Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007020088, Allan L. Steele, Judge
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jason Antoine Rodriguez appeals from a judgment after conviction by jury of street terrorism (Pen. Code, § 186.22, subd. (a)); second degree robbery (§ 211); dissuading a witness by force or threat (§ 136.1, subd. (b)(1)); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found true allegations that the robbery was committed with personal use of a firearm (§ 12022.53, subd. (b)) and that the robbery, dissuading of a witness and firearm possession were committed for the benefit of a street gang (§ 186.22, subd. (b)). With respect to dissuading the witness, the trial court struck the gang enhancement.
All statutory references are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to 26 years in state prison, consisting of a 5-year upper term for the robbery, plus 10 years each for the firearm and gang enhancements, plus 1 consecutive year for dissuading a witness, and 2 concurrent terms of 2 years each for the street terrorism and firearm possession offenses.
Appellant contends that the trial court erred when it denied his motion for mistrial based on racial discrimination in jury selection, admitted preliminary hearing testimony of the victim, allowed testimony of a gang expert without proper foundation without which, appellant contends, there was insufficient evidence that any of his crimes were committed for the benefit of a street gang, did not give a jury instruction on corroboration of accomplice testimony and did not stay his prison term for being a felon in possession of a firearm pursuant to section 654. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007 on M Street in Oxnard, appellant and two associates, Juan Meza and Yvonne Jacinto, bought ice cream from a street vendor, Jose Ramirez. At the preliminary hearing, Ramirez testified that appellant took a revolver from his waist, pointed it at Ramirez and threatened to shoot him if he did not give him cash. Ramirez handed cash to appellant and Meza took his wallet. Appellant and his associates ran away. Appellant ran into the home of a stranger and tried to hide there, until she insisted he leave for the sake of her children.
Ramirez went in search of his wallet because it contained his identification card from the Mexican Consulate. He found appellant and Jacinto and asked for his identification. Appellant returned the wallet, but said, "I know where you live, faggot," or "don't say anything, [w]e know where you live, faggot." It was stipulated at trial that on the day of the robbery Ramirez told an investigating officer that the robber said, "Remember I know where you live so don't tell...."
Appellant has "Sur Town" gang tattoos on his head and chest. In prior contacts with law enforcement, he had admitted that he was a Sur Town gang member and that he "kicks it with Sur Town," and that his moniker is "Creature." He had been seen in the presence of other Sur Town gang members. Photos in appellant's wallet at the time of arrest showed him with other Sur Town gang members and making a Sur Town hand signal. His phone book contained the names and numbers of other Sur Town gang members listed by their monikers. Meza testified at trial that when they met, appellant said he was a member of the Sur Town gang and that his moniker was "Creature." Appellant had a prior felony conviction for possession of methamphetamine.
The crimes occurred in a neighborhood that lies between two segments of Sur Town gang territory. At the time of the robbery, Jacinto was wearing a Georgetown University sweatshirt. Appellant was wearing a Duke Blue Devils jersey at the time of his arrest. An expert testified that this clothing was worn by members of the Sur Town gang.
Appellant and Meza were both arrested on the day of the crimes, and were put in a jail cell together. Meza testified at trial that while they were in the cell appellant told Meza to call his wife and tell her to have someone "go to the bathroom and look for something." Meza did as he was requested.
In a recorded telephone call the same day, an unidentified woman told appellant that the robbery had been on television news. He laughed and said, "Creature in the news." He said he expected to jump on a plea bargain and get out in six months. Appellant told the woman, "Go to the restroom --." She interrupted and said, "It's already gone." Appellant said, "Give it to Caveman [Sergio Ruiz].... Tell Caveman to hold on to it for me." Appellant said to the woman on the phone, "I didn't even do nothing this time," but when Ruiz came on the phone line appellant said, "It was history in the making though, right?" Appellant told Caveman to, "keep that shit, fool... you know what I mean," and "if it comes out in the newspaper, fuckin' cut that thing out too." Police immediately obtained a warrant and recovered a revolver from Ruiz' apartment.
During jury selection, appellant's counsel moved for mistrial after objecting to the prosecution's exercise of five of its fifteen peremptory challenges to excuse five of six potential jurors with "Hispanic" surnames. (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.) The trial court denied the motion after finding appellant had not made a prima facie showing of discrimination so there was no need for the prosecutor to provide race-neutral justification for the challenges. It observed that there were "still some people with Hispanic names on the jury and that... there were reasons that all of these other people had been excused that were above and beyond the fact that they had Hispanic names."
Before trial, the prosecution reported that it was unable to locate the victim, Jose Ramirez, who may have fled to Mexico in fear of his safety. After considering the affidavit of the prosecution's investigator, the trial court found that the witness was unavailable and allowed the prosecution to present his preliminary hearing testimony at trial.
Over defense objection, the trial court allowed the prosecution's gang expert to offer an opinion, based on a hypothetical question, that appellant committed his crimes on behalf of a street gang. Appellant objected for lack of foundational evidence that the crimes had been committed for benefit of a street gang.
Appellant's accomplice, Juan Meza, pled guilty to a robbery charge and admitted that the crime was committed for the benefit of a street gang. Meza testified against appellant at trial. The trial court did not give the standard jury instruction on corroboration of the testimony of an accomplice.
DISCUSSION
The Prosecutor's Use of Peremptory Challenges
Appellant contends that the trial court erred when it denied his motion for mistrial after the prosecutor used five of fifteen peremptory challenges to excuse prospective jurors with Hispanic surnames.
The use of peremptory challenges to remove prospective jurors solely on the basis of membership in a racial group violates both the state and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. 1, § 1; Batson v. Kentucky, supra,476 U.S. at p. 89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) It is presumed that the person exercising the peremptory challenge does so on a constitutionally permissible ground. (People v. Wheeler, supra,at p. 278.) A party who believes his opponent is using peremptory challenges to strike jurors based solely on race has the initial burden to rebut that presumption by showing that "'... "the totality of the relevant facts gives rise to an inference of discriminatory purpose."...'" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.) Only upon such a prima facie showing would the burden shift to the prosecution to justify its exercise of peremptory challenges on race-neutral grounds. (Ibid.)
A defendant meets his initial burden if he produces enough evidence to permit the trial judge to draw an inference that discrimination has occurred. (People v. Guerra (2006) 37 Cal.4th 1067, 1100.) It may be relevant that the prosecutor struck most or all of the members of the racial group from the venire or used a disproportionate number of peremptory challenges against the group, that group membership was the only characteristic shared by the challenged prospective jurors or that the prosecutor engaged the challenged group members in little or no questioning. (People v. Bonilla (2007) 41 Cal.4th 313, 342.) On appeal from a determination that no prima facie showing was made, we review the record independently to determine whether it supports an inference that that the prosecutor excused the prospective jurors in question based on their race. (Ibid.)
In the present case, the prosecutor's overall questioning of prospective jurors was limited; it was not disproportionately cursory or materially different with respect to prospective jurors with Hispanic surnames. The record contains substantial evidence of race neutral grounds upon which the prosecutor might reasonably have challenged each of the five prospective jurors in question, and discloses some common characteristics other than race. Stephanie Gutierrez was young and said that she had seen law enforcement officers make mistakes. Deanne Hernandez was also young and said she "would be pretty good on this case" because she did "kind of know somewhat about gangs" because her brothers were in an Oxnard gang when they were young. Rodriguez was young, had a juvenile record, had once been thrown down to the ground by a police officer, and was "really familiar" with Oxnard gangs, including Sur Town. Galvez made equivocal statements about gangs. He said the fact that the case was gang related worried him because he was concerned about retaliation and that it was possible this would affect his ability to be fair. He later said he did not think it would affect him and that he could be fair. Carolyn Hernandez described herself as "very opinionated."
Recognized legitimate race-neutral reasons for exercising peremptory challenges include the juror's youth (People v. Sims (1993) 5 Cal.4th 405, 430), their limited life experience (People v. Perez (1994) 29 Cal.App.4th 1313, 1328), their negative past experience with law enforcement (People v. Avila, supra,38 Cal.4th at p. 545); their equivocal statements about how their views might affect their decisions in the case (People v. Adanandus (2007) 157 Cal.App.4th 496, 505), and their knowledge about gangs obtained through the experience of family members (People v. Lenix (2008) 44 Cal.4th 602, 629). Appellant argues that there is an inadequate record to compare the ages of the excused jurors with those who remained because not all jurors were asked their ages. Appellant had an opportunity to question each juror, had the initial burden of producing evidence of purposeful discrimination making "as complete a record of the circumstances as is feasible," (People v. Wheeler, supra,22 Cal.3d at p. 280) and has the burden on appeal of demonstrating error in the record. The court did not err when it denied appellant's motion for a mistrial.
Admission of Preliminary Hearing Testimony of Unavailable Witness
Appellant contends that his right to confront witnesses against him was violated when the trial court admitted the preliminary hearing testimony of Ramirez because the prosecution had not established that it exercised due diligence in its efforts to procure Ramirez for trial.
The Sixth Amendment of the federal Constitution guarantees a defendant the right to be confronted by witnesses against him. (Crawford v. Washington (2004) 541 U.S. 36, 42.) The prior testimony of an absent witness may be admitted only if the witness is unavailable and the testimony was given in a prior judicial proceeding against the same defendant, subject to cross-examination. (Id. at p. 54; People v. Cromer (2001) 24 Cal.4th 889, 897.) Before the witness may be found to be unavailable, the proponent of the testimony must prove that it has made a good-faith effort to procure attendance of the witness at trial. (Ibid; People v. Cummings (1993) 4 Cal.4th 1233, 1297.) In California, this exception to the right to confrontation and the hearsay rule is codified in sections 1291 and 240 of the Evidence Code. (Evid. Code, § 240, subd. (a)(5).)
The prosecution offered the affidavit of its investigator as proof of due diligence. The affidavit was not contradicted by other evidence. Where the evidence is undisputed, we independently review the question whether the prosecution exercised due diligence in its efforts to procure the witness. (People v. Smith (2003) 30 Cal.4th 581, 610.)
After independent review of the record, we conclude that the prosecution demonstrated due diligence and that the court properly found Ramirez unavailable as a witness. According to the declaration of the prosecutor's investigator, Oxnard police determined during the initial investigation that the address for Ramirez on the crime report was no longer accurate. They learned from a current resident that he had a new address. They were able to locate him and transport him from the new address for the preliminary hearing on June 25, 2007. "Later," a detective went back to Ramirez' address and found that he no longer lived there. The detective contacted the ice cream company by whom Ramirez had been employed, and learned that he no longer worked there. A fellow employee reported that Ramirez told him he was leaving the United States because he feared for his safety after being threatened by gang members. Ramirez left a phone number in Mexico. No dates are provided for these post-preliminary hearing contacts.
The case was initially set for jury trial January 10, 2008, and trial actually commenced February 13, 2008, after the court granted several prosecution requests for continuances. On January 16, an investigator tried to call the number that was left by Ramirez. An operator explained that the number was missing two digits. With the help of a representative of the Mexican Consulate, the investigator learned that two fives were missing from what appeared to be a Mexico City telephone prefix. An investigator left at least six messages for Ramirez at the revised phone number in Spanish. He received no response. Records of the Mexican Consulate, Oxnard Police Department, Ventura County Sheriff's Department, Department of Motor Vehicles, "accurint," and "Lexis Nexis" were all searched without any results matching Ramirez' personal identifying information and physical description. The prosecution was therefore unable to procure Ramirez' presence, or even to confirm whether he was in fact in Mexico, despite diligent efforts.
Appellant argues here, as he did in the trial court, that the prosecution should have used a mutual assistance treaty with Mexico to procure Ramirez' presence, the use of which the court encouraged in People v. Sandoval (2001) 87 Cal.App.4th 1425, 1438. In People v. Sandoval, the prosecution did not exercise reasonable diligence to secure the presence of a witness who was at a known location in Mexico and who was willing to testify. The prosecutor refused to help with the necessary passport and travel costs. Here, the prosecution did not have a willing witness in Mexico requesting travel expenses; the prosecution was unable through diligent efforts to even ascertain whether Ramirez was in Mexico. When sustained and substantial good-faith efforts have been tmade, as they were here, a reviewing court will not reverse a finding of unavailability simply because the "defendant can conceive of some further step or avenue left unexplored by the prosecution." (People v. McElroy (1989) 208 Cal.App.3d 1415, 1428, disapproved on other grounds by People v. Cromer, supra, 24 Cal.4th at pp. 900 & 901, fn. 3.) The trial court did not err when it found that Ramirez was unavailable and admitted his preliminary hearing testimony
The treaty "allows the prosecution to request the assistance of Mexican authorities to invite a person in Mexico to come to California and testify and to inform the person concerning the extent to which expenses will be paid. [Fn. omitted.]" (Id. at pp. 1438-1439.)
Jury Instruction on Corroboration of Accomplice Testimony
As the prosecution concedes, the court erred when it did not give the accomplice instruction because there was sufficient evidence for the jury to find that Meza was an accomplice. The error was harmless in view of corroborating evidence in the record.
A defendant may not be convicted on the testimony of an accomplice without corroborating evidence connecting the defendant to the commission of the offense. (§ 1111.) If there is evidence that a witness is an accomplice, the trial court has a sua sponte duty to instruct the jury to determine whether the witness is an accomplice and, if so, on the need for corroboration and caution. (People v. Tobias (2001) 25 Cal.4th 327, 331; CALCRIM 334.) The court did not do so here.
"A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.]" (People v. Avila, supra, 38 Cal.4th at p. 562.) The evidence necessary to corroborate the testimony of an accomplice need only connect the defendant with the crime and may even be slight and entitled, standing alone, to little consideration. (People v. Williams (1997) 16 Cal.4th 635, 680-681.) It need not corroborate the accomplice on every fact and need not be sufficient to establish every element of the offenses. (Ibid.) The necessary corroboration may be supplied by testimony of another witness, or the defendant's own admissions (Id. at p. 680) or his flight (People v. Zapien (1993) 4 Cal.4th 929, 983).
In the present case, Meza's testimony is corroborated by the testimony of Ramirez, which we have declined to excise for the reasons discussed above. It is further corroborated by appellant's recorded telephonic admissions that it was "history in the making" and "they got me fool," and by appellant's flight and admitted attempt to hide in a stranger's home after the robbery as well as his attempt to flee arresting officers. In addition, the court gave a special instruction that the jury should view the testimony of Meza "with greater care than that of an ordinary witness."
Appellant contends that Meza's identification of the revolver may not be used to corroborate his own testimony, but we do not rely on that testimony to find harmless error. Meza's identification of the revolver that was recovered from Ruiz's home, as the same revolver that was used by appellant in the robbery, was in fact corroborated by appellant's conversation with Ruiz about getting something from the bathroom and keeping it for him ("It's already gotten." "Keep that shit, fool.") coupled with the immediate recovery of a revolver in Ruiz's home. The absence of a corroboration instruction was harmless.
Foundation for Admission of Gang Expert Testimony
Appellant contends that the court erred when it allowed the prosecution's gang expert to testify because there was insufficient evidence that the crimes were gang related, notwithstanding appellant's conceded gang membership. We disagree.
A qualified expert may testify about the culture and habits of criminal street gangs if the testimony is relevant to the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) We review the trial court's decision to admit such testimony for abuse of discretion. (Ibid.) The foundation for the testimony of a gang expert may be any matter "of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates...." (Evid. Code, § 801; subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 617.) This material may consist of hypothetical facts and material that is not admitted in evidence. (People v. Gardeley, supra,at p. 618.)
Here, appellant contends that his testimony was inadmissible absent a preliminary finding of fact that the crimes were gang-related. Appellant is correct that mere passive membership in a gang would be insufficient to prove the charges against him (§ 186.22, subds. (a) & (b)(1)) but cites no authority requiring a trial court to make a preliminary finding that the crimes were gang-related before admitting expert testimony. It was the province of the jury to determine whether the crimes were gang-related consistent with the instructions, given here, that they should decide whether the factual basis of the expert's opinion was supported by the evidence. The court did not err when it admitted the expert testimony.
Sufficiency of Evidence to Support Findings on Section 186.22, subdivisions (a) and (b)
Appellant contends that there was no evidence that his crimes were done with intent to promote the Sur Town gang sufficient to support his conviction for participating in a criminal street gang (§ 186.22, subd. (a)) or to support the findings that his other crimes were committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).) The record discloses sufficient evidence to support the jury's findings.
We view the record in the light most favorable to the judgment and determine whether it discloses substantial evidence to support the jury's findings. (People v. Earp (1999) 20 Cal.4th 826, 887.) Appellant concedes that there was sufficient evidence for the jury to find that he was a member of the Sur Town gang. More than nominal or passive gang membership was required. (People v. Castaneda (2000) 23 Cal.4th 743, 747.) Appellant points out that he was in neutral territory with a nongang member, Meza, and that there is no evidence that he announced his membership, showed gang hand signals, revealed his gang tattoos or revealed the gang-related jersey that he was wearing under a hooded sweatshirt during commission of the crimes. Nevertheless, appellant committed his crimes in the company of Jacinto, who was openly wearing gang-related clothing, in an area that was between two territories controlled by the Sur Town gang. He warned the victim he would retaliate if the victim reported the crimes. This was intimidating behavior that the expert testified was consistent with gang membership and tends to increase the gang's control in an area. He bragged that he was in the news and that his crimes had made history and he requested clippings of any newspaper coverage, all of which the expert testified was consistent with a desire to increase the prestige of the gang and appellant's position within it. Viewed in the light most favorable to the judgment, the record contains sufficient evidence to sustain the jury's findings that appellant's crimes were gang related for purposes of section 186.22, subdivisions (a) and (b).
Sentencing for Felon in Possession of Firearm as Divisible Offense (§ 654)
Appellant contends that his sentence for possessing a firearm should have been stayed because it was based on the same act and intent that gave rise to his conviction for robbery by force or fear with possession of a firearm. (§§ 211 & 12022.53, subd. (b).)
A single act may not be punished under more than one provision of law. (§ 654.) The purpose of this limitation is to ensure that punishment is commensurate with culpability, and it applies to several offenses committed during a course of conduct that is "indivisible in time." (People v. Harrison (1989) 48 Cal.3d 321, 335.) The divisibility of a course of conduct depends upon the defendant's intent and objective, not the temporal proximity of his offenses. (Ibid.) Where a defendant has multiple or simultaneous objectives, independent of and not merely incidental to each other, he may be punished for each violation even if they share common acts or were parts of an otherwise indivisible course of conduct. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We will affirm a trial court's determination on the applicability of section 654 if it is supported by substantial evidence in the record, viewed in the light most favorable to its determination. (People v. Jones, supra, at p. 1143.)
A felon may not be punished for possession of a firearm used in the commission of another offense if the two offenses are indivisible. (People v. Bradford (1976) 17 Cal.3d 8, 22.) On the other hand, that felon may be separately punished if there is evidence showing "'... a possession distinctly antecedent and separate from the primary offense...." (Ibid.)
In People v Bradford, the defendant's possession of an officer's revolver was not divisible from his assault on the officer away from whom he had wrested it. In People v. Cruz (1978) 83 Cal.App.3d 308, the defendant's entry into a bar armed with a handgun was not divisible from his immediate use of that gun to assault a doorman because there was no proof of antecedent or separate possession and the possession was only incidental to the primary objection of assault.
In People v. Jones, supra,103 Cal.App.4th, page 1143, the defendant's possession was divisible from his shooting at an inhabited dwelling because evidence that he arrived 15 minutes before the shooting supported an inference of antecedent possession. The court held that, "section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (Id. at p. 1145.)
In the present case, evidence that appellant was standing in a field with Jacinto and Meza, before Meza summoned their victim, constituted substantial evidence to support the trial court's finding of antecedent possession. Multiple punishment was permissible.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.