.] ‘“A single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context of the
overall charge.â€â€™ [Citation.]
If the charge as a whole is ambiguous, the question is whether there is
a ‘“reasonable likelihood that the jury has applied the challenged instruction
in a way†that violate[d the defendant’s constitutional rights].’ [Citation.]â€
(Middleton v. McNeil (2004)
541 U.S. 433, 437; see also People v.
Huggins (2006) 38 Cal.4th 175, 192.)
We see no such likelihood here. The accomplice testimony instructions given
concerned only the credibility of a potential accomplice, it did not address
the prosecution’s burden to prove guilt beyond a reasonable doubt. The credibility of witnesses was addressed by
other instructions. Portillo’s argument
that the jurors must have found he was not an accomplice finds no support in
the record; the jurors may well have found him an accomplice and still believed
his testimony. That was within their
prerogative as the trier of fact.
Portillo’s argument that if the
jurors found him to be an accomplice then they would not have believed his
testimony also finds no support in the record.
The jurors knew that Moran had involvement in the events on the day of
the crimes, and knew Moran’s credibility was at issue. In convicting Portillo, and in applying the
usual rules of review on appeal, it must be accepted that the jurors resolved
any credibility issue by believing Moran.
We are not persuaded that this resulted from giving CALCRIM No. 334 in
the form in which it was given.
Finally,
Portillo’s argument that he received ineffective assistance of counsel by the
failure of his trial counsel to request the amplifying language he proffers on
appeal is defeated by our conclusions that there was no error and no prejudice
from any error. Specifically, in the
event there was no instructional error, Portillo’s trial counsel did not act
below that of a reasonably competent attorney in failing to seek clarification
of the instruction. In the event an
error occurred, it did not contribute to Portillo’s conviction and there was no
prejudice from counsel’s inaction within the meaning of the ineffective
assistance of counsel cases. (See, e.g.,
People v. Farnam (2002) 28 Cal.4th
107, 148; and see also Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694.)
III. Joinder
Portillo’s joinder in arguments advanced by his
co-defendants and co-appellants will be addressed below as presented.
I. Sufficiency of the
Evidence –– The Substantive Offenses
Francisco Navarro contends all of his convictions must be
reversed because they are not supported by substantial evidence.
Our role in
determining the sufficiency of the evidence is limited. We review “‘the entire record in the light
most favorable to the prosecution to determine whether it contains evidence
that is reasonable, credible, and of solid value, from which a rational trier
of fact could find the defendant guilty beyond a reasonable doubt.’†(People
v. Tafoya (2007) 42 Cal.4th 147, 170.)
We do not reweigh the evidence or redetermine the credibility of the
witnesses (People v. Ochoa (1993) 6
Cal.4th 1199, 1206), and “[w]e draw all reasonable inferences in support of the
judgment.†(People v. Wader (1993) 5 Cal.4th 610, 640.) “If the circumstances reasonably justify the
[finder of fact’s] findings, reversal is not warranted merely because the
circumstances might also be reasonably reconciled with a contrary finding. [Citations.]
The test on appeal is whether there is substantial evidence to support
the conclusion of the trier of fact; it is not whether guilt is established
beyond a reasonable doubt.
[Citation.]†(
755.)
Francisco
argues “there was no evidence . . . that [he]
participated in these crimes in any way.â€
He acknowledges there is evidence showing he was an active member of the
BST gang at the time of the crimes, that he was at co-defendant Portillo’s home
before the crimes, and that he is the brother of co-defendant Daniel
Navarro. But, argues Francisco, the
absence of evidence showing that he
did anything during the attack in the courtyard demonstrates that he was found
guilty merely by association. Francisco
admits that a beer bottle was recovered near the courtyard crime scene, and
that a partial DNA reference sample from it was matched to him. However, he claims the DNA match does not
show he brought the bottle there, threw it, or otherwise used it in the
incident since it was unbroken and found “across the alley from the entryway to
the courtyard.†We find the evidence
sufficient to sustain Francisco’s convictions.
Francisco
was a member of the BST gang, and that he was with his fellow members of that
gang immediately before they went to the scene of the murder to avenge a gang
member’s sister who had been harassed earlier in the day. Francisco’s DNA on a beer bottle found there
supports the jury’s conclusion that he went to the area of the attack and was
in the alley. Moran testified that two
or more cars stopped in the alley and the occupants in the cars got out. Moran said he went to a gate, and “then [he]
seen [sic] everybody just running inside and fighting and everybody just run back outside.â€
(Italics added.) After being
asked a questions about the cars, the people getting out of the cars, and the
gate, the prosecutor asked: Isn’t it
true that everybody went into the
courtyard who had pulled into the alley?â€
(Italics added.) Moran
answered: “Yeah.†Based on this evidence, the jury could
reasonably conclude Francisco was at least an aider and abettor to the attack.
Francisco
counters that Moran did not expressly identify him as one of the
attackers. Further, that on
cross-examination, Moran testified he did not see Francisco at the scene. We agree that is the state of the
evidence. Nevertheless, the standard of
review dictates we examine the evidence in a light most favorable to the
prosecution. In doing so, we find
the circumstantial evidence of Francisco’s participation sufficient to support
his conviction. Francisco also proffers
that it is possible someone else may have carried the beer bottle to the
area. Even assuming the possibility
existed, the jury reasonably could have found otherwise. Moran’s testimony, Francisco’s involvement
with the gang members immediately preceding the crime, the presence of the beer
bottle with his DNA at the scene and that all persons present went inside the
gate and all participated in the attack is sufficient to support the jury’s
finding that Francisco entered the courtyard and joined the fray, and did so as
part of an orchestrated incident.
name="_ftnref13" title="">[13]
II. Juror Information
Francisco
next contends the trial court abused its discretion in denying his post-trial
petition to disclose juror information, and or in failing to conduct an
evidentiary hearing on the issue of disclosing juror information. We find no abuse of discretion.
A criminal defendant has a federal
and state constitutional right to be tried by an impartial jury. (U.S. Const. Amends. VI, XIV; Cal Const.,
art. I sec. 1.) In this state, a
defendant’s right to a trial by an impartial jury is protected in some measure
by Code of Civil Procedure section 237.
Under Code of Civil Procedure, subdivision (a)(2), upon the jury’s
verdict in a criminal case, the trial court’s record of personal juror
identifying information of trial jurors “shall be sealed until further order of
the court as provided by this section.â€
But thereafter, under Code of Civil Procedure section 237, subdivision
(b), a defendant may file a petition for access to the juror records. The petition must be supported by a
declaration setting forth facts sufficient to establish “good cause for the
release of the juror’s personal identifying information.†Code of Civil Procedure section 206,
subdivision (g), provides that juror information may be obtained pursuant to
Code of Civil Procedure section 237 as “necessary for the [defense] to
communicate with jurors for the purpose of developing a motion for new trial or
any other lawful purpose.â€
A defendant may demonstrate good cause to obtain juror
information by making a showing that is sufficient “‘to support a reasonable
belief that jury misconduct occurred.’â€
(People v. Jones (1998) 17 Cal.4th 279, 317.) The alleged misconduct must be “‘of such a
character as is likely to have influenced the verdict improperly.’†(People v. Jefflo (1998) 63
Cal.App.4th 1314, 1322.)
The trial court may conduct an evidentiary hearing to
determine the truth of an allegation of juror misconduct. (People v. Hedgecock (1990) 51 Cal.3d
395, 415-416; People v. Hayes (1999)
21 Cal.4th 1211, 1255.) Such a hearing
is appropriate when a defendant has presented the court with evidence
demonstrating a strong possibility that prejudicial misconduct took place. Though the defendant is not entitled to a
hearing as a matter of right, one should be held when needed to resolve
material, disputed issues of fact associated with a claim of juror misconduct. (People v. Hedgecock, supra, 51 Cal.3d
at pp. 415-416; People v. Hayes, supra, 21
Cal.4th at p. 1255.)
Denial of an evidentiary hearing on a petition is
reviewed for abuse of discretion (People v. Hedgecock, supra, 51 Cal.3d
at pp. 415-416; People v. Hayes, supra, 21
Cal.4th at p. 1255) as is the denial of a petition for disclosure of juror
personal information. (People v.
Carrasco (2008) 163 Cal.App.4th 978, 991; People v. Santos (2007)
147 Cal.App.4th 965, 978.)
Francisco contends the trial court abused its discretion
because he made a showing of good cause “to believe that jury misconduct
occurred.†He argues that the
possibility of jury misconduct was shown by his trial counsel’s declaration in
support of the petition for disclosure of juror information, and by his
counsel’s statements in open court. This
showing established in effect: (1)
jurors had talked to counsel after trial, and commented they thought he did a
good job, but they felt compelled to convict because there had been “a lot of
evidence in the case as a whole;†and (2) when asked by counsel what they saw
as the evidence specifically against Francisco, the jurors could not
specifically point to such evidence.
Francisco essentially argues his counsel showed possible jury misconduct
by showing the jurors may have convicted him without evidence of his specific
guilt and thus may have violated their oaths and the trial court’s instructions
to evaluate the evidence of guilt as to each of the defendants separately.
We see no abuse of discretion in
denying the petition for disclosure of the jurors’ personal information because
we see showing of possible juror misconduct.
The jurors were not required to give Francisco’s trial counsel an
articulate and detailed explanation for their verdicts against Francisco. The jurors’ vague and polite post-trial
statements to Francisco’s trial counsel here are not evidence of juror
misconduct. Generally speaking, juror
misconduct refers to any conduct by a juror that calls into question the
fairness of the jury’s verdict. The
following circumstances are illustrative of juror misconduct: (1) receiving evidence from outside the
trial; (2) talking about the case with persons outside of the trial; (3)
separate discussion among jurors about the case outside of deliberations; (4)
rendering a chance verdict; (5) inattentiveness at trial; and
(6) concealing bias during voir dire.
(See 6 Witkin and Epstein, California Criminal Law (4th ed. 2012)
Criminal Judgment, § 117, pp. 160-162.)
Here, the jurors’ comments to Francisco’s trial counsel do not show
conduct of such a nature as to call into question their fairness. If the jurors “got the case wrong,†that is a
proper subject for Francisco’s argument challenging the sufficiency of the
evidence. But he did not make a showing
of conduct that supports a reasonable belief that juror misconduct.
III. Sufficiency of the Evidence –– The Gang
Allegations
Francisco
contends the gang allegations must be reversed because none is supported by
co-appellant Daniel Navarro with respect to this issue, and joins Daniel
Navarro’s briefing. (See Cal. Rules of
Court, rule 8.200(a)(5).) We address and
reject Daniel Navarro’s argument that the evidence does not support the gang
benefit findings below. For the same
reasons explained below in addressing Daniel Navarro’s appeal, we find
substantial evidence supports the gang benefit findings attached to Francisco’s
convictions.
IV. Accomplice Testimony
For the
reasons explained above in addressing co-defendant Juan Portillo’s appeal, we
reject Francisco’s contentions that the trial court erred in any manner when it
instructed the jury with CALCRIM No. 334 and not CALCRIM No. 335, as to the
testimony of prosecution witness Erick Moran.
We found any error harmless in Portillo’s appeal and the reasons
underlying those findings apply equally to Francisco.
I. Sufficiency of the
Evidence –– The Gang Enhancements
Daniel Navarro contends the gang allegations must be
reversed because none is supported by substantial evidence.
trial evidence showing that the BST gang’s “primary activities†included
committing crimes enumerated in the gang benefit statute was deficient; and (2)
the evidence showed only a personal, not a gang-related, intent for the charged
offenses. We are not persuaded.
In order to
prove the “primary activities†element of the gang benefit statute, the
evidence must show that committing the crimes enumerated in the statute is “one
of the group’s ‘chief’ or ‘principal’ occupations.†(People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.) As our Supreme Court has explained: “‘Though members of the Los Angeles Police
Department may commit an enumerated offense while on duty, the commission of
crime is not a primary activity of
the department.’†(Id. at pp. 323-324.) A
gang’s primary activities may be proved by expert testimony. (See People
v. Gardeley (1996) 14 Cal.4th 605, 617-620.) A gang expert’s testimony may be based on his
or her personal conversations with gang members, and personal investigation of
gang-related crimes, and any other information of a nature that an expert may
use to render his or her opinions. (
At trial,
Long Beach Police Department Detective Hector Cardiel from the department’s
gang enforcement section testified as an expert on the BST gang. The detective’s testimony included a description of his education, training,
and experience dealing with gangs. As a
member of the gang enforcement section for more than 10 years, Detective
Cardiel assisted on all gang-related shootings and homicide investigations in
the city, gathered intelligence on gang members, contacted gang members,
tracked the activity of gangs, and talked to victims and witnesses of gang
crimes, as well as family members of gang members and non-gang members. For the longer period of 15 years as a police
officer, Detective Cardiel has been in contact with gang members, victims, and
witnesses as part of his regular duties.
He has had contact with gang members “on a daily basis.†These contacts include interviewing gang
members, and completing field identification cards. Detective Cardiel has had contacts with BST
gang members “numerous times,†and had investigated crimes committed by members
of the BST gang members. In addition to
his police training and experience, Detective Cardiel has personal experience
with gang members. He grew up in South
Central L.A., where he knew gang members, and witnessed robberies, shootings,
and gang initiations. He was
a victim of a shooting.
When asked on direct
examination, “What are the primary activities of [the BST] gang?†Detective
Cardiel answered, “Robbery, shootings, stabbings, homicides, drug sales,
assault with a deadly weapons, burglaries, car
jackings . . . .â€
Detective Cardiel’s testimony constituted sufficient
evidence of the BST gang’s primary activities.
The evidence in the current case was not at all akin to the type of
cursory and conclusory testimony found deficient in cases such as In re
Alexander L. (2007) 149 Cal.App.4th 605.
Making a
more focused challenge against Detective Cardiel’s testimony, Daniel argues the
detective’s testimony was not sufficient to prove the gang allegation because,
when asked on cross-examination whether he had attempted to “look up anythingâ€
or do “research†to determine the “actual crimes that were committed by
documented members of [the BST gang],†the detective answered that he had
attempted such research, but that his efforts had not been successful. He explained: “I couldn’t find a system or
anything within our police department that would give that type of information
other than field interview cards on the gang.â€
Basically, Daniel argues Detective Cardiel’s testimony was not
sufficiently supported by reliable underlying information of a type ordinarily
relied upon by experts; it had had no support in reliable, documented records.
Detective
Cardiel’s expert testimony in this case was based less on collected reference
materials than on his personal knowledge and experience dealing with gangs over
a 15-year police career, including a little over 10 years personally
investigating gang crimes and gathering gang information, including “numerous†investigations
of crimes committed by BST gang members.
Still, we are more than satisfied that the detective could offer an
opinion on the BST gang’s primary activities based upon his personal knowledge
and experience. Detective Cardiel did
not necessarily have to rely on collected facts from other sources as may be
the case in certain other gang expert testimony situations. His personal experience interacting with
gangs on the streets of Long Beach for 15 years is itself a valuable resource
for the information. Expert testimony is
often based on education, training, and experience. A reference to some type of library of the crimes committed by BST beyond that which
was set forth in the field interview cards was not required. We agree that a gang allegation is not so
simply because a prosecution’s gang expert says it is so, but the cases cited
in Daniel’s opening brief on appeal do not support the proposition that it is
absolutely required to have a gang expert’s testimony supported by reference to
documented records.
Turning to
Daniel’s alternative contention, we reject his argument that there was no
evidence demonstrating the crime was committed for the benefit of a gang and
instead only a personal motivation for the charged crimes. Daniel argues: “Unlike the usual gang case, there was no
evidence of a gang rivalry or war
between BST and the taggers. [Daniel]
and his companions went to the apartment to confront the men who had harassed
Liliana.†We disagree with Daniel’s
argument for a few reasons. First, no
case cited in Daniel’s opening brief supports his implicit argument that a
personal motive and a gang benefit motive are mutually exclusive. The important element here is that the
prosecution’s gang expert, Detective Cardiel, testified that crimes of the
nature that were perpetrated in the courtyard would have been for the benefit
of the BST gang. If it was purely a
personal matter, then members of the attacking group would not have been
shouting “BST†during the onslaught.
Second, no
case supports the proposition that a gang benefit motive cannot arise outside
of a gang rivalry or war setting. Again,
the prosecution’s gang expert, Detective Cardiel, testified there was a gang
benefit in the form of intimidating the local residents and community.
Last, we
reject Daniel’s reliance on In re Daniel
C. (2011) 195 Cal.App.4th 1350 for reversal. In Daniel
C., a juvenile court found that a minor had committed the offense of
robbery and that the allegation the crime was committed for the benefit of a
criminal street gang was true. The
evidence showed that the minor took a bottle of Jack Daniels off a supermarket
shelf and started to leave the premises.
When confronted by an employee, the minor swung the bottle at the
employee. The Court of Appeal reversed
the gang finding, ruling that there was no evidence the minor had committed the
offense “with the specific intent to promote, further, or assist in any
criminal conduct by gang members.†(
minor associated with gang members, and was with other gang members at the time
of the offense, was not enough to show intent to promote the gang’s criminal
activities. (Id. at pp. 1359-1364.)
In the
current case, the facts are materially different. Here, multiple members of a gang committed
crimes together, while members of the gang shouted the gang’s name. The
prosecution’s gang expert testified that crimes of such a nature would be conducted
to promote the gang’s criminal activities by intimidating the local
residents. We are satisfied that the
evidence supported the jury’s finding that Daniel participated in the charged
crimes with the intent to promote the criminal activities of the BST gang.
II. The Accomplice Instruction Issue
For the
reasons explained above in addressing co-appellant Francisco Navarro’s appeal,
we reject Daniel’s argument that all of his convictions must be reversed
because the trial court instructed with CALCRIM No. 334 instead of CALCRIM No.
335.
III. Joinder
Daniel
joins all of the arguments of his co-appellants. We have addressed such issues as presented,
and, for the reasons, explained, find no reversible error as to Daniel.
The judgments are affirmed.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.
name="_ftn1" title="">
the Penal Code.
name="_ftn2" title="">
varied as to the number of intruders.
