P. v. Torres
Filed 8/24/12 P. v.
Torres CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
PANFILO TORRES et al.,
Defendants and Appellants.
C060837
(Super.
Ct. No. 06F02757)
A birthday
celebration degenerated into a violent argument over the relative merits of
rival gangs. Shouting turned into
fighting, and fighting turned into gunfire, resulting in the death of a gang
member. An amended information charged
defendants Edwin Arthur Stevenson and Panfilo Torres with murder for the
benefit of a criminal street gang. A jury found Stevenson guilty of murder and
Torres guilty of the lesser included offense of assault with a firearm. The court sentenced Stevenson to 60 years to
life in state prison and Torres to
14 years.
Stevenson appeals,
contending insufficient evidence supports his
admitting gang video recordings, comments made during voir dire tainted the
jury pool, instructional error, and sentencing error. Torres appeals, arguing instructional error
and sentencing error. We shall direct
the abstract of judgment in Stevenson’s case be corrected to reflect accurate
presentence credits and to delete the 10 year consecutive sentence for the gang
enhancement on count one; in all other respects, we shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In this disturbing
reprise of urban violence that afflicts our communities, the volatile
combination of alcohol, drugs, and gang rivalry at a birthday celebration
yielded tragic results. In the end, the
victim, Hector “Bam Bam†Barrera, died of gunshot wounds. Torres shot Barrera in the stomach; Stevenson
shot Barrera in the head and back.
An information
charged Stevenson and Torres with murder and alleged both defendants personally
used a firearm (count one); committed the offense for the benefit of a criminal
street gang; and personally discharged a firearm, causing great bodily
injury. (Pen. Code, §§ 187, subd. (a),
12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1), 12022.7.)
possessing a firearm in violation of probation (count three) and possession of
a firearm by a minor ward of the court (count four). (§ 12021, subds. (d), (e).) Codefendant Kenneth Ray Andersen III was also
charged with murder (count one), possession of a firearm by a convicted felon
(count two), and unlawful discharge of a firearm at an inhabited dwelling
(count five). (§§ 12021, subd. (a)(1),
246.) A jury trial followed.
The Party
In the early
morning hours of March 26, 2006, Barrera threw his nephew, Mario Gonzales, a
birthday party. A few days before the
party, Stevenson was standing on a sidewalk when a group of unidentified men
pulled up and began shooting.
Stevenson’s eye was wounded. That
did not prevent him from joining the party for Gonzales, which was attended by
about 30 people, including Barrera’s girlfriend, Heather Boettcher, Andersen,
and Torres. Barrera was a member of the
Southside Park gang, a subset of the Norteño street gang. Dancing and drinking ensued, with Barrera,
Andersen, and others rapping to music in a circle in the living room.
Nick Morales, a
member of the Southside Park gang, also attended. On a second-floor balcony, Barrera and
Morales spoke with Raymond Flores, a member of the Oak Park gang. Barrera belittled the Oak Park gang to
Flores, saying the gang was weak and would disappear. Barrera and Morales also told Flores that
Southside Park was a superior gang and advised him to join.
These taunts
devolved into a verbal altercation over which gang was better. Torres joined in and began arguing with
Barrera. Torres told his friends Manuel
Paz and Flores to wait downstairs, and the duo complied.
Torres and Barrera
continued to argue, and Barrera hit Torres in the face. Barrera and Morales began fighting with
Torres.
People from
downstairs came up to join the battle and began screaming out their gang
loyalties. Joshua Allen, a Southside
Park gang member, rushed to Barrera’s defense.
Andersen came upstairs with a gun and told everyone to “Break it
up. Let ’em fight one on one.â€
Torres pulled out
a semiautomatic handgun. Torres pointed
the gun at Barrera and shot him in the stomach as Barrera struggled with
Flores. Everyone fled and Barrera began
swinging wildly, hitting several people.
Stevenson left and got his rifle out of his car.
Barrera’s
girlfriend, Boettcher, heard the fight and found Barrera walking hunched over
as people punched at him. Boettcher
pulled Barrera away, and he told her he had been shot. He pulled up his shirt, revealing a gunshot
wound below his chest.
Boettcher went
outside to find Barrera’s assailant. She
heard someone shout “Oak Park nigga, Oak Park nigga.†The wounded Barrera walked outside and said,
“What’s up, Southside Park,†and raised his arms.
Stevenson and
Barrera began to argue. Stevenson
reached into a gray 1972 Chevrolet Monte Carlo and retrieved his M-1 carbine
rifle. Stevenson yelled “West Nick†and
cocked his rifle.
Barrera tried to
get back into the house. Stevenson fired
the rifle four to five times. Barrera
was hit by several shots and fell.
Following the
shooting, Torres left, carrying his gun.
Torres arrived at a residence, and was joined shortly afterwards by Stevenson
and Andersen. Andersen gave Flores his
gun.
At the party,
Boettcher told Barrera’s nephew, Gonzales, to get a towel to stanch Barrera’s
bleeding. Boettcher tried to perform
cardiopulmonary resuscitation before the ambulance arrived.
The Aftermath
Later that day,
Torres and Flores picked up Fabian Williams in the gray Monte Carlo. They went to the home of Sergio Ramirez,
where they began sanding, and later spray painting, the car. Before they could finish, the police arrived.
The officers directed
the group to sit on the curb. Williams
held a jacket across his lap. When an
officer attempted to handcuff Williams, Williams began to stand up. The officer directed him to sit back down on
the curb, and as he did so, a black .45-caliber, semiautomatic handgun fell to
the ground. The officers found a chrome
colored, nine-millimeter handgun in the back seat of the Monte Carlo.
Approximately six
weeks later, officers arrested Stevenson.
Stevenson stipulated to owning a .30-caliber carbine rifle, a violation
of his probation grant. He also
stipulated he had been adjudged a ward of the Sacramento County Juvenile Court
for an assault likely to produce great bodily injury. (§ 245, subd. (a)(1).)
The Autopsy
The autopsy on
Barrera revealed four gunshot wounds.
The first was a graze wound to the left side of his scalp. The bullet did not enter the skull but caused
bleeding on Barrera’s brain.
The second bullet
entered near Barrera’s midabdomen. The
bullet traveled through the tissue beneath the skin and exited on the lower
right side of the abdomen. The third
bullet entered Barrera’s midback. The
bullet pierced the muscles of the back and lodged between the shoulder blade
and the top of the arm bone.
The fourth gunshot
wound was fatal. It entered Barrera’s
body through the right lower back, traveling upward and hitting his liver and
lung. The bullet hit the right bronchus,
which brings air to the lung on the right side, and the trachea, or main
airway, and lodged in Barrera’s neck.
Stevenson’s Defense Case
Gabriel Aguilar
testified he did not believe Barrera belonged to a gang. Aguilar, who attended the party, stated
several people were fighting on the porch.
Barrera was being hit by several people.
After the fighting
began, Aguilar turned off the lights because he was “afraid there could be
shots fired.†He went outside in an
effort to calm people down. According to
Aguilar, the party had nothing to do with gangs, but was merely a birthday
party.
Aguilar testified
Gonzales had a gun pointed at his head, but he could not identify who pointed
the gun. Aguilar did not see anyone else
with a gun. On cross-examination,
Aguilar could not identify any of the defendants as being present at the party.
Stevenson
testified in his own behalf. Stevenson
spoke of his parents, who died of alcohol and drug abuse when he was a young
child. He lived with his grandparents
until they died in 2004.
After his father
died, Stevenson, 10 years old, joined the Norteños, since “[i]t seemed like it
was the thing to do.†When he was 13,
Stevenson’s grandparents moved to a Ukiah reservation. While living on the reservation, Stevenson
continued to be active in Native American cultural activities, as he had been
all of his life.
After the death of
his grandparents, Stevenson returned to Sacramento. He was 15 years old. He spent time in custody on an outstanding
warrant and in foster care. Stevenson also
lived with Torres; the two had grown up together.
Stevenson did not
think Torres was a gang member even though Torres had “West Nick†tattooed on
both of his hands. Stevenson and Torres
committed crimes together.
In the weeks
before the party, Stevenson carried a gun for protection after being the target
of several shootings. A few days before
the party, Stevenson was the victim of the drive-by shooting that wounded his
eye.
Prior to going to
the party, Stevenson drank alcohol and took cocaine and Ecstasy. Stevenson went to the party with a group of
people. After hearing gunshots, he got
his rifle. According to Stevenson,
someone was aiming a gun at the crowd, so he turned and shot at that
person. He shot two or three times
because someone was shooting at him. He
shot to scare, not to kill, and denied the shooting was gang related.
After firing the
rifle, Stevenson left in a car but could not remember what he did with the
rifle. Stevenson was later arrested in
Ukiah, where he had gone to scatter his grandmother’s ashes.
James Hernandez, a
professor of criminal justice, testified on Stevenson’s behalf. According to Hernandez, Norteños were “an
identity,†not a gang. Identifying
oneself as a Norteño could mean the person was a gang member or was merely from
Northern California. Some children that
are removed from a stable family setting use gangs as surrogate families.
An expert in
pathology, Curtis Rollins, also testified for Stevenson. Rollins reviewed the autopsy photographs and
report. The angle of the entry wound on
Barrera’s abdomen led Rollins to opine that the person who shot Barrera was a
few steps lower than the balcony.
Glenna Gabourie,
who was staying at a residence near the party, testified she heard only one
“shotgun blast†and heard at least three separate groups of shots. Another neighbor testified she heard three
different sets of gunshots.
Stevenson’s half
brother testified regarding different Native American activities in which his
family took part. He testified Stevenson
was at home when their father died in the backyard of an overdose; Stevenson was
9 or 10 years old.
A clinical psychologist
also testified regarding Stevenson’s Native American background and family
connections. The psychologist performed
a psychological assessment of Stevenson.
According to the psychologist, the trauma of finding his father dead
when he was 9 or 10 years old caused Stevenson to experience flashbacks,
nightmares, and anger. In response,
Stevenson began to steal and became violent.
The psychologist believed Stevenson’s psychological traumas, substance
abuse, uprooting, and transplantation into an Hispanic gang culture increased
his sensitivity to perceived threats.
Torres’s Defense Case
Torres testified
that he is a member of the West Nicholas, or West Nick, subset of the Norteño
gang. Prior to joining West Nick, Torres
belonged to the Franklon gang.
In 2005 Torres,
his brother, and Stevenson left the Franklon gang and started the West Nick
gang. Tensions erupted between the old
and new gangs over drug profits. Torres
sold drugs for both gangs.
Torres had never
met Barrera prior to the party and was unaware of any rivalry between the
Southside Park and West Nick gangs.
Torres owned the .45-caliber handgun confiscated by officers following
the shooting. He got the gun for
protection after Stevenson was shot by members of the Franklon gang.
The night of the
party, Torres drank beer and “could have†smoked marijuana. Andersen told Torres about the party. Torres brought a loaded handgun for
protection and rode to the party in a Monte Carlo. Torres found Andersen and Stevenson at the
party.
Torres went up to
the crowded balcony. He heard
partygoers, including Barrera and Flores, saying Southside Park was a better
gang and that Oak Park would not exist much longer. Afraid the situation would worsen, Torres
wanted to leave. He told Nick Morales
that if there was a problem he and his friends would leave.
Barrera took
exception to this and began throwing punches, hitting Torres in the face. Torres fell and Morales began hitting
him. Morales, Barrera, and another
person punched Torres.
While Barrera was
on top of him, Torres pulled the gun from his waist, pointed it at Barrera, and
shot him. Torres aimed “toward
[Barrera’s] stomach and downwards.â€
Torres shot Barrera because he believed he was in danger.
Torres then aimed
at the ceiling and shot another round.
People scattered and Torres ran to a dark-colored Honda and asked the
driver to take him to his mother’s house.
Torres did not hear any other gunshots, nor did he see Stevenson with a
gun.
When arrested the
following day, Torres gave officers a fake name and fake birthday. He lied during his interview with the police.
Rebuttal
Henry Jason, a
Sacramento police detective, interviewed Torres the day after the
shooting. Torres told Jason he was
involved in a fight when he fired his gun at the party.
Verdict and Sentencing
The jury found
Stevenson guilty of counts one and three.
As to count one (murder), the jury found Stevenson personally used and
discharged a firearm, causing great bodily injury or death. The jury also found Stevenson was a principal
in personally discharging and using a firearm, causing great bodily injury to a
nonaccomplice. The jury also found true
the allegation that Stevenson committed count one for the benefit of a criminal
street gang. The jury found Torres
guilty of the lesser included offense to count one of assault with a firearm,
and found Torres personally used a firearm during the commission of the
offense.
The court
sentenced Stevenson to 60 years to life in state prison: 25 years to life on count one, plus an
additional, consecutive 25 years to life on the section 12022.53,
subdivision (d) enhancement, plus an additional, consecutive 10 years for
the section 186.22, subdivision (b)(1) enhancement. The court also sentenced Stevenson to the
midterm of two years on count three, but ordered the term to run concurrently
with the term imposed on count one. The
court sentenced Torres to 14 years in state prison: the upper term of four years on count one,
plus an additional 10 years for the section 12022.5, subdivision (a)
enhancement.
Both defendants
filed timely notices of appeal.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE—MURDER
Stevenson
challenges the sufficiency of the evidence in support of his conviction for
first degree murder. According to
Stevenson, the evidence fails to support a conviction based on either
premeditation or lying in wait.
Standard of Review
In reviewing a
defendant’s challenge to the sufficiency of the evidence, we review the whole
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence.
Substantial evidence is evidence that is credible, reasonable, and of
solid value, such that a reasonable jury could find the defendant guilty beyond
a reasonable doubt. (
11 (Rodriguez).)
We do not reassess
the credibility of witnesses, and we draw all inferences from the evidence that
supports the jury’s verdict. (
1355, 1382.) Unless the testimony of a
single witness is physically impossible or inherently improbable, it is
sufficient to support a conviction. (
1181.)
In considering the
sufficiency of the evidence of premeditation and deliberation, we consider (1)
events before the murder that indicate planning; (2) motive, specifically
evidence of a relationship between the victim and the defendant; and
(3) method of the killing that is particular and exacting, and evinces a
preconceived design to kill. (
26-27 (Anderson).) These factors provide a framework to aid in
appellate review. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
When evaluating
the evidence of lying in wait we need not find defendant lay in wait for any
particular length of time. Instead, we
determine whether the duration reveals a state of mind equivalent to
premeditation or deliberation on defendant’s part. (People
v. Stanley (1995) 10 Cal.4th 764, 794.)
The court
instructed the jury on the requirements for premeditated murder. The instructions read, in part: “A defendant has been prosecuted for first
degree murder under two theories: (1)
the murder was willful, deliberate, and premeditated and (2) the murder was
committed while lying in wait or immediately thereafter. [¶] . . . [¶] A defendant is guilty of first degree murder
if the People have proved that he acted willfully, deliberately, and with
premeditation. The defendant acted
against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that
caused death. [¶] The length of time the person spends
considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount
of time required for deliberation and premeditation may vary from person to
person and according to the circumstances.
A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly.
The test is the extent of the reflection. The length of time alone is not determinative.â€
The court further
instructed the jury on murder by lying in wait:
“The defendant murdered by lying in wait if: [¶]
1. He concealed his purpose from the person killed; [¶]
2. He waited and watched for an
opportunity to act; [¶] and [¶] 3. Then, from a position of
advantage, he intended to and did make a surprise attack on the person
killed. [¶] The lying in wait does not need to continue
for any particular period of time, but its duration must be substantial enough
to show a state of mind equivalent to deliberation or premeditation. [¶] A
person can conceal his or her purpose even if the person killed is aware of the
person[’]s physical presence. [¶] The concealment can be accomplished by ambush
or some other secret plan.â€
Discussion
Stevenson argues
the evidence viewed in the light most favorable to the judgment discloses that
Barrera was the initiator and aggressor of the sudden quarrel and resulting
violence. Stevenson contends he fatally
shot Barrera in the midst of a sudden melee, not as the result of premeditation
or lying in wait. The record does not
support Stevenson’s analysis of the evidence.
Ample evidence
supported a finding that Stevenson’s shooting of Barrera was premeditated. Tensions between two gangs, the Vario
Franklin and the West Nick, had been simmering after members of Vario Franklin
broke away to form West Nick.
Previously, Stevenson belonged to the Vario Franklin gang. However, at the time of the shooting
Stevenson had switched allegiances and joined the West Nick gang.
There was some
suspicion that the Vario Franklins were responsible for the shooting in which
Stevenson was injured prior to the party.
As a result of the earlier shooting, Stevenson armed himself with an M-1
rifle for protection.
Stevenson arrived
at the party armed and still suffering wounds from the prior shooting. After Torres shot Barrera, someone outside
shouted “Oak Park nigga, Oak Park nigga.â€
Barrera walked outside and said “What’s up, Southside Park,†and raised
his arms. Barrera began arguing with
Stevenson outside, and Stevenson reached into the car. Very shortly thereafter, Stevenson yelled
“West Nick†and cocked his gun. As
Barrera began to go back into the house, Stevenson fired at him. Stevenson fired four to five times.
Stevenson’s
shooting of Barrera showed premeditation and deliberation. Stevenson arrived at the party bearing wounds
from a previous shooting and armed with a gun.
He fought with Barrera, who belonged to a rival gang, prior to Torres’s
shooting Barrera. After the initial
shooting, the victim and his assailant traded gang shout-outs, and Stevenson
fired at Barrera immediately afterward.
Stevenson shot Barrera numerous times.
Although Barrera
had previously been involved in a fight with Torres and Stevenson, that fight
ended prior to Stevenson’s firing his gun.
Stevenson shot Barrera numerous times after the latter shouted out his
gang’s name and Stevenson responded with his gang affiliation. The course of events belies Stevenson’s claim
that he fired in the heat of passion and without premeditation.
Given Stevenson’s
actions prior to the shooting, his motive for shooting Barrera, and the method
of killing him, we find sufficient evidence in support of Stevenson’s
conviction for first degree murder. (
ADMISSION OF GANG VIDEO RECORDINGS
Torres and
Stevenson both argue the court violated due process by admitting three video
exhibits demonstrating gang activity by a codefendant. Defendants argue the videos were inflammatory
and did not involve either defendant.
Background
The Videos
Three gang videos,
seized from Andersen, were played during the trial. The first video showed a gang fight among
several women as Andersen urges them on.
Various men are depicted making gang hand signs and gloating over the
attack. Andersen shows a gun.
The second video
takes place at a gas station, where men make gang signs, break dance, swear,
and pump up for a fight. Two men show
guns.
The third video
shows a party attended by Andersen, who sports a gun in his waistband and a
bulletproof vest. Men dance to rap
music, show their tattoos, drink beer, and flash gang hand signs.
The Trial Court’s Ruling
In ruling on
Andersen’s motion to suppress, the trial court noted: “It is basically generic-type gang
information that would perhaps later be used to bolster his opinion in any type
of gang case. It gives him information
of how gangs conduct themselves when the law enforcement people are not
around. And certainly can be used by him
in a multitude of ways, in any case.â€
The prosecution
brought an in limine motion to present the three videos. The trial court found the videos
extraordinarily probative on a number of issues. According to the court: “It is probative on things such as
. . . one’s stature within the gang.
What the primary activities of the Norteños might be. It
would certainly lend support as to what their primary activities are. It definitely lends some support to what the
common sign or symbol of the Norteños
are [sic] and whether they exist in
the first place. It lends significant
evidence as to whether there are three or more members of the
organization. Whether it was, at least
at the time of the videotape, an ongoing organization. Whether there is an interrelationship or a
connection between different sets of Norteños. Whether they
are, in fact, different sets of Norteños
that hang around with each other and, at least at times, are friendly and know
each other and are familiar with each other’s monikers.â€
In addition, the
court found the videos would support expert testimony that several Norteño
subsets exist, and that Norteños associate with the color red and the number
14. The videos also proved probative of
the concept of respect being important in the gang culture.
As to an Evidence
Code section 352 analysis, the court determined: “There are portions of –- under the 352
analysis . . . while there may be some prejudicial effect, I would
say that about any piece of evidence that I would expect a prosecutor to offer,
that it has prejudicial effect to it.
[¶] The question is whether the
probative value of the evidence they seek to admit is substantially outweighed
by a danger of prejudice, misleading the jury, undue consumption of time, and whether
it has such a spillover effect that the defendants would be denied their right
to a fair trial. And I don’t find that
to be the case at all under the circumstances of this.â€
As to the absence
of Stevenson and Torres in the videotapes, the court found: “To the extent that [Stevenson and Torres]
are not in the videotape, I suppose that is of some value to you because they
are not shown doing these type of things.
[¶] To the extent Mr. Andersen
is, he’s the one that chose to place himself on the videotape doing the things
that he did do. . . . I will
say that it is a revealing insight into the way gang members conduct themselves
when surrounded by fellow gang members, it is nothing more than that. It is revealing. [¶] It
is for that reason, extraordinarily probative of the way gang members think,
act, conduct themselves and is admissible.â€
The court went on
to exclude the last two minutes of the gas station video as not sufficiently
probative because it focused on a woman dancing. However, the court found the “content of the
party scene where Mr. Andersen is prominently displayed not only throwing the
Diamond signs but throwing the Diamond signs with fellow gang members, flashing
gang signs, yelling gang statements and indicating what could be attributed
[to] the gang mentality, that is certainly probative and supportive of what I
would expect a gang expert to say in a case like this. And it is directly on point to a
[section] 186.22[, subdivision] (b)(1).â€
Stevenson moved to
exclude the videos under Evidence Code section 352. The court denied the motion.
Stevenson
requested a limiting instruction, informing the jury that it could not consider
the videos against him. In denying the
request, the court stated: “It is
certainly admissible against Mr. Stevenson as evidence that the Norteños exist, that the common
sign or symbol is there, three or more members of an organization, and all the
things I previously stated. [¶] That allegation has to be proved against him
as it does to each of the defendants. So
whether they can actually connect him to this organization, it is not going [to
be] done solely by this videotape. But
the supporting information as to whether this group exists, whether it was
ongoing and whether it qualifies under [section] 186.22[, subdivision] (b)(1),
that tape supports that notion; not necessarily whether your client is part of
it.â€
However, the court
also solicited a draft limiting instruction from each of the defendants,
suggesting an appropriate manner in which the jury could consider the
evidence. No such instruction appears in
the record.
Discussion
Under Evidence
Code section 352, the court has the discretion to determine the admissibility
of evidence, weighing the probative value of that evidence against its prejudicial
impact. We will not disturb the court’s
exercise of its discretion unless we find the court exercised that discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a
miscarriage of justice. (
Stevenson argues
there is no evidence he was involved in, participated in, or even knew of the
existence of the gang videos. According
to Stevenson, the gang videos were inflammatory, depicting brutal violence and
gang members engaging in inflammatory conduct.
Stevenson contends: “Given the
lack of relevance to appellant Stevenson and the inflammatory nature of the
video recordings, admitting the challenged evidence was an abuse of
. . . discretion.â€
Though the videos
may not have been “extraordinarily probative,†as the trial court believed,
they were not completely lacking in relevance to Stevenson’s case. The videos revealed the Norteños have common identifying
symbols, wear gang attire, and use a common gang slang. Contrary to the views of the defense expert,
it is not just a regional identity. The
brandishing of weapons establishes criminal conduct on the part of the
gang. The presence of more than three
gang members qualifies the Norteños
as a criminal street gang. Viewed in light
of all the evidence admitted at trial, the video was not unduly
prejudicial. We cannot conclude the
trial court’s exercise of discretion was arbitrary, capricious, or patently
absurd. The court did not err in
admitting the videos.
name="_ftnref4" title="">[4]
Comments Made During Voir Dire
Stevenson argues
comments made by prospective jurors during voir dire tainted the jury pool,
requiring reversal. Torres joins in this
argument.
Background
Specifically,
Stevenson objects to statements made by prospective juror E.W. during voir
dire. E.W. worked as a correctional
officer from 1983 through 1986. He
interacted with gang members in the course of that employment.
The court asked if
E.W. could set aside his experiences and make a decision based on the facts of
the case. E.W. responded that he
believed he could set aside his experiences, but “What I do not believe I can
do is to judge the veracity of testimony of a gang member because I found them
from personal experience to not be trustworthy.â€
The court
asked: “What I am concerned about is the
mere designation of an individual as a quote, ‘gang member.’ [¶]
Does that cause you to immediately believe that they are going to lie to
you?†E.W. responded: “I would find it difficult to have faith in
their testimony.â€
The court continued: “My concern is making sure that both the
defendants and the prosecution have 12 jurors that can listen carefully to
every witness, not just law enforcement, not just gang members, not just
criminalists, not just coroners, but can collectively listen to all the
evidence and judge it fairly. [¶] Do you believe you can do that? If not, that’s fine. I just need to know.†E.W. answered: “I do not believe so, your Honor.â€
E.W. was excused
for cause. Stevenson’s counsel moved for
a mistrial based on E.W.’s comments, arguing the comments may have tainted the
jury pool. Torres’s counsel joined in
the motion.
The court denied
the motion, noting nothing in E.W.’s comments could be construed as expert
opinion. The court also stated: “There are certainly jurors throughout this
jury selection process who have offered a variety of opinions that
. . . could be construed in the way that you have suggested. And if that were the case, it would be
difficult to ever have a juror give an answer that was a cause answer and not
be the grounds for them to be -- a new panel to be brought in. [¶] It
was an isolated response, clearly evidencing his particular experience with
state prison inmates that were also gang members that he personally came in
contact with and in no way a classification of every gang member as being
someone who is dishonest. [¶] Moreover, each of the jurors that’s [
contrary to his belief, they will allow each witness as they take the stand to
be evaluated based on the testimony that the witnesses provide, whether they
are police officers, judges, experts, or gang members. [¶] I
am . . . completely confident . . . in the responses that our jurors
have given and I believe they have given answers and under numerous questions
about their ability to do that and they have indicated that they can.â€
Discussion
A defendant has
the constitutional right to a fair and impartial jury. (People
v. Wheeler (1978) 22 Cal.3d 258, 265.)
The trial court possesses great discretion in conducting jury
selection. We will not reverse the
court’s determination unless the exercise of that discretion has resulted in a
miscarriage of justice. (Code Civ.
Proc., § 223.)
We defer to the
court’s determination as to whether an individual juror harbors prejudice and
reverse only on a clear showing of an abuse of discretion. (People
v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) In addition, the court possesses broad
discretion to determine whether or not bias or prejudice has so infected the
jury panel as to require discharge of the entire panel. A few inflammatory remarks made by
prospective jurors do not automatically necessitate such a drastic remedy. Discharging an entire jury panel is a remedy
reserved for “the most serious occasions of demonstrated bias or prejudice,
where interrogation and removal of the offending [jurors] would be insufficient
protection for the defendant.†(
889 (Medina).)
Stevenson contends
prospective juror E.W., who stated he formerly worked as a correctional
officer, opined, based on that experience, that gang members are
untruthful. This comment, Stevenson
argues, coupled with biased comments of other prospective jurors, precluded the
seating of a fair and impartial jury.
E.W. made his
comments during a voir dire that took place in 2008. E.W. testified he served as a correctional
officer from 1983 to 1986, 22 years earlier.
In his testimony, E.W. made generic references to gang members; he did
not tie his suspicions to any particular gang.
In addition, when
asked by the trial court whether he could listen to the evidence and render a
fair judgment, E.W. answered he could not.
Such a response set E.W. apart from other prospective jurors who
answered that they could judge the evidence fairly.
E.W.’s statements
regarding gangs pale in comparison to statements made in Medina. In
defendant’s own lawyers believed him to be guilty. Another juror stated the “authorities should
‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’†(Medina,
supra, 51 Cal.3d at p. 888.) The Supreme Court found the trial court did
not err in rejecting a request to discharge the entire jury panel. (Id. at
p. 889.)
Here, however,
Stevenson argues the jurors’ repeated exposure to E.W.’s biased comments,
coupled with comments by other prospective jurors, violated his
trial. In support, Stevenson relies on
495, 498 (Mach).)
In
oral copulation of an eight-year-old girl.
During voir dire, the trial judge elicited from a prospective juror who
was a social worker with state child protective services that she had a certain
amount of expertise in child abuse. The
juror also stated that in every case in which one of her clients reported a
sexual assault, the assault had been confirmed.
The juror had worked as a social worker for three years. The juror stated at least three more times
that she was unaware of any case in which a child had lied about being sexually
assaulted. The court excused the juror
but denied a defense request for a mistrial based on a tainted jury panel. (Mach II,
supra, 137 F.3d at pp. 631-633.)
The Ninth Circuit
Court of Appeals found the defendant’s right to an impartial jury had been
violated: “Given the nature of [the
prospective juror’s] statements, the certainty with which they were delivered,
the years of experience that led to them, and the number of times that they
were repeated, we presume that at least one juror was tainted and entered into
jury deliberations with the conviction that children simply never lie about
being sexually abused. This bias
violated [the defendant’s] right to an impartial jury.†(Mach
II, supra, 137 F.3d at p.
633.)
Here, in contrast,
E.W., during voir dire, stated he had been a correctional officer 22 years
before. He did not claim contemporaneous
experience with gang members or express an opinion about the specific charged
crimes or the defendants. Unlike the
juror in Mach II, E.W. made no
statement that gang members always commit the crimes of which they are accused.
INSTRUCTION ON PRIOR UNCHARGED OFFENSES
Stevenson contends
the trial court erred in instructing the jury pursuant to CALCRIM No. 375
because it allowed jurors to consider evidence of uncharged offenses as
circumstantial evidence to prove motive and gang membership subject only to a
preponderance standard of proof.
Stevenson concedes trial counsel failed to object, but argues this
failure constituted ineffective assistance of counsel. Torres joins this argument.
Background
The court
instructed the jury with CALCRIM No. 375 regarding the evidence of uncharged
offenses: “The People presented evidence
that the defendants committed other offenses that were not charged in this
case.
“The People
presented evidence of other behavior by the defendants that was not charged in
this case.
“You may consider
this evidence only if the People have proved by a preponderance of the evidence
that the defendant in fact committed the offense and acts. Proof by a preponderance of the evidence is a
different burden of proof than proof beyond a reasonable doubt. A fact is proved by a
conclude that it is more likely than not that the fact is true.
“If the People
have not met this burden, you must disregard this evidence entirely.
“If you decide
that a defendant committed the offense and acts, you may, but are not required
to, consider that evidence for the limited purpose of deciding whether or not:
“1. The defendant had a motive to commit the
offenses alleged in this case; or
“2. As evidence of the defendant[’]s membership
in a criminal street gang.
“Do not consider
this evidence for any other purpose except for the limited purpose of motive
and intent or evidence of the defendants’ membership in a criminal street gang.
“Do not conclude
from this evidence that the defendant has a bad character or is disposed to
commit crime.
“If you conclude
that the defendant committed the acts, that conclusion is only one factor to
consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of
the charges in this case. The People
must still prove each element of every charge beyond a reasonable doubt.â€
Discussion
Defendants argue
the instruction improperly applied a preponderance-of-the-evidence standard to
circumstantial evidence of uncharged crimes in violation of due process. According to defendants, “Evidence of
uncharged offenses, like all other circumstantial evidence, is subject to the
constitutionally-imposed burden of proof beyond a reasonable doubt.†Defendants acknowledge that the Supreme Court
in People v. Reliford (2003) 29
Cal.4th 1007, 1016 (Reliford)
rejected a similar argument.
In
No. 2.50.01, a similar jury instruction referring to uncharged acts of other
sexual offenses. The court found: “Nothing in the instructions authorized the
jury to use the preponderance-of-the-evidence standard for anything other than
the preliminary determination whether defendant committed a prior sexual offense
in 1991 involving S.B. The instructions
instead explained that, in all other respects, the People had the burden of
proving defendant guilty ‘beyond a reasonable doubt.’†(Reliford,
supra, 29 Cal.4th at p.
1016.) Therefore, the court determined
the jury understood that a conviction which relied on inferences to be drawn
from the defendant’s prior offense would have to be proved beyond a reasonable
doubt. (Ibid.)
Similarly, nothing
in CALCRIM No. 375 authorizes the jury to apply a preponderance-of-the-evidence
standard for any issue other than the question of whether defendant committed
the uncharged offense. As we are bound
by Supreme Court precedent, we follow Reliford
and reject defendant’s argument. (
57 Cal.2d 450, 455 (Auto Equity Sales).) Defense counsel’s failure to object to the
instruction did not amount to ineffective assistance of counsel.
PRESENTENCE CREDITS
Stevenson argues
his award of presentence credits should be corrected to reflect that he served
942 days in custody rather than 941 days.
The People concede the issue and note the abstract of judgment omits the
award of actual presentence custody credits and states an unauthorized grant of
conduct credit.
Stevenson was
arrested on May 16, 2006. He was
sentenced on December 12, 2008.
Stevenson had served 942 days in custody at the time of
sentencing. Therefore, the abstract of
judgment shall be corrected to reflect 942 days of custody credit.
In addition,
conduct credits are unauthorized for defendants convicted of murder. (§ 2933.2.)
The abstract of judgment shall be corrected to delete the unauthorized
award of conduct credit.
GANG ENHANCEMENT
In a supplemental
brief, Stevenson argues the trial court erred in sentencing him to a
consecutive 10-year sentence on the gang enhancement allegation to count
one. Since he has been convicted of
murder, a crime punishable by a life sentence, the 10 year determinate term
enhancement is unauthorized and must be stricken. The People concede the error.
In
the Supreme Court held that “first degree murder is a violent felony that is
punishable by imprisonment in the state prison for life and therefore is not
subject to a 10-year enhancement under section 186.22[, subdivision]
(b)(1)(C).†(Lopez, at p. 1004.) Instead,
the court found the 15-year minimum parole eligibility term in section 186.22,
subdivision (b)(5) applies. (
Here, Stevenson
was convicted of murder and sentenced to 25 years to life. Therefore, Stevenson’s 10 year determinate
term enhancement should be deleted and replaced with the 15-year minimum parole
eligibility term.
MUTUAL COMBAT INSTRUCTION
Torres contends
the trial court’s instruction as to mutual combat, CALCRIM No. 3471, was not
supported by sufficient evidence. He
argues the instruction given violated his right to a jury trial and due
process, requiring reversal.
Background
The prosecution
requested the mutual combat instruction.
The trial court found the evidence supported the instruction: “It does appear to be, from some of the
testimony in this case, that Mr. Torres was engaged in or could have been
engaged in mutual combat. He was
clearly, from most of the evidence, apparently sucker punched, but there is
some issue as to what his conduct was after he was struck, whether he then was
engaged in mutual combat, with the people he arrived at the party with joining
his side and Mr. Barrera being joined on his side with his fellow party-goers. So it is certainly possible that from the
evidence in this case the jury could determine that this was an issue of mutual
combat.â€
Defense counsel
objected to the instruction, arguing the evidence revealed two distinct
scenarios: either the witnesses did not
see what happened, or Torres was “sucker punched.†Defense counsel also argued Torres’s reaction
to the attack amounted to excessive self-defense rather than mutual
combat. No one, defense counsel stated,
specifically stated Torres engaged in mutual combat; instead, there was just a
general melee.
The court agreed
no evidence pointed to Torres as the initial aggressor and deleted the phrase
“If you decide that the defendant started the fight using nondeadly force and
the opponent responded with such deadly force that the defendant could not
withdraw from the fight†from the instruction.
Defense counsel
renewed his objection to the mutual combat instruction and the court
responded: “I understand your
objection. I just simply disagree with
you, that it’s so clear-cut that there wasn’t some time frame between the
initial below [sic] by Mr. Barerra
and the discharge of the shot. There is
a variety of testimony leading to –- from your client’s testimony, that he shot
immediately -- almost immediately after he was struck and knocked to the ground
to other testimony to indicate this fight was an ongoing thing for a
considerable period of time before the first shot was fired. [¶] So
I think it is simply something the jury is going to have to wrestle with.â€
The jury was
instructed with a modified version of CALCRIM No. 3471: “A person who engages in mutual combat or who
is the first one to use physical force has a right to self-defense only if: [¶]
1. He actually and in good faith
tries to stop fighting; [¶] 2. He indicates, by word or by conduct,
to his opponent, in a way that a reasonable person would understand, that he
wants to stop fighting and that he has stopped fighting; [¶] and
[¶] 3. He gives his opponent a chance to stop
fighting. [¶] If a person meets these requirements, he then
has a right to self-defense if the opponent continues to fight.†The court also instructed pursuant to CALCRIM
No. 3472: “A person does not have the
right to self-defense if he provokes a fight or quarrel with the intent to
create an excuse to use force.â€
Discussion
A mutual combat
instruction is warranted where there is evidence from which a jury could
reasonably believe both fight participants “actually consented or intended to
fight before the claimed occasion for self-defense arose.†(People
v. Ross (2007) 155 Cal.App.4th 1033, 1047, italics omitted (
Combat is not mutual without an agreement or consent to fight, but such
consent may be implied. (
Defendants dispute
the trial court’s assessment that sufficient evidence supported the giving of a
mutual combat instruction. At
painstaking length, they dissect the testimony the People contend supports the
mutual combat instruction. In essence,
defendants argue the evidence that Torres intended to fight before the need for
self-defense arose is equivocal and does not amount to sufficient evidence.
The evidence of
mutual combat may not be overwhelming, and as noted in Ross, supra, 155
Cal.App.4th at p. 1043, the phrase itself is plagued by a “dangerously vivid
quality†masking ambiguity and inaccuracy.
Still, though the combatants here did not expressly agree to fight, the
confrontation between them certainly had elements of a consensual battle between
gang members who served as proxies for their respective gangs. Initially, Barrera belittled Torres’s gang as
weak. Torres told his friends to wait
downstairs, as if to declare that he would take on Barrera individually. The argument intensified, and after Barrera
hit Torres in the face, other gang members ascended from downstairs, shouting
gang slogans. Another gang member,
recognizing the physical contest between Torres and Barrera that was underway,
raised a gun and told everyone to “Break it up.
Let ’em fight one on one.†The
fight continued, during the course of which Torres escalated the struggle by
pulling a gun and shooting Barrera.
This sequence of
events is not at all like the facts presented in Ross, supra, 155
Cal.App.4th 1033, the case relied on by Torres, where the female victim lost
her temper and slapped the defendant, who thereupon punched her in the
face. In Ross, the court declared that “‘mutual combat’ consists of fighting
by mutual intention or consent, as most clearly reflected in an express or
implied agreement to fight. The agreement need not have all the
characteristics of a legally binding contract; indeed, it necessarily lacks at
least one such characteristic: a lawful
object. But there must be evidence from
which the jury could reasonably find that both
combatants actually consented or intended to fight before the claimed occasion
for self-defense arose.â€
name="_ftnref6" title="">[6] Under the facts presented in
express or implied agreement to engage in a mutual fight. Not so here.
Though Torres did not expressly agree to fight, the jury could
reasonably conclude that two gang members impliedly agreed to fight for the
honor of their respective gangs, a trivial matter to an outsider but one of
deadly import to Torres and Barrera. The
court did not err in instructing on mutual combat.
However, even
assuming the court erred, any error was harmless. (People
v. Watson (1956) 46 Cal.2d 818, 835; People v.
Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) CALCRIM No. 3471 informed the jury that a
person who engages in mutual combat has the right to
circumstances. Torres claims the error
was prejudicial because “The court’s having instructed that [Torres] was
entitled to the right to self-defense if he had engaged in mutual combat thus
effectively removed from the jury’s consideration the only defense [Torres]
had.†The argument is without
foundation.
Just prior to
instructing on mutual combat, the trial court instructed on self-defense,
CALCRIM No. 3470. The court
instructed: “The defendant acted in
lawful self-defense if:
“1. The defendant reasonably believed that he was
in imminent danger of suffering bodily injury or was in immediate danger of
being touched unlawfully;
“2. The defendant reasonably believed that the
immediate use of force was necessary to defend against that danger;
“and
“3. The defendant used no more force than was
reasonably necessary to defend against that danger.
“Belief in future
harm is not sufficient, no matter how great or how likely the harm is believed
to be. The defendant must have believed
there was imminent danger of violence to himself. Defendant’s belief must have been reasonable
and he must have acted only because of that belief. The defendant is only entitled to use that
amount of force that a reasonable person would believe is necessary in the same
situation. If the defendant used more
force than was reasonable, the defendant did not act in lawful
self-defense. [¶] . . . [¶]
“If you find that
the defendant received a threat from someone else that he reasonably associated
with Hector Barrera, you may consider that threat in deciding whether the
defendant was justified in acting in self-defense.
“The People have
the burden of proving beyond a reasonable doubt that the defendant did not act
in lawful self-defense. If the People
have not met this burden, you must find the defendant not guilty of Assault
with a Firearm.â€
The court also
instructed the jury with CALCRIM No. 505, informing the jury of a defendant’s
right to defend himself. In addition,
the court gave CALCRIM No. 571, which instructed the jury that it could find
defendant guilty of voluntary manslaughter based on imperfect self-defense if
he had an actual, but unreasonable, belief in the need to use deadly force to
defend himself.
Amidst this
barrage of jury instructions, the court cautioned the jury: “Some of these instructions may not apply,
depending on your findings about the facts of the case. Do not assume just because I give a
particular instruction that I am suggesting anything about the facts. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.†(CALCRIM No. 200.)
Given the court’s
instructions, if the jury found mutual combat did not apply given the facts of
the case, they were told to disregard the reference to mutual combat. However, this did not eliminate from the
jury’s consideration evidence of self-defense or imperfect self-defense, on
which the court also instructed.
We presume the
jury understood and was able to correlate all of the court’s instructions. Jurors are well-equipped to analyze evidence
and reach a rational conclusion. The
jurors’ own intelligence and experience prevents them from relying on a
factually inadequate theory. (
200 Cal.App.3d 1090, 1095; Guiton,
supra, 4 Cal.4th at p. 1131.) Based on the instructions given the jury, we
find any error in instructing on mutual combat harmless.
Definition of Mutual Combat
In a related
argument, Torres contends the court erred in not instructing sua sponte on the
legal definition of mutual combat.
Anticipating a forfeiture claim, he argues counsel performed
ineffectively in failing to request such an instruction.
The trial court
instructed on mutual combat but did not include a definition of mutual
combat. The court also instructed the
jury: “Some words or phrases used during
this trial have legal meanings that are different from their meanings in
everyday use. These words and phrases
will be specifically defined in these instructions. Please be sure to listen carefully and follow
the definitions that I give you. Words
and phrases not specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.â€
(CALCRIM No. 200.)
Torres argues the
court had a sua sponte duty to provide a definition of mutual combat because
that term has a meaning peculiar to the law.
In December 2008, subsequent to this trial, CALCRIM No. 3471 was revised
to include a definition of mutual combat:
“A fight is mutual combat when
it began or continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim to self defense arose.â€
The instruction was
added following the appellate decision in Ross,
supra, 155 Cal.App.4th 1033. In Ross,
the court found the everyday meaning of mutual combat did not adequately convey
what mutual combat means in the context of self-defense: “If A walks up to B and punches him without
warning, and a fight ensues, the fight may be characterized as ‘mutual combat’
in the ordinary sense of those words.
But as this example demonstrates, the phrase so understood may readily
describe situations in which the law plainly grants one of the combatants a
right of self-defense. In the case
above, B would be entitled under the law of this state to punch A immediately,
without further ado, provided he acted out of an actual and reasonable belief
that such action was necessary to avert imminent harm [citation], and he used
no more than reasonable force [citation].
That right cannot be forfeited or suspended by its very exercise. Yet that is the effect of relying on the
everyday meaning of ‘mutual combat.’ B’s
entitlement to strike back in self-defense would then be conditioned, absurdly,
on his first refusing to fight, communicating his peaceable intentions to his
assailant, and giving his assailant an opportunity to desist. [Fn. omitted.] By then, of course, his assailant might have
beaten him senseless.†(
The court in
of mutual combat: “not merely a
reciprocal exchange of blows but one pursuant
to mutual intention, consent, or agreement preceding the initiation of hostilities. . . . In other words, it is not merely the
In
an instruction on mutual combat that had no evidentiary basis; there was no
evidence from which the jury could reasonably conclude that when blows were
exchanged, the defendant and his alleged victim had formed the intent to engage
in a fight. Indeed, as the appellate
court observed, “The trial court, which twice saw the witnesses give their
accounts of the incident, appeared to conclude both times that there was
supra, 155 Cal.App.4th at p. 1050.)
the instruction at the second trial based upon the prosecutor’s insistence that
he required it for tactical reasons, a reason which the appellate court thought
was clearly erroneous. Rejecting the
notion that the jury would have ignored an inapplicable instruction, the court
noted “the record affirmatively shows that jurors did not ignore the
instruction. They petitioned the court
in vain to clarify it,†thereby demonstrating they misunderstood it. (Id.
at p. 1056.)
The court in
elaboration of an instruction could result in forfeiture of the issue on
appeal. The issue was not forfeited in
instruction was inappropriately given and the confused jury’s request for
guidance was denied by the trial court.
Unlike the situation faced in Ross,
the instruction was appropriate here, and neither counsel for Torres nor the
jury sought clarification of it. At
most, all that can be said of the instruction is that greater clarity could
have been provided had mutual combat been defined. In short, the instruction was ambiguous. “For ambiguous instructions, the test is
whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.†(
14 Cal.4th 668, 777.) In making
that determination, we presume the jury followed and understood the
instructions, and considered the instructions as a whole, not simply a single
instruction or isolated parts of an instruction. (People
v. Harrison (2005) 35 Cal.4th 208, 252; People v. Morales (2001) 25 Cal.4th 34, 47;
677.)
As pointed out
earlier, Torres ignores other instructions provided by the trial court,
including CALCRIM Nos. 3470 and 505 on self-defense and CALCRIM No. 571,
instructing the jury that it could find defendant guilty of voluntary
manslaughter based upon imperfect self-defense.
Torres has made no showing that the jury failed to understand and
correlate all the instructions, and thus has not demonstrated error requiring
reversal. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Instruction on Right to Use a Gun in Self-Defense
Torres argues the
court violated his constitutional rights by failing to grant trial counsel’s
request to instruct that whether or not Torres possessed the firearm legally
was irrelevant to the determination of whether Torres shot Barrera in lawful
self-defense. Torres contends there was
ample evidence from which the jury could infer that he illegally possessed the
firearm.
Background
| Description | A birthday celebration degenerated into a violent argument over the relative merits of rival gangs. Shouting turned into fighting, and fighting turned into gunfire, resulting in the death of a gang member. An amended information charged defendants Edwin Arthur Stevenson and Panfilo Torres with murder for the benefit of a criminal street gang. A jury found Stevenson guilty of murder and Torres guilty of the lesser included offense of assault with a firearm. The court sentenced Stevenson to 60 years to life in state prison and Torres to 14 years. Stevenson appeals, contending insufficient evidence supports his murder conviction, the court erred in admitting gang video recordings, comments made during voir dire tainted the jury pool, instructional error, and sentencing error. Torres appeals, arguing instructional error and sentencing error. We shall direct the abstract of judgment in Stevenson’s case be corrected to reflect accurate presentence credits and to delete the 10 year consecutive sentence for the gang enhancement on count one; in all other respects, we shall affirm the judgments. |
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