P. v. Falcon
Filed 10/8/13 P. v. Falcon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE FALCON,
Defendant and
Appellant.
2d Crim. No.
B237163
(Super. Ct.
No. BA375870-01)
(Los
Angeles County)
Jorge Falcon appeals
from the judgment following his conviction by jury of willful, deliberate, and
premeditated attempted murder (Pen. Code, §§ 187/664, subd. (a)),
with findings that the crime was for the benefit of a
used a firearm. (§§ 186.22, subd.
(b)(1)(C); 12022.53, subds. (b), (c) & (e)(1).)
including a consecutive 10-year gang enhancement. (§ 186.22, subd. (b)(1)(C).)
Appellant contends: (1) the gang benefit and personal firearm use
findings are not supported by substantial
evidence; (2) the trial court violated his constitutional rights by
allowing the prosecutor to ask the gang expert hypothetical questions which
included appellant's name, and counsel's failure to object to such questions
deprived him of the effective assistance of counsel; (3) the court abused its
discretion by denying appellant's request to disclose confidential juror information;
and (4) the court erred by imposing a 10-year gang enhancement for premeditated
attempted murder. Respondent correctly
agrees with the last contention. We will
strike the gang enhancement and remand the matter to the trial court with
directions. In all other respects, we
affirm the judgment.
Factual
and Procedural Background
On August 28, 2009, the victim, Jorge Ramirez, stood
near a tattoo shop in the 4400 block of South Avalon
Boulevard, in Playboys gang territory. It was daylight, and a few other people were
there, including Ramon Guerra, and "Cricket," a Playboys gang
member. A gold sports utility vehicle
(SUV), possibly a Jeep, slowly passed by, twice, with three men inside. On its second pass, the SUV occupants threw
gang signs, and called out "41."
They also shouted derogatory terms for the Playboys gang, like
"Peanut Butters," or "fuck putas." The SUV occupants were later identified as
appellant, Luis Secaida and Jaime Garcia, who are 41st
Street gang members with visible gang tattoos.
Garcia parked the
SUV. Appellant and Secaida got out and
walked slowly toward the tattoo shop.
Appellant, who wore a black "hoodie," pulled a gun from his
waistband, and Ramirez ran away.
Appellant shot at him. Secaida
pulled out a gun, pointed toward Ramirez, and fired.
Los Angeles Police
Department (LAPD) Officer Jose Vaca and his partner arrived at the crime scene
shortly after the shooting. They
recovered six .32 caliber shell casings, approximately 20 feet from the tattoo
shop. Three months later, appellant was
detained and searched on an unrelated matter.
The search yielded a gun, which subsequent testing showed had fired the
casings found at the crime scene.
Officers interviewed
Ramirez and Guerra on multiple occasions after the shooting. After several months, Guerra identified
appellant as the shooter. Ramirez
identified appellant and Secaida and said they both shot at him from
"point range" while he was with Playboys members.
Appellant told
investigating officers that he was with Secaida (Grinch) and Garcia (Chaos)
before the shooting. He denied that he
fired a gun at the Playboys, and said Secaida had the gun, which he gave to
appellant after the shooting.
Ramirez and Guerra did
not identify anyone at trial. They
testified they had been unable to identify anyone before trial. Ramirez testified he did not place his
initials on the photo lineup displays that bear his initials. Guerra testified that officers forced him to
select photos from the lineups, and he could not recall what he told them.
Prosecution gang expert
Officer Nathan Brown testified that he received in-field training with
experienced gang officers, two years of crime suppression experience in LAPD's
Metropolitan Division, and that he had regular contact with multiple Black and
Hispanic gangs in that Division. He then
worked in the Newton Division gang unit for two years, where he received
additional training and experience in gang crime investigation and gang
suppression activities. His primary gang
unit assignment included the 83-member 41st Street
gang and its much larger rival, the Playboys gang. They have a multi-year feud over territory
located near the shooting scene. Brown
subsequently became a patrol officer in the Newton Division, and regularly
encountered the 41st Street and Playboys gangs and continued to monitor their
activities. He has testified as a gang
expert and he shares his expertise with other officers investigating
DISCUSSION
I. Sufficiency
of the Evidence
Appellant argues that
there is not sufficient evidence to support the gang benefit and personal
weapon use findings. We disagree.
"In considering a
challenge to the sufficiency of the evidence to support an enhancement, we
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence‒that is, evidence that
is reasonable, credible, and of solid value‒from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
We presume every fact in support of the judgment the trier of fact could
have reasonably deduced from the evidence.
[Citation.] If the circumstances
reasonably justify the trier of fact's findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.
[Citation.] 'A reviewing court
neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People
v. Albillar (2010) 51 Cal.4th 47, 59-60.)
A.
We reject appellant's
claim that the gang enhancement is not supported by substantial evidence. The gang enhancement statute imposes
additional consequences when crimes are committed for the benefit of a criminal
street gang. (§ 186.22, subd.
(b)(1).) An essential element of a
criminal street gang is that one of its "primary activities" is the commission
of specified criminal offenses. (
used in the gang statute, implies that the commission of one or more of the
statutorily enumerated crimes is one of the group's 'chief' or 'principal'
occupations." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Assault with deadly weapons or force likely
to produce great bodily injury, robbery, murder, attempted murder, gun
possession and auto theft are among the crimes enumerated in the gang
statute. (§ 186.22, subd.
(e)(1)-(3), (23) & (25); see People
v. Vy (2004) 122 Cal.App.4th 1209, 1226 [attempted commission of enumerated
crimes also falls under gang statute].)
To make the required showing, the prosecution may rely on evidence of
the crimes charged against the defendant, evidence of crimes committed by other
gang members, and expert testimony regarding the gang's activities. (Sengpadychith,
at pp. 323-324.)
Prosecution gang expert
Officer Brown testified that the primary activities of the 41st Street gang are
"murder, robbery, vandalism, auto theft, weapons violations, and possession
of automatic weapons." Brown
testified regarding Jose Garcia, the self-admitted 41st Street member who was
convicted in 2009 for second degree murder and assault with a firearm,
predicate offenses that he committed in January 2007. Brown spoke with the officer who arrested
Jose Garcia for the 2007 offenses.
Although Brown testified
that the 41st Street gang committed crimes listed in the gang statute,
appellant argues the prosecution failed to present adequate evidence of the
41st Street gang's primary activities.
In so arguing, he relies in large part on In re Alexander L. (2007) 149 Cal.App.4th 605.
Alexander L. does not help him.
There, the gang expert testified that the subject gang "'committed
quite a few assaults with a deadly weapon, several assaults,'" and had
been "'involved in murders'" and "'auto thefts, auto/vehicle
burglaries, felony graffiti, narcotic violations.'" (Id.
at p.611.) The appellate court concluded
the testimony was insufficient to establish the gang enhancement because (1)
the expert admitted that the "vast majority" of cases connected to
the gang were "graffiti related;" and (2) his testimony lacked an
adequate foundation: "[i]t is
impossible to tell whether his claimed knowledge of the gang's activities [was]
based on highly reliable sources, such as court records of convictions, or
entirely unreliable hearsay." (
In contrast, gang expert
Brown acquired extensive personal knowledge of the 41st Street and Playboys
gangs in the Newton Division gang unit, and as a patrol officer in that
Division. In addition to having hundreds
of personal contacts in those gangs, Brown reviewed field investigation records
and reports pertaining to the gangs, and consulted other officers regarding the
gangs' crimes. The certified records of
convictions for the predicate crimes and Brown's testimony evidenced that the
41st Street gang's primary activities included crimes enumerated in the gang
statute. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 [testimony of a
gang expert, founded on conversations with gang members, personal investigation
of crimes committed by gang members, and information from colleagues in other
law enforcement agencies, may be sufficient to prove a gang's primary
activities].) People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.)
B. Firearm
Use Enhancement
Viewing the evidence as
we must, in the "light most favorable to the judgment," we reject
appellant's claim that there is not sufficient evidence to support the jury's
finding that he personally used a firearm.
(People v. Albillar,
scene. He was in possession of the gun
months after the shooting. He
nonetheless claims there was not sufficient evidence to support the finding
that he personally used a firearm, and stresses that Ramirez and Guerra failed
to identify him as the shooter at trial.
However, the jury heard other evidence that they identified him as the
shooter before trial. The evidence
supports the jury's finding that the firearm use allegation is true. (See
People v. Cuevas (1995) 12 Cal.4th 252, 257 [identification is sufficient
to support a conviction, even if the witness is unable to positively identify
the defendant at trial].) "Whether
a defendant 'used a firearm in the commission of' [a crime] is for the trier of
fact to decide." (
1001, 1007.) We neither reweigh evidence
nor reevaluate the credibility of witnesses.
(Albillar, supra, at p. 60.)
II. Hypothetical Questions
Appellant contends the
trial court committed prejudicial error and violated his constitutional right
to due process and a fair trial by allowing the prosecutor to pose hypothetical
questions using his name, and the codefendants' names, which "allowed the
expert to opine that appellant was the shooter." We disagree.
"As a general rule,
a trial court has wide discretion to admit or exclude expert
testimony." (People v. Page (1991) 2 Cal.App.4th 161, 187.) "We apply an abuse of discretion
standard in reviewing a trial court's decision to admit the testimony of an
expert." (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
Evidence Code section
805 provides that "[t]estimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate issue to be
decided by the trier of fact." (
p. 1227; People v. Valdez (1997) 58
Cal.App.4th 494, 507 [a gang expert testified that the defendant was a member
of a particular gang and that his activities were undertaken on behalf of the
gang].) "Hypothetical questions
must not be prohibited solely because they track the evidence too closely, or
because the questioner did not disguise the fact the questions were based on the
evidence." (People v. Vang (2011) 52 Cal.4th 1038, 1051.)
Appellant argues that
the challenged hypothetical questions are prejudicial because "it was
disputed [he] was the shooter" and the expert's opinion told the jury
appellant "was the actual gang member who displayed the gun and
fired." We disagree. Appellant bases his claim of prejudice on the
false premise that the gang expert opined that he was the shooter. The expert's opinion did not even address the
identity of the shooter. Rather, it addressed
the purpose of a hypothetical crime. The
expert opined the hypothetical crime was committed for the purpose of
benefitting a criminal street gang. We
thus reject appellant's claim that the court erred prejudicially by allowing
the prosecutor to pose the hypothetical questions.
III. Confidential Juror Information
Appellant contends the
trial court abused its discretion by denying his petition for disclosure of
personal juror information. We disagree.
On October 6, 2011, the
jury returned its verdict, including its finding that appellant personally used
a firearm. Jurors Nos. 2 and 7 were
visibly upset. The trial court polled
the jury, and each juror expressed agreement with the verdict. A day after the verdicts were returned, juror
No. 7 spoke ex parte with the trial court.
A reporter recorded their meeting.
On October 19, 2011, the
sentencing date, counsel filed a petition seeking disclosure of juror
information regarding jurors Nos. 2 and 7, because he believed other jurors may
have coerced them. Counsel cited the
emotional distress of both jurors in court, and described having later seen
juror No. 7 "by the elevators in a daze," with another juror
consoling her. During proceedings on
October 19th, the trial court advised counsel of its meeting with juror No. 7,
who had concerns about "whether or not [appellant] personally discharged
the firearm." While discussing the
matter, the court recalled having asked juror No. 7 whether there was any
pressure to vote as she had, and said she responded with an "unequivocal,
'No.'" The court noted that many
jurors were emotionally affected by the decision, which made sense, given the
extremely serious charges, appellant's young age, and other factors. The court also observed that juror No. 7
did not seem to be "a likely candidate to be . . . pressured in an
unlawful manner, with respect to the ultimate verdict that she represented on
the record in fact was her own."
The court ordered the reporter to provide counsel a transcript of the
meeting with juror No. 7, and invited counsel to submit further authority.
On November 3, 2011, the
court denied the petition because there was not "a sufficient showing . .
. of any juror misconduct that would necessitate or warrant disclosure of the
[requested] contact information."
After a criminal jury
verdict is recorded, all identifying juror information is sealed until further
order of the trial court. (Code Civ.
Proc., § 237, subd. (a)(2).) A defendant
may "petition the court for access to personal juror identifying
information within the court's records necessary for the defendant to
communicate with jurors for the purpose of developing a motion for new trial or
any other lawful purpose." (Code
Civ. Proc., § 206, subd. (g).) "The
petition shall be supported by a declaration that includes facts sufficient to
establish good cause for the release of the juror's personal identifying
information. The court shall set the
matter for hearing if the petition and supporting declaration establish a prima
facie showing of good cause for the release" of the requested
information. (Code Civ. Proc., § 237,
subd. (b).)
Good cause for
disclosure of juror information to support a motion for new trial based on
juror misconduct is "a sufficient showing to support a reasonable belief
that jury misconduct occurred." (
541, 552; People v. Jefflo (1998) 63
Cal.App.4th 1314, 1322.) There is not
good cause where allegations of jury misconduct are speculative, conclusory, or
unsupported, or the alleged misconduct is not "likely to have influenced
the verdict improperly." (Evid.
Code, § 1150, subd. (a); see Rhodes,
at p. 554.) We review the denial of a
petition for disclosure for an abuse of discretion. (People
v. Jones (1998) 17 Cal.4th 279, 317.)
Appellant argues the
trial court abused its discretion by denying his petition for juror information
because there was "undue pressure or coercion in the
deliberations." He cites the
emotional distress of jurors Nos. 2 and 7, and the reference by juror No. 7 to
the juror (a lawyer) who was "helping" the jury. The record supports the court's conclusion
that other factors explain the jurors' emotional reactions. The reference to the lawyer juror's
assistance does not imply coercion.
Further, the record does
not support appellant's claim that juror No. 7's comments prove she "had a
reasonable doubt." She did not
state she had such doubt. She did say
she was "struggling with is whether or not [appellant] was the
shooter." "However, she then
repeatedly said she thought she was having "more of an emotional reaction
. . . [after] get[ting] a sense of who [the defendants] are as
people." She also told the court
that counsel had given her his business card, and she thought she would contact
him and "ask him further questions."
Appellant stresses that
the record does not show the trial court asked juror No. 7 whether other jurors
pressured her, despite the court's contrary statement. It was not required to make that inquiry,
absent evidence of juror misconduct. (
933, 942.) Appellant failed to show that
any conduct by the jury was "of such a character as is likely to have
influenced the verdict improperly."
(Evid. Code, § 1150, subd. (a).)
"[J]urors can be expected to disagree, . . . and to attempt to
persuade disagreeing fellow jurors by strenuous and sometimes heated
means." (People v. Johnson (1992) 3 Cal.4th 1183, 1255.) A verdict may not be impeached by inquiry
into the jurors' mental processes. (
1261.) The court did not abuse its
discretion by denying the petition.
IV.
10-Year Consecutive Gang
Enhancement
Appellant argues, and
respondent agrees, that because appellant was sentenced to an indeterminate
term for the premeditated attempted murder, the trial court should not have
sentenced him to a consecutive 10-year term for the gang enhancement for that
crime. We also agree. (People
v. Lopez (2005) 34 Cal.4th 1002, 1004-1007; id. at p. 1004 [when a defendant is convicted of a felony that
carries a life sentence and the crime is gang-related, section 186.22,
subdivision (b)(5) "applies and imposes a minimum term of 15 years before
the defendant may be considered for parole"].) We will strike the consecutive 10-year gang
enhancement and remand the matter to the trial court with directions.
DISPOSITION
We strike the section
186.22, subdivision (b)(1)(C), consecutive 10-year gang enhancement imposed for
the premeditated attempted murder, and direct the trial court to impose the
15-year minimum parole eligibility requirement set forth in section
186.22, subdivision (b)(5). The clerk of the superior court is directed
to amend the abstract of judgment accordingly, and to forward a certified copy
of the amended abstract to the Department
of Corrections. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P.J.
YEGAN, J.
Craig J. Mitchell, Judge
Superior Court County of Los Angeles
______________________________
Thomas Owen, under
appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Blythe H. Leszkay, Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
otherwise stated.
Appellant's codefendants, Luis Secaida and Jaime
Garcia are not parties to this appeal. A separate jury decided their case, in
simultaneous proceedings before the same court.
