Filed 9/5/13 P. v. Cerda CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
MARTIN
CERDA, JR.,
Defendant and Appellant.
A133103
(Contra Costa County
Super. Ct. No. 1001346)
Based
on a fatal drive-by gang shooting, defendant Martin Cerda, Jr., was convicted
of first degree murder (Pen. Code,
§ 187),
title="">[1] conspiring to commit
murder (§§ 182, subd. (a)(1), 187), shooting
a firearm from a motor vehicle (former § 12034, subd. (c)),
conspiring to shoot a firearm from a motor vehicle (§§ 182, subd. (a)(1),
12034, subd. (c)), and street terrorism
(§ 186.22, subd. (a)). The jury also found that the murder, conspiracy,
and shooting offences were committed to benefit a street gang (§ 186.22,
subd. (b)(1)) and that a principal in the offenses used a firearm
resulting in the death of the victim (§ 12022.53, subd. (e)(1)). The court
sentenced defendant to prison for 50 years to life.
Defendant
appeals his conviction on several grounds. He claims that the prosecutor acted
with purposeful ethnic discrimination in exercising peremptory challenges
against two African-Americans and that the court erred in admitting evidence
that the vehicle used in the shooting had been used in a prior crime, in
admitting police testimony describing prior gang killings, in admitting a
letter written by defendant in custody awaiting trial, and in imposing stayed
gang enhancements. We shall modify the sentence to strike the unauthorized gang
enhancements but affirm the judgment in all other respects.
STATEMENT OF facts
Three
young men—defendant, Alberto Alejandre, and Hung Nguyen—were jointly charged in
the drive-by shooting of 20-year-old Francisco Perez. Defendant was tried
separately from the two others because he gave a statement to the police
admitting that he drove the vehicle, but incriminating the other men as the
shooters. (Bruton v. United States
(1968) 391 U.S. 123, 126.) In two separate trials each man claimed the others
shot Perez, but all three were convicted and have appealed separately. (See
A131367) [nonpub. opn.]; People v. Nguyen
(Sept. 5, 2013, A135195) [nonpub. opn.].) The following statement of facts
is based solely upon the evidence presented at defendant’s trial.
The August 5, 2009 shooting
Francisco
Perez lived on Maricopa Street in San Pablo. Perez was a former Sureño gang
member who years before had testified against defendant’s older brother, Victor
Cerda, at a trial in which Victor was convicted of murdering a rival Norteño
gang member. In 2009, he lived with his grandmother and left for work every
weekday morning at 7:00 a.m. On the morning of August 5, as Perez left for work
a fusillade of gunfire erupted. Perez’s grandmother saw a man in a white van
shooting at her grandson. A bullet grazed Perez’s forehead and another bullet
perforated his torso, liver, heart, and lungs. Perez collapsed on the street
and died in front of his grandmother.
Police investigation
The
police arrived at the scene and found 19 shell casings from two different
firearms. The recovered shell casings were nine-millimeter and .40 caliber. The
police obtained a surveillance videotape from a nearby store that shows a white
van driving back and forth on Maricopa Street in the minutes before the
shooting. The videotape also shows Perez initially walking toward the store
then running from the van as it drove slowly towards him with its side door
open.
The
police had the van under electronic surveillance at the time of the shooting.
Two days before Perez was killed, the police investigated a crime involving a
white van on the highway near the Carquinez Bridge. The police discovered the
van was registered to Alejandre and, after locating the van near Alejandre’s
home, placed a global positioning device (GPS) on the van to track its
movements. On the morning of the Perez shooting, the police were following the
van with the aid of the GPS device. Minutes before the shooting, the van parked
on an empty street and a police officer following the van observed someone in
the van repeatedly open and close the vehicle’s sliding side door. The van then
drove down a small street. The surveillance officer did not follow directly
behind for fear of being observed by the van occupants. The officer used the
GPS device to monitor the van’s location over the next few minutes. The device
showed that the van drove slowly back and forth through the neighborhood of
23rd and Maricopa Streets, making two U-turns and slowing to a speed of five
miles per hour at that street intersection at 7:06 a.m. — the time and place of
the shooting.
Cell
phone records revealed that Nguyen was in the area at the time of the shooting
and minutes after the shooting several calls were placed from Nguyen and
Alejandre to Caesar Sanchez, a Sureño gang member. Nguyen’s calls were
transmitted by cell phone towers along the route traveled by the white van,
which continued to be electronically tracked. The van drove to Richmond and
parked at 7:30 a.m. Sanchez picked up the three men and drove them to
Alejandre’s house. Defendant and Alejandre went to sleep at the house and
Nguyen went home. The three men met later that day at Alejandre’s house where
the police arrested them together. A search of defendant’s house found the two handguns
used in the Perez shooting, both hidden in the grass clippings catch-bag of a
lawn mower. The van was recovered and the fingerprints of defendant, Alejandre,
and Nguyen were found in it.
Defendant’s police statement
Defendant
was interviewed by the police following his arrest. Defendant initially denied
all knowledge of the shooting. He said he spent the entire morning in bed and
claimed not to know that his cousin Alejandre owns a white van. The police told
defendant that they had been tracking the van for days with a GPS device and
knew he was in the van. The police suggested that defendant may have been in
“the wrong place at the wrong time†and should talk to them before Alejandre
and Nguyen did.
Eventually
defendant admitted driving the van but claimed Alejandre and Nguyen were the
shooters and that they acted without him knowing their intentions. The police
asked defendant if, just before the shooting, the van’s sliding door opened and
closed and defendant admitted it was open but said Nguyen opened the door to
yell out at a girl passing on the street. Defendant also admitted driving
slowly through the neighborhood of 23rd and Maricopa Streets and making u-turns
but claimed he was just following directions from his friends. Defendant said
he was driving down Maricopa when he saw Perez on the street and Nguyen told
defendant to “stop right here.†Defendant recognized Perez as the man who
“snitched on [defendant’s] brother.†Defendant stopped the van, expecting
Nguyen to “hop off and beat him up†or “[t]alk shit to him.†Instead, the
sliding door opened and Nguyen and Alejandre fired at Perez. Defendant sped
away and the two men told defendant it was payback for his brother. Defendant
told the police he did not want revenge on Perez and “was trying to change†his
life and leave the gang.
Defendant’s trial testimony
At
trial, defendant admitted driving the van but insisted he did not know that
Alejandre and Nguyen intended to shoot Perez. On cross-examination, defendant
admitted that he lied to the police through most of the interview following his
arrest. Defendant also admitted being a Sureño gang member for 10 or 12 years
and that a “key part†of being a Sureño is punishing “snitches,†including
killing them. Defendant also admitted that his brother Victor gained “a lot of
respect†among Sureños for killing a Norteño and that defendant admired his
brother. When challenged about his claim that he wanted to leave the gang,
defendant admitted that he had “not really†been removing himself from the gang
at the time of the shooting and had obtained a gang tattoo shortly before his
arrest.
Gang
evidence
Officer
Robert Brady of the San Pablo police department testified as a gang expert. He
testified about the rival Sureño and Norteño street gangs and described their
history, criminal activities, and symbols. Brady testified that gangs rely on
violence and fear to maintain territory and to retain control over its members.
To support his testimony that Sureño is a violent criminal street gang, he
described two recent cases in which Sureños were convicted of killing rival
Norteños to benefit the Sureño gang.
The
officer also testified about violence within the Sureño gang. Brady said gangs
rely on secrecy and will retaliate against a gang member for “snitching,†or
talking to the police. The officer said a gang member who snitches on another
gang member will be beaten or killed. Brady testified about a Sureño murder in
which a fellow gang member “snitched†and Victor Cerda, from prison, instructed
a Sureño nicknamed “Whisper†to retaliate but Whisper was killed by the
informer’s friends before he could punish the informer. Brady testified that
defendant bears a tattoo commemorating Whisper. A photograph of the tattoo was
shown to the jury; the tattoo reads “RIP Whisper.â€
Brady
testified that defendant was a Sureño gang member at the time of the Perez
shooting. He based his testimony on defendant’s Sureño tattoos, his
self-identification as a Sureño when jailed, the blue clothes and bandana he
was wearing at the time of his arrest (Sureños identify with blue), and his
association with known Sureños. Brady testified that Alejandre and Nguyen, with
whom defendant was arrested, were also Sureño gang members. Alejandre is
defendant’s cousin.
Brady
interpreted a slang-filled letter that defendant wrote while in custody
awaiting trial. The letter was addressed to defendant’s “homegirl†Lulu Torrez
and referred to a recent shooting reported in the newspaper. The newspaper
article, which defendant enclosed in his letter, said three men were arrested
but the article withheld the shooters’ names. Defendant provided the first and
last names of the shooters, as well as their ages, and asked Torrez to give the
information to “Chato,†whose house was “shot up,†and said he would try to get
the shooters’ addresses so Chato can “handle hales†(the job). The officer
testified that, in his opinion, defendant was “sending out information to
people on the street to commit a retaliatory shooting.â€
Brady
described the murder committed by defendant’s brother and Perez’s role in
testifying against him. Brady was later asked a hypothetical question: “Would
three Sureño gang members going out finding a person who had testified against
one of their fellow gang members, gunning them down in the street, constitute a
crime committed for the benefit of and in association with or furtherance of
the Sureño criminal street gang?†Brady replied “yes†and explained that
killing an informant “keeps the Sureño gang moving, keeps the snitches out
[and] that dissuade[s] people from snitching, both gang members and the public
for fear of retaliation. It gives the gang members themselves status and
respect in the gang for being willing to commit acts of violence such as
murder.â€
discussion
I.
court’s finding that the prosecutor did not challenge prospective jurors on the
basis of race.
Defendant
claims the prosecutor improperly exercised peremptory challenges against
African-American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler).)
There were three African-Americans in the jury pool. Two African-Americans were
called into the jury box and the prosecutor struck both of them. Defendant
objected and the trial court found, by a “bare minimum,†a prima facie case of
discrimination and asked the prosecutor to explain his reasons for excluding
the jurors. The court accepted the prosecutor’s race-neutral reasons and found
there was no purposeful discrimination. Defendant challenges that finding.
“ ‘Under
challenges to strike prospective jurors on the basis of group bias—that is,
bias against ‘members of an identifiable group distinguished on racial,
religious, ethnic, or similar grounds’—violates the right of a criminal
defendant to trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the state Constitution. [Citation.]†[Citation.]
“Such a practice also violates the defendant’s right to equal protection under
the Fourteenth Amendment.†’ †(People
v. Taylor (2010) 48 Cal.4th 574, 611.)
“In
ruling on a motion challenging the exercise of peremptory strikes, the trial
court follows a three-step procedure.†(People
v. Clark (2011) 52 Cal.4th 856, 904.) “First, the defendant must make out a
prima facie case by ‘showing that the totality of the relevant facts gives rise
to an inference of discriminatory purpose.’ [Citations.] Second, once the
defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral
explanation is tendered, the trial court must then decide . . . whether the
opponent of the strike has proved purposeful racial discrimination.’ †(
162, 168, fn. omitted.)
“ ‘[T]he
critical question in determining whether [a party] has proved purposeful
discrimination at step three is the persuasiveness of the prosecutor’s
justification for his [or her] peremptory strike.’ [Citation.] The credibility
of a prosecutor’s stated reasons ‘can be measured by, among other factors . . .
how reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.’ †(
863, 900.) All relevant circumstances may be relied upon in determining whether
there has been purposeful discrimination, including disparate treatment of
similarly situated panelists. (People v.
Lenix (2008) 44 Cal.4th 602, 616, 622.) “If a prosecutor’s proffered reason
for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.†(Miller
El v. Dretke (2005) 545 U.S. 231, 241.) “Comparative juror analysis is
evidence that, while subject to inherent limitations, must be considered when
reviewing claims of error at Wheeler/Batson’s
third stage when the defendant relies on such evidence and the record is
adequate to permit the comparisons.†(People
v. Lenix, supra, at p. 607.)
“The
existence or nonexistence of purposeful discrimination is a question of fact.
[Citation.] We review the decision of the trial court under the substantial
evidence standard, according deference to the trial court’s ruling when the
court has made a sincere and reasoned effort to evaluate each of the stated
reasons for a challenge to a particular juror. [Citations.] ‘[T]he trial court
is not required to make specific or detailed comments for the record to justify
every instance in which a prosecutor’s race-neutral reason for exercising a
peremptory challenge is being accepted by the court as genuine.’ [Citation.]
‘We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to distinguish bona
fide reasons from sham excuses. [Citation.] So long as the trial court makes a
sincere and reasoned effort to evaluate the nondiscriminatory justifications
offered, its conclusions are entitled to deference on appeal. [Citation.]’
[Citation.] A prosecutor’s reasons for exercising a peremptory challenge ‘need
not rise to the level justifying exercise of a challenge for cause.’
[Citation.] ‘ “[J]urors may be excused based on ‘hunches,’ and even ‘arbitrary’
exclusion is permissible, so long as the reasons are not based on impermissible
group bias.†’ †(People v.
Hamilton, supra, 45 Cal.4th at pp. 900-901.)
A. Prospective
Juror E.M.
E.M.
was a married, 61-year-old African-American male living in Walnut Creek who
worked as a massage therapist. The prosecutor stated several reasons for
striking E.M.: (1) E.M.’s wife is a social worker who “deals extensively
with gangs and gang rehabilitation,†which concerned the prosecutor because
part of defendant’s “appeal†to the jury would be that he “is the younger brother
of a hardcore gang member and maybe following in [the brother’s] footsteps†and
E.M. may “feel sorry for†defendant; (2) E.M. has a bachelor’s degree in
psychology and worked as a mental health counselor for teens, which the
prosecutor felt may make E.M. “sympathize†with defendant as if he were a
patient; (3) When E.M. was asked on a written juror questionnaire, “Do you
have any strong feelings about gangs or gang members due to personal
experiences you have had?†E.M. answered “maybe.†In explanation, E.M. wrote,
“My wife works with gang involved member[s] & victims on a daily basis, so
I hear her stories often.†In summarizing his reasons for striking E.M. from
the jury, the prosecutor said he believed E.M.’s psychology education, former
work as a teen counselor, current work as a massage therapist, and interaction
with his wife who worked with gang-involved youth, would make him a juror
sympathetic to the defense.
Substantial
evidence supports the prosecutor’s stated reasons for challenging E.M., and the
trial court reasonably concluded the reasons were race-neutral. The credibility
of a prosecutor’s stated reasons “ ‘can be measured by, among other factors
. . . how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’ †(People v. Hamilton,
supra, 45 Cal.4th at p. 900.) Attorneys selecting a jury often regard
a panelist who is educated in psychology or worked as a mental health counselor
as one who may be sympathetic to the defense. (People v. Streeter (2012) 54 Cal.4th 205, 225 [peremptory challenge
properly based on juror’s experience as a social services caseworker];
p. 907 [peremptory challenge properly based on juror’s experience in
counseling or social services]; People v.
Landry (1996) 49 Cal.App.4th 785, 790–791 [peremptory challenge properly
based on juror’s educational background and experience in psychiatry or
psychology].) Defendant acknowledges this point but argues that E.M.’s
education and counseling work occurred years earlier, lessening its relevance.
But there is nothing improbable about drawing an inference about a panelist’s
disposition from the panelist’s field of study and employment even if the
panelist later pursued another field of work.
Moreover,
E.M. had ongoing experience with the counseling field through interactions with
his wife, who was a social worker assisting gang-involved youths. Defendant
argues that the prosecutor “exaggerated and misstated the record as it
pertained to E.M.’s wife’s occupation, indicating the reasons were not
genuine.†Defendant claims E.M. never said his wife worked in “gang
rehabilitation,†as characterized by the prosecution. But while E.M. did not
use the term “gang rehabilitation,†the prosecutor’s characterization was
nonetheless a fair summary of the information E.M. disclosed. E.M. wrote on his
questionnaire that his wife worked for the Oakland Unified School District as
an attendance placement specialist who works with high school students “who are
failing to succeed socially & academically.†He stated that his wife “works
regularly with students who have gang involvement or are victimized by gangs.
She works often with Alameda County Juvenile Justice officers & judges to place
students re-entering after being released from juvenile detention.†From this
information, the prosecutor could reasonably conclude that E.M.’s wife worked
in rehabilitating gang members and that E.M., “hear[ing] her stories often†and
himself once working with troubled teens, would be sympathetic to defendant as
a young gang member.
The
comparative juror analysis defendant offers does not further his claim.
Defendant contends that Juror No. 23, like E.M., had experience working
with troubled teens yet was selected to serve on the jury. Juror No. 23
was a 58-year-old nonAfrican-American man with degrees in civil engineering and
business administration who worked as a homebuilding consultant. On his
questionnaire, Juror No. 23 responded to the question “Do you have any
strong feelings about gangs or gang members due to personal experiences you
have had?†by stating “I’m concerned about my CASA child getting involved with
gangs.†During voir dire, Juror No. 23 explained that his reference to
CASA means that he volunteers as a Court Appointed Special Advocate for
children in dependency proceedings. While E.M. and Juror No. 23 both
worked with troubled teens, a full reading of the record makes clear that Juror
No. 23 was far more likely to be sympathetic to the prosecution than E.M.
“Advocates do not evaluate panelists based on a single answer†during voir
dire, nor should reviewing courts. (People
v. Lenix, supra, 44 Cal.4th at p. 631.) Juror No. 23’s
questionnaire responses revealed that he was a businessman friendly with police
officers who expressed “empathy†for the victim’s family. Juror No. 23
reported that his friend was murdered by gang members and stated his
determination to keep the foster child he assisted away from gangs. Juror
No. 23 also said he believed police officers were “better trained in
observing situations†when the juror assesses witness credibility at trial.
Juror No. 23 pledged to apply the law fairly but conceded that his
experience working with troubled teens tended to make him likely to favor the
prosecution. Contrary to defendant’s assertion, E.M. and Juror No. 23 were
not similarly situated.
B. Prospective
Juror A.B.
A.B.
was a single, 26-year-old unemployed African-American male living in Hercules.
The prosecutor stated several reasons for striking A.B. from the jury:
(1) A.B. “is fairly young;†(2) “made no attempt to get any type of formal
education†beyond attendance at “some college or tech schoolâ€; (3) never
moved from his parental home despite having graduated high school eight years
previously; (4) was unemployed and previously employed as a coffee shop
barista and video store clerk; (5) listed Game Informer Magazine (a video game
magazine) as the only magazine to which he subscribes; and (6) responded to the
questionnaire in a way that suggested A.B. “was trying to get on the jury†by,
for example, touting his patience and attention to detail.
In
summarizing his reasons for striking A.B., the prosecutor said it appeared that
A.B. “has never made a real decision in his life. He has worked for basically
dead-end jobs, has no formal college and, as of yet, not moved out of his
parents’ house and is content to play videogames. [¶] This is not somebody
that I want making an extremely important decision that requires real world,
real life experience.†The prosecutor said he intended to ask the jurors “to
disbelieve a significant part†of defendant’s police statement and needed
“jurors who can critically analyze the evidence and make decisions. I don’t
need juror[s] who have zero life experience, haven’t attended college of any
sort, and have yet to move out of their parents’ home and apparently are video
enthusiasts. This is not the kind of person, regardless of race, color, creed,
religion, ethnicity, that I want on this jury.â€
Substantial
evidence supports the trial court’s finding that the prosecutor had
race-neutral reasons for striking A.B. “A potential juror’s youth and apparent
immaturity are race-neutral reasons that can support a peremptory challenge.†(
575. “Limited life experience is a race-neutral explanation†(
1313, 1328), and an attorney may reasonably conclude that a potential juror’s
“immaturity and inexperience with assuming weighty decisions and
responsibilities†makes one unsuitable (People
v. Sims (1993) 5 Cal.4th 405, 431).
Defendant
argues that the prosecutor failed to engage A.B. in anything more than
“desultory voir dire†before striking him, which may suggest that the strike
was based on group bias rather than individual assessment. (
p. 281.) But A.B.’s lack of life experience was apparent from the
questionnaire and required no probing. His responses to the questionnaire
established that he graduated from high school about eight years prior, had no
employment for two years following graduation, worked one year as a video store
clerk and less than four years as a coffee shop barista, and at the time of
trial had been unemployed for over two years. The questionnaire also
established that A.B. never left home. Defendant disputes this fact but A.B.
stated that his only residence since 1998, when he was 13 years old, was his
parents’ home in Hercules.
Defendant
offers no comparative juror analysis for A.B. Our comparison discloses no juror
or alternate who was selected matching the youth and inexperience of A.B. The
youngest person selected was 39 years old and most were over age 50. No
disparate treatment appears on the record.
II.
evidence that the vehicle used in the Perez shooting was under surveillance for
suspected involvement in a prior crime.
Defendant
contends the trial court erred in admitting evidence that the van used in the
Perez shooting had been used in a prior crime because this evidence improperly
suggested to the jury that “defendant must have known that by driving this van
he was going to be participating in a drive-by shooting because that is what
his acquaintances did in this van.â€
In
fact, the court precluded the police from revealing that the prior crime was a
drive-by shooting. The police testified that the van was under surveillance
because the police were investigating a crime that occurred on the highway near
the Carquinez Bridge but the crime itself was not described. The evidence was
properly admitted to explain why the police were tracking the vehicle with a
GPS device and to support police testimony that they were closely observing the
van. Minutes before the shooting, which occurred from the van’s open sliding
door, a police officer following the van saw the sliding door repeatedly open
and close, which supported the inference that the shooting was planned and that
defendant was a knowing participant in the shooting. The police observation contradicted
defendant’s claim, made to the police shortly after his arrest, that the van
door opened and closed just once, and then only because Nguyen wanted to speak
to a nearby girl. Defendant repeated that claim when he testified at trial and
on cross-examination defense counsel questioned the officer’s ability to see
the van and the surrounding area. Evidence that the police were investigating a
prior crime involving the van and therefore had reason to carefully observe its
every movement was relevant to a disputed fact and properly admitted.
III.
of prior violent crimes committed by Sureño gang members.
Defendant
was charged with active participation in a “criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang.†(§ 186.22, subd. (a).) It was
further alleged that defendant committed murder and other crimes “for the
benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.†(§ 186.22, subd. (b)(1).) To establish a “pattern
of criminal gang activity,†the prosecution must prove the commission of two or
more recent criminal offenses by the gang. (§ 186.22, subd. (e).)
Defendant
offered to stipulate that he was a member of the Sureños, a criminal street
gang, and that any crimes committed were committed in furtherance of the gang.
The prosecution did not accept the proposed stipulation. The court permitted
the prosecution to introduce evidence of two predicate acts establishing a
pattern of gang activity — testimony by Officer Brady about two recent cases in
which Sureños were convicted of killing rival Norteños to benefit the Sureño
gang.
Defendant
contends that the court should have compelled the prosecution to accept the
stipulation and excluded evidence of those two murders. However, the
prosecution generally “ ‘may not be compelled to accept a stipulation
where the effect would be to deprive the state’s case of its persuasiveness and
forcefulness.’ †(People v. Valdez (2012)
55 Cal.4th 82, 130.) Defendant asserts that the only probative value of the
gang evidence was to establish the gang offense and enhancement, but this
evidence was also relevant to show defendant’s motive and intent to kill.
Defendant’s claim that he did not want revenge against Perez and knew nothing
of his fellow gang-members’ intention to punish Perez for being an informant is
undermined by evidence that defendant is a long-standing member of a gang known
for, and proud of, killing snitches.
For
similar reasons, defendant’s separate contention that the court should have
excluded evidence of his brother’s murder of a rival Norteño also fails.
Evidence of the murder was highly probative of defendant’s motive and intent to
kill Perez in retaliation for Perez informing on Victor. Contrary to
defendant’s assertion, the murder was not described in undue, inflammatory
detail. The prosecutor asked a police officer to “briefly†describe the murder,
and the officer complied: “It was in Davis Park in San Pablo, 2003, I believe.
[Victor Cerda] was in Davis Park with other gang members, fellow gang members.
He saw two perceived rival Norteños walking through the park. There was a
verbal confrontation between Victor and the other two subjects. He pulled out a
gun, and the two Norteños turned to run. One of them was shot in the arm. The
other was shot in the back and killed.†The only other information provided by
the testifying officer was that Perez was present at the shooting, Perez gave a
statement to the police describing the events, and Cerda gained respect among
Sureños for the killing. The court did not abuse its discretion in admitting
this limited evidence, which was directly relevant to the prosecution’s theory
that defendant intentionally participated in the killing of Perez to revenge
the perceived betrayal of defendant’s brother, a respected gang member.
As
evidence of Sureño intolerance for police informants, the court also properly
admitted evidence of the planned killing of another Sureño accused of informing
on the gang. The gang expert, Officer Brady, testified about a Sureño murder in
which a fellow gang member “snitched†and a Sureño nicknamed “Whisper†was
ordered to retaliate but was killed by the informer’s friends before he could
punish the informer. Defendant bears a tattoo commemorating Whisper that reads
“RIP Whisper.†Defendant argues that this evidence has only “minuscule
probative value†because the informant was not actually killed. We disagree.
The evidence shows that Sureños target informants and that defendant felt an
affinity for the intended gang enforcer.
IV.
defendant wrote in custody awaiting trial.
Defendant
wrote a letter from jail relaying to the victim of a shooting the names of the
shooters so the victim could “handle†the job, which a gang expert interpreted
to be a directive for a retaliatory gang shooting. Defendant argues that
evidence of the letter was impermissible character evidence and more
prejudicial than probative.
The
evidence was neither admitted nor argued by the prosecutor to show propensity
to commit criminal acts. In his police statement, defendant said he did not
want revenge on Perez and “was trying to change†his life and leave the gang.
At trial, defendant denied any intention to facilitate the killing of Perez and
denied that when driving the van he knew that Alejandre and Nguyen intended to
shoot him. He testified that , at the time of the shooting, he wanted out of
the gang and was “not as committed†as he had been previously. Defendant also
said it “[d]idn’t bother [him] at all†that the man who “snitched†on his gang
and his brother was living in the neighborhood. Defendant denied that the
Sureños are an organized group. He testified that the Sureños are not like “a
corporation or something†and he did not “take orders from people†in the gang.
Defendant’s letter tended to impeach much of this testimony. It tended to
refute his professed desire to remove himself from the Sureños and his
disavowal of any intention to participate in a retaliatory shooting. The trial
court could rightly regard the probative value of the letter to far outweigh
any possible prejudicial impact from its admission. Indeed, although we
conclude that the letter was properly admitted, in view of the overwhelming
evidence of defendant’s guilt, any conceivable error in this respect was
plainly harmless.
V.
imposed.
The trial court imposed 10-year
sentence enhancements for defendant’s commission of two violent felonies
(murder and conspiracy to murder) for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)) but stayed those enhancements under section
654. The People concede that the sentence enhancements are unauthorized and
should be stricken.
Section
186.22, subdivision (b) “establishes alternative methods for punishing felons
whose crimes were committed for the benefit of a criminal street gang. Section
186.22, subdivision (b)(1)(C) . . . imposes a 10-year enhancement
when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does
not apply, however, where the violent felony is “punishable by imprisonment in
the state prison for life.†(§ 186.22, subd. (b)(5).) Instead, section
186.22, subdivision (b)(5) . . . applies and imposes a minimum term
of 15 years before the defendant may be considered for parole.†(
1004; cf. People v. Salas (2001) 89
Cal.App.4th 1275, 1281-1283 [parole ineligibility inapplicable when
§ 12022.53, subd. (e)(1) enhancement is imposed, absent personal firearm
use].)
Defendant
was sentenced to life terms for the violent felonies of murder and conspiracy
to murder and, thus, the section 186.22, subdivision (b)(1)(C) sentence
enhancement is inapplicable. (People v.
Lopez, supra, 34 Cal.4th at p. 1004.) We shall modify the sentence to
delete, rather than to stay, those terms.
disposition
The
judgment is affirmed but modified to delete the 10-year sentence enhancements
imposed under section 186.22, subdivision (b)(1)(C) on counts one and two. The
clerk of the superior clerk shall prepare an amended abstract of judgment to
delete those sentence enhancements and send a copy of the amended abstract to
the Department of Corrections.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
All further section references are to the Penal Code.
Former section 12034 was repealed and re-enacted as section 26100 without
substantive change. (Stats. 2010, ch. 711, § 4.)
