P. v.
Filed 9/14/12 P. v. Martinez CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL JAVIER MARTINEZ,
Defendant and Appellant.
G045646
(Super. Ct. No. 05CF1582)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Steven D. Bromberg, Judge. Affirmed.
Kevin D. Sheehy, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton, James H. Flaherty III, and
Scott Taylor Deputy Attorneys General, for Plaintiff and Respondent.
Paul
Javier Martinez appeals from a judgment after a jury convicted him of willful,
deliberate, and premeditated attempted murder and aggravated assault and found
true he personally used a deadly weapon and inflicted great
testimony of the gang expert. We
disagree and affirm the judgment.
FACTS
In December 2004, Ken
Murdock, a bouncer at Kelly McCue’s bar in Mission Viejo,
saw a very intoxicated Sylvester Valencia
arguing with his girlfriend Lindsey/Linzy Juardo. Juardo walked away and began talking and
dancing with
Diego
Vera. Valencia
pushed a barstool to the ground, and Murdock asked him to relax. Valencia
considered the exchange between his girlfriend and Vera to be flirtatious and
he walked to Vera. Martinez,
who had come to the bar with Vera and others, sat nearby. Valencia
told Vera that Juardo was his girlfriend.
Vera told Valencia
that he was from “L.A.†and he was
in a gang. Valencia
put up his hands and said, “Okay.â€
Minutes later, without warning or any provocation by Valencia,
Martinez attacked Valencia.
Valencia
felt Martinez punch him in the left
side of the neck.
Kiersten
Williams, a bar patron, who was slightly intoxicated was outside on the patio
smoking. With her face pressed against
the glass, Williams saw Martinez
with his arm raised above his head with a knife in his hand. Murdock, who saw Martinez
strike Valencia,
tried to stop the attack. From behind,
Murdock grabbed Valencia
around the arms, rendering Valencia
defenseless. As Murdock dragged Valencia
away, Martinez stabbed him. Williams saw Martinez
stab Valencia
three times, including in the neck. Vera
joined in and punched Valencia
in the face. Realizing Valencia
was defenseless, Murdock let him go.
Valencia
jumped up to fight. Murdock saw his
hands were covered in blood and saw blood gushing from Valencia’s
neck. Murdock told Valencia
to stop because he was severely injured.
Valencia
went unconscious. Two off duty medics
administered medical aid to Valencia.
Martinez
and a woman ran out the back door and got into a sports utility vehicle and
drove away. Law enforcement officers
stopped the vehicle and arrested Martinez.
Valencia
underwent emergency surgery. Martinez
stabbed him three times, in the neck, chest, and arm. Forensic analysis later revealed Valencia’s
blood was on Martinez’s shirt and
Vera’s hand.
In July 2005, an
information charged Martinez with
willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664,
subd. (a), 187, subd. (a))
name="_ftnref1" title="">[1]
(count 1), and aggravated assault (§ 245, subd. (a)(1)) (count 2).
personally used a deadly weapon (§ 12022, subd. (b)(1)). With respect to counts 1 and 2, the
information also alleged Martinez
inflicted great bodily injury
(§
12022.7, subd. (a)). The information
also alleged Martinez suffered a
prior prison term within the meaning of section 667.5, subdivision (b).
At his first trial,
after the trial court granted Martinez’s
motion to sever his case from Vera’s case, the jury convicted Martinez
of both counts and found true the enhancements.
The trial court granted Martinez’s
new trial motion on the ground he was denied his constitutional
jury’s verdicts. While Martinez
awaited a new trial, Vera was murdered in a drive-by shooting.
Before his second trial,
the prosecutor moved to admit gang expert testimony, and evidence of Martinez’s
tattoos and a jailhouse letter he wrote.
Detective Julian Rodriguez, a gang expert from the Santa Ana Police Department
gang unit, testified. Rodriguez detailed
his training and experience investigating criminal
street gangs in Los Angeles and
Orange counties. He reviewed the circumstances of the case and
Martinez’s and Vera’s
background. With respect to Vera,
Rodriguez opined he was a member of “18th Streetâ€
(18th Street) gang based on
his prior contacts with law enforcement, his self-admission he was a gang
member, his tattoo, jail letters, and court records. As to Martinez, Rodriguez opined that at the
time of the offenses Martinez was a member of “Westside Santa Barbaraâ€
(Westside Santa Barbara) gang based on the following: A Santa Barbara police report from 1992
indicated Martinez and others attacked a man and claimed to be Westside Santa
Barbara gang members; a field identification card indicated that in April 2004,
Martinez admitted to an Azusa Police Officer he was a member of Westside Santa
Barbara; a tattoo of “WB†on the right side of his neck and “SUR 13,†which
stands for Southside and signifies an affiliation with the Mexican Mafia, on
his forearm; jail letters where Martinez refers to himself by his gang moniker,
“Psycho†and states he is a member of Westside Santa Barbara; and photographs
of Martinez with 18th Street gang members.
Rodriguez
concluded that both Vera and Martinez
were members of different gangs, but when Martinez
relocated to Los Angeles from Santa
Barbara, Martinez
began associating with Vera’s gang but did not quit his affiliation with
Westside Santa Barbara. Rodriguez opined
that Martinez provided back up for
Vera when Valencia
disrespected Vera. Rodriguez admitted 18th
Street and
Westside
Santa Barbara have no relationship with one another and there was no evidence Martinez
previously committed crimes with anyone from 18th
Street.
The prosecutor explained
she was offering Rodriguez’s testimony on the issue of motive for the limited
purpose of showing Martinez and
Vera were gang members and gang members back up each other. The prosecutor stressed that because there
were no gang charges, she would not be offering evidence of Martinez’s
prior contacts or any other gang evidence to establish he was an active
participant in a criminal street gang.
Relying on People v. Gonzalez
(2005) 126 Cal.App.4th 1539 (Gonzalez),
the prosecutor stated that without this testimony, the jury would not understand
why a complete stranger would stab someone in a bar who was not a gang
member. Defense counsel responded the
court would instruct the jury on motive and the jury would likely understand
based on everyday experience what can happen in a bar where you have “[l]ots of
young alcohol-fueled, testosterone-filled males.†Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), defense counsel added not only was the evidence not
relevant, it was highly prejudicial because when any jury hears gang evidence,
they convict.
The trial court asked
assuming the evidence was relevant, how would the prosecutor respond to defense
counsel’s assertion the evidence was unduly prejudicial. The court said, “Because it’s going to be
prejudicial. No question about it. It’s prejudicial.†As she stated previously, the prosecutor said
she was offering limited evidence of Martinez’s and Vera’s gang membership and
gang culture concerning gang members backing up each other on the issue of
motive. The court recessed to review the
applicable legal authority. When back on
the record, the court stated that based on the totality of the gang indicia, Martinez
was a Westside Santa Barbara gang member.
The court relied on Martinez’s
prior contacts, his tattoos, and his self-admissions. With respect to Evidence Code section 352,
the court found Gonzalez dispositive
and Albarran distinguishable and
concluded the significant probative value of the evidence outweighed its
prejudicial impact. The court cautioned
the prosecutor to use “extreme caution†when questioning Rodriguez and limit
questioning to the areas discussed.
At trial, Valencia
testified concerning his exchange with Vera.
Valencia
stated he was not and had never been in a gang and he did not know much about gangs. He explained that when Vera told him that he
was in a gang, Valencia
was “taken aback by it†because it was not important to him. Valencia
added that he did not know what to do with the information and his overall
reaction to Vera’s claim was one of indifference.
Rodriguez testified for
the prosecution. After detailing his
background, training, and experience, Rodriguez testified concerning the
culture and habits of traditional, turf-oriented Hispanic criminal street
gangs, including the importance of respect within gangs, and the concepts of
claiming a gang and backing up gang confederates. Rodriguez said being respected is analogous
to being feared in gang culture and gang members earn respect through various
methods, including committing violent or economic crimes, or being a lookout or
a back up. He explained that claiming a
gang is when a person states what gang he is from, it is considered a
challenge, and it oftentimes leads to a violent confrontation. Rodriguez testified that a gang member would
feel disrespected if the gang member challenged a person and the person did not
take the challenge seriously. He added
the gang member would most likely retaliate violently. Rodriguez said gang members have a duty to
back up other gang members, which would include assisting in a fight. He said weapons are extremely important in
gangs and if a gang members is carrying a weapon, the gang member “has taken on
the responsibility of they are going to use it.†Based on his review of background information
of Martinez and Vera, Rodriguez opined that at the time of the offenses both
were active gang members. Rodriguez’s
testimony established Vera was a member of a Los Angeles criminal street gang,
“18th Street,†and Martinez was a member of a
Santa Barbara gang, “Westside Santa
Barbara.†Rodriguez concluded
that before the offenses, Martinez moved to Los Angeles and began association
with 18th Street gang members. Defense
counsel renewed his objection to the admission of Rodriguez’s testimony.
Martinez offered the
testimony of Officer William Kim, who responded to the bar and spoke with
Murdock and Williams. Defense counsel
questioned Kim about what Williams and Murdock told him in an attempt to
undermine their credibility before the jury.
Martinez also offered the testimony of expert witnesses who testified
concerning memory and the affect alcohol has on the ability to remember.
As relevant here, the
trial court instructed the jury with
CALCRIM
No. 1403, “Limited Purpose of Evidence of Gang Activity,†which provided as
follows: “You may consider evidence of
gang activity only for the limited purpose of deciding whether: [¶]
The defendant had a motive to commit the crimes charged. [¶] OR [¶]
The defendant actually believed in the need to defend himself. [¶] OR [¶] The defendant acted in the heat of
passion. [¶] You may also consider this evidence when you
evaluate the credibility or believability of a witness and when you consider
the facts and information relied on by an expert witness in reaching his or her
opinion. [¶] You may not consider this evidence for any
other purpose, including evidence of premeditation and deliberation. You may not conclude from this evidence that
the defendant is a person of bad character or that he has a disposition to
commit crime.â€
The jury again convicted
Martinez of both counts and found true the enhancements. In a bifurcated trial, the jury found true he
suffered a prior prison term. The trial
court sentenced Martinez to prison for life with the possibility of parole on
count 1 and a consecutive five-year term on count 1’s accompanying enhancements
and the prior prison term allegation.
The court stayed or struck the remaining sentences.
DISCUSSION
Martinez argues the
trial court erred in admitting Rodriguez’s testimony because it was irrelevant,
speculative, unduly inflammatory, prejudicial, and violated his federal
constitutional rights. None of his
contentions have merit.
contends Rodriguez’s testimony was irrelevant and speculative. We disagree.
“California courts have
long recognized the potential prejudicial effect of gang evidence. As a result, our Supreme Court has condemned
the introduction of such evidence ‘if only tangentially relevant, given its highly
inflammatory impact.’ [Citation.]†(People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 (Samaniego).) “Gang evidence
should not be admitted at trial where its sole relevance is to show a
defendant’s criminal disposition or bad character as a means of creating an
inference the defendant committed the charged offense. [Citations.]â€
(People v. Sanchez (1997)
58
Cal.App.4th 1435, 1449.) “Nonetheless,
evidence related to gang membership is not insulated from the general rule that
all relevant evidence is admissible if it is relevant to a material issue in
the case other than character, is not more prejudicial than probative, and is
not cumulative. [Citations.]†(Samaniego,
supra, 172 Cal.App.4th at p. 1167.)
In cases not involving
the gang enhancement, the California Supreme Court explained, “gang membership
is potentially prejudicial and should not be admitted if its probative value is
minimal. [Citation.] But evidence of gang membership is often
relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang
affiliation—including . . . membership, . . . practices, . . . and the like-can
help prove . . . motive, . . . specific intent, . . . or other issues pertinent
to guilt of the charged crime.
[Citations.]†(
1040, 1049.) “[E]ven where gang
membership is relevant, because it may have a highly inflammatory impact on the
jury trial courts should carefully scrutinize such evidence before admitting
it. [Citation.]†(People
v. Williams (1997) 16 Cal.4th 153, 193; People
v. Avitia (2005)
127
Cal.App.4th 185, 192-193.)
“Motive is always
relevant in a criminal prosecution.†(
760, 767.) “The People are entitled to
‘introduce evidence of gang affiliation and activity where such evidence is
relevant to an issue of motive or intent.’
[Citation.]†(
1550.) “Gang evidence is relevant and
admissible when the very reason for the underlying crime, that is the motive,
is gang related. [Citation.]†(Samaniego,
supra, 172 Cal.App.4th at pp. 1167-1168.)
“[W]here evidence of gang activity or membership is important to the
motive, it can be introduced even if prejudicial. [Citations.]â€
(People v. Martin (1994) 23
Cal.App.4th 76, 81; Martinez, supra,
113 Cal.App.4th at p. 413.) “‘[B]ecause
a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.’
[Citations.]†(
1550.)
“Expert testimony
repeatedly has been offered to show the ‘motivation for a particular crime,
generally retaliation or intimidation’ . . . . [Citation.]†(Gonzalez,
supra, 126 Cal.App.4th at p. 1550.)
“Evidence of gang sociology and psychology is beyond common experience
and thus a proper subject for expert testimony.
[Citation.]†(
413.) Gonzalez is instructive.
In Gonzalez, supra, 126 Cal.App.4th at page 1542, defendant was
convicted of attempted premeditated murder and assault by a state prisoner with
multiple enhancements. At trial, a gang
expert testified in detail about the activities of the Mexican Mafia. On appeal, defendant claimed the expert’s
testimony went to defendant’s subjective intent and knowledge because he
equated the behavior of all Hispanic gang members with the behavior of
defendant. The appellate court disagreed
and affirmed the judgment. (
court noted that expert testimony has repeatedly been offered “to show the
‘motivation for a particular crime, generally retaliation or
intimidation.’†The court concluded the
trial court did not abuse its discretion in admitting the expert’s testimony
because the prosecutor did not ask the expert any hypothetical questions based
on the facts of the case and the expert’s testimony did not embrace defendant’s
particular knowledge or intent. The
court opined, however, the expert’s testimony addressed the motives of
jailhouse gang members in general, and this evidence, coupled with evidence
defendant was a gang member, may have led the jury to the conclusion defendant
possessed the intent to kill. The court
concluded this evidence was admissible.
(Gonzalez, supra, 126
Cal.App.4th at pp. 1549-1551.)
Here, because we must
give great deference to the trial court’s decision concerning the admission of
evidence, we cannot conclude the court abused its discretion in admitting
Rodriguez’s testimony on the issue of Martinez’s motive and intent. Although it does not take expert testimony to
understand that a young man may come to the aid of a male friend in a bar, we
cannot second guess the court’s reasoned decision the jury would be aided by
Rodriguez’s testimony in this case. We
agree a reasonable juror may have difficulty understanding the nature of what
transpired. Without provocation, the
silent Martinez pounced on Valencia and brutally and severely stabbed him three
times. Such a response exceeds what
many, if not most, jurors would consider appropriate. Yes, the jury would certainly have understood
had Martinez stood up, got between Vera and Valencia, pushed him, or even
punched him. But that is not what
occurred.
The jury heard testimony
that after the emotionally wounded boyfriend approached his competition, the
competition’s friend stabbed the boyfriend three times. This takes some explaining. Rodriguez’s testimony about how even
associate gang members back up each other explained to the jury why a gang
member would react in such a severe manner to such an innocuous encounter. Rodriguez’s testimony informed the jury how
Martinez the gang member is “wired†to stand up for associate gang members. Thus, the court properly admitted Rodriguez’s
testimony on the issue of Martinez’s motive and intent.
Martinez concedes there
was evidence he was a self admitted member of Westside Santa Barbara. He complains though that Rodriguez’s
testimony lacked foundation and was speculative. He asserts the
following: (1) Rodriguez did not have
any knowledge of Westside Santa Barbara; (2) Martinez was not a member of 18th
Street gang and did not commit crimes with that gang; (3) The incident was not
a gang confrontation because Valencia was not a gang member and neither was it
in Martinez’s or Vera’s gang’s territory or an area they were known to commit
crimes;
(4)
Westside Santa Barbara and 18th Street were not affiliated; (5) Martinez did
not claim a gang during the incident; (6) Martinez did not possess the knife
for a gang-related purpose; and (7) The incident did not garner respect for
either gang.
“Expert testimony may
also be premised on material that is not admitted into evidence so long as it
is material of a type that is reasonably relied upon by experts in the
particular field in forming their opinions.
[Citations.] Of course, any
material that forms the basis of an expert’s opinion testimony must be
reliable. [Citation.] For ‘the law does not accord to the expert’s
opinion the same degree of credence or integrity as it does the data underlying
the opinion. Like a house built on sand,
the expert’s opinion is no better than the facts on which it is based.’ [Citation.]
[¶] So long as this threshold
requirement of reliability is satisfied, even matter that is ordinarily
for an expert’s opinion testimony.†(
14
Cal.4th 605, 618.)
Rodriguez testified he was a police officer in Los Angeles and Orange counties,
had been in the gang unit for five years, and had testified over 24 times. He explained he had academic and field
training and participated in hundreds of gang investigations and dozens of gang
prosecutions. He was intimately familiar with Hispanic
Street gangs, including 18th Street gang and Westside Santa Barbara. Although it is true Rodriguez was not
familiar with Westside Santa Barbara until this case, the evidence established
Westside Santa Barbara was a Hispanic gang and Martinez was a member of that
gang. Nor is there any dispute Martinez
and Vera, another undisputed gang member, were friends and associates. What was important about Rodriguez’s
testimony is that both Martinez and Vera were members of Hispanic gangs, and
how gang members react when they feel disrespected. Rodriguez’s testimony provided the jury with
context to help understand why Martinez, acting as Vera’s back up, would commit
such a nonsensical act.
Many of Martinez’s
complaints concern factors seen in cases where a prosecutor does allege gang
charges, i.e., Valencia was not a gang member, the incident was not in
Martinez’s or Vera’s gang territory, Martinez did not possess the knife for a
gang purpose, and the offense did not garner respect for the gang. But this is not why the prosecutor offered
Rodriguez’s testimony. The prosecutor
offered the testimony to explain how gang members react to being
disrespected.
Martinez relies on
843, to suggest Rodriguez’s testimony was mere speculation. Ramon
is inapposite. In that case, the expert
testified defendant committed the offenses with the specific intent to promote,
further, or assist a criminal street gang based solely on the facts he was with
another gang member and they were in claimed gang territory. The court concluded there was no evidence
from which the expert could discern whether they were acting on their own
behalf or on behalf of the gang. (
Martinez and Vera were active participants in a Hispanic criminal street gang
and Martinez reacted in a manner consistent with Rodriguez’s experience
investigating gang crimes. Rodriguez’s
testimony was relevant and rooted in the evidence.
argues Rodriguez’s testimony was inflammatory and unduly prejudicial. Again, we disagree.
The admission of gang
evidence over an Evidence Code section 352 objection will not be disturbed on
appeal unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a miscarriage of
justice. (People v. Brown (2003) 31 Cal.4th 518, 547.) “The prejudice which exclusion of evidence
under Evidence Code section 352 is designed to avoid is not the prejudice or damage
to a defense that naturally flows from relevant, highly probative
evidence. ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The stronger
the evidence, the more it is “prejudicial.â€
The “prejudice†referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant
as an individual and which has very little effect on the issues. In applying section 352, “prejudicial†is not
synonymous with “damaging.â€â€™
[Citation.]†(
638.)
gang evidence has the potential to be extremely prejudicial, here Rodriguez’s
testimony did not rise to that level.
Rodriguez’s testimony was limited to his review of Martinez’s and Vera’s
gang history and the culture and habits of Hispanic criminal street gangs. He testified generally concerning respect,
claiming a gang, and backing up associate gang members. He did not provide any specific information
about Martinez or Westside Santa Barbara.
With the exception of a few brief answers concerning Martinez’s
membership in a criminal street gang, nearly all Rodriguez’s testimony
concerned the culture and habits of all Hispanic street gangs. Based on Rodriguez’s brief, innocuous
testimony, we conclude the trial court properly ruled the evidence’s probative
value outweighed its prejudicial effect.
contends Rodriguez’s testimony was unduly prejudicial because this was a close
case and Rodriguez provided the jury with damning evidence that Martinez was a
violent gang member predisposed to commit murder. Not so.
Absent fundamental
unfairness, state law error in admitting gang evidence is subject to the
traditional test under People v. Watson
(1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable the verdict
would have been more favorable to the defendant absent the error. (People
v. Partida (2005) 37 Cal.4th 428, 439 (Partida).)
Here, we cannot conclude
it is reasonably probable the result of the proceeding would have been
different had Rodriguez not testified.
Valencia testified Martinez was the first person to hit him and the
first punch landed on his neck. Murdock,
who was behind Valencia, saw Martinez strike Valencia on the chin or neck. Williams testified she saw Martinez with his
arm raised and a knife in his hand stab Valencia three times. Forensic evidence revealed Valencia was a
major contributor to blood on Martinez’s exterior shirt sleeve. Finally, the trial court instructed the jury
it could consider Rodriguez’s testimony for the limited purposes described
above.
In arguing the
Rodriguez’s testimony was unduly prejudicial, Martinez asserts the
following: (1) Neither Valencia nor
Murdock saw a knife in Martinez’s hand; (2) Williams was intoxicated and
looking through a window; (3) Williams’ testimony did not match her statements
to officers immediately after the incident; and (4) Forensic testing revealed
Valencia’s blood on Vera’s hand. There
was evidence to support all these assertions, but that is not the focus of our
inquiry. Our inquiry is the
following: Had Rodriguez not testified,
is it reasonably probable the jury would have rendered a different
verdict? We think not as the evidence
established Martinez hit Valencia three times in the upper body, while Vera
punched Valencia “square in the nose†before Murdock forcefully separated
Valencia and his attackers and noticed blood gushing from Valencia’s neck. Therefore, we conclude there was sufficient
evidence Martinez committed deliberate and premeditated attempted murder when
he stabbed Valencia three times, the first of which landed in one of the most
vital areas, the neck.
complains admission of Rodriguez’s testimony violated his federal
“[T]he admission of
evidence, even if erroneous under state law, results in a due process violation
only if it makes the trial fundamentally
unfair. [Citations.]†(Partida,
supra, 37 Cal.4th at p. 439.) “‘Only
if there are no permissible inferences the jury may draw from the evidence can
its admission violate due process. Even
then, the evidence must “be of such quality as necessarily prevents a fair
trial.†[Citation.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.’ [Citation.] ‘The dispositive issue is . . . whether the
trial court committed an error which rendered the trial “so ‘arbitrary and
fundamentally unfair’ that it violated federal due process.†[Citation.]’
[Citation.]†(
149
Cal.App.4th at pp. 229-230.)
As we explain above,
Rodriguez had extensive experience investigating gang-related crimes. His testimony was relevant and rooted in
facts shown by the evidence.
Additionally, the evidence’s probative value outweighed its prejudicial
effect, as it was limited to Martinez’s gang membership and the culture and
habits of Hispanic criminal street gangs.
This is distinguishable from Albarran,
where the gang expert testified extensively concerning gang evidence that had
no relevance and only served to inflame the jury. Thus, we conclude Martinez’s due process
rights were not implicated.
DISPOSITION
The judgment is
affirmed.
O’LEARY,
P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
name="_ftn1" title="">[1]
All further
statutory references are to the Penal Code, unless otherwise indicated.
name="_ftn2" title="">[2]
The information
charged Vera with these counts and two additional counts,
street terrorism (§ 186.22, subd. (a)) (count 3), and
aggravated assault (§ 245,
subd. (a)(1)) (count 4).
