Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. RIF006299, Judith C. Clark, Judge.
Rod Pacheco, District Attorney, and Daniel Ackerman, Deputy District Attorney, for Plaintiff and Appellant, County of Riverside.
Conrad Peterman, under appointment by the Court of Appeal, for Defendant and Appellant, Jose Urrutia.
Law Offices of Barry Bernstein, Barry Bernstein, and Alison M. Adams, for Defendant and Appellant, Enrique Guzman Ortega.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Gary Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
I. SUMMARY
There were four individuals thought to be members of a gang known as the Elsinore Young Classics (“EYC”): Appellants Jose Urrutia and Enrique Ortega, Mario Hernandez, and Ruben Aguirre. All four were charged with various crimes arising out of three shootings in the spring of 2003. One of those shootings resulted in the death of Valentin Romero on April 26. The other shootings missed Ryan Concepcion on April 6, and missed Angel and Javier Salas on March 27.
The court conducted a joint trial with three juries, one for each of the defendants, except that appellant Jose Urrutia and one Mario Hernandez were tried together. All of them moved for acquittal after the close of the prosecution’s case. The trial court granted the motion as to one of them, Ruben Aguirre. The trial judge also dismissed the murder charge arising out of the death of Romero as to appellant Urrutia, and took the matter as to Hernandez under submission.
Before the court could rule, however, Hernandez took a plea bargain in exchange for his testimony. But the bargain required that the prosecution’s case against another defendant, appellant Enrique Ortega, Jr., be reopened. That meant Ortega would be exposed to testimony from both Hernandez and Aguirre.
Ortega’s jury convicted him of the murder of Romero, the attempted murders of Concepcion, and Angel and Javier Salas, plus being a felon in possession of a firearm.
Urrutia’s jury (remember, without the benefit of Hernandez or Aguirre’s testimony) convicted him of the attempted murder of Angel Salas, and of attempted manslaughter of Javier Salas. The Angel Salas murder conviction was, however, reduced by the trial court to attempted voluntary manslaughter as well.
Both Ortega and Urrutia now complain of numerous procedural errors in regard to the trial, as well general insufficiency of the evidence to support the various counts making up their sentences.
The People (represented by the Riverside District Attorney’s office) also appeal, contending that the trial court should not have reduced Urrutia’s conviction to attempted voluntary manslaughter.
For the detailed reasons to follow, we affirm the judgment in its entirety.
II. FACTS
The information charged defendants with several crimes arising out of four separate incidents: one murder, two attempted murders, and one discovery of firearms in possession of a convicted felon. We present these incidents in chronological order for simplicity.
A. The March 27, 2003 Attempted Murder of Javier and Angel Salas (the Avenue 4 Incident)
Also sometimes referred to as Fourth Avenue.
On March 27, 2003, at around 8 p.m., Angel Salas was taking a nap while his friend David Cuevas was playing video games at the Salas’s residence. Outside, Angel’s father, Javier Salas, was working on a van parked in the driveway. Carlos Fernandez, a family friend, was outside installing a stereo system in a black Honda Civic.
While he was working, Fernandez noticed a blue car drive by the house, and he heard someone yell, “big bad EYC.” The car parked a couple houses down from the Salas’s house. Then, a grey Honda Civic pulled up in front of the house. Five people were inside the Honda. Fernandez recognized one of the passengers as Danny Vargas. Vargas asked Fernandez about an amplifier, and Fernandez replied, “I don’t have it. I already told you it got stolen.”
Angel and Cuevas heard “loud talking” and “mumblings” outside the house, and they went outside to investigate. Cuevas knew Jose Urrutia from school and recognized him as the driver of the silver Honda Civic. When Angel came out of the house, he recognized Danny Vargas and challenged Vargas to fight. Javier saw the person sitting behind the driver’s seat pull out a shotgun and start to open the car door. Cuevas also saw the shotgun.
Javier had a hammer in his hand, and he threw it at the backseat passenger’s window. The window shattered and the car started to move away. Javier said he reacted because he was afraid someone would shoot his son. Shots were fired from the car as it drove away from the house, which prompted Javier to grab his son and take cover behind a van parked in the driveway. After the Honda drove away, the blue car that had been parked down the street drove by with guns blazing. Angel and Cuevas heard someone yell “EYC” prior to and during the shooting, but no one was injured.
Investigators found seven nine-millimeter casings, a shotgun shell, a tire mark, and broken glass at the scene. There were bullet holes in the van Javier and Angel used as a shield. The next day, deputies found a silver Honda Civic abandoned near Lake Elsinore. Inside, they recovered one expended and one unexpended shotgun shell, an expended.22-caliber casing on the passenger floorboard, a sledge hammer, and a baseball cap bearing the letters “EYC.” Although the officer did not find any nine-millimeter casings in the Honda, they did find Urrutia’s fingerprints.
B. The April 6, 2003 Attempted Murder of Ryan Concepcion on Spring Street
On April 6, 2003, Hernandez and other EYC gang members, including Ortega, Urrutia, and Freddie Cisneros, also known as “Sleepy” were together when they decided to drive Ortega’s Mercury Cougar to Lake Elsinore. The group was driving on Spring Street when they noticed Ryan Concepcion coming out of a house he shared with his girlfriend, Gloria Baker, and their child. Concepcion got into a white sedan and started to drive away, but Ortega walked in front of the car and forced Concepcion to stop. Concepcion put his head out the window, and he and Ortega stared at each other. Ortega reached into the waist of his pants, pulled out a handgun, ran into the middle of the street and opened fire. He missed Concepcion, who sped away. Ortega returned to his car and also drove away. Witnesses said the shooter was wearing a Dallas Cowboys jersey bearing the name E. Smith and the number 22. Police investigators recovered 12 nine-millimeter casings at the scene.
C. The April 26, 2003 Murder of Valentin Romero at Harb’s Market
On April 26, 2003, Hernandez and several other EYC members, including Ortega, Urrutia and Hernandez’s cousin Aguirre, attended a wedding reception in Perris, California. Hernandez left the reception around 8 p.m. with Aguirre and two other EYC members in Aguirre’s Ford Aerostar van and headed to Harb’s Market to get beer. Harb’s Market is located in an area claimed by the Perris Mara Villa (or “PMV”) criminal street gang. Ortega and Urrutia left the reception at about the same time in Ortega’s blue Mercury Cougar.
Aguirre parked the van, and he and Hernandez got out and went inside the store. Ortega parked his car in back of the store. When Aguirre and Hernandez came back outside, they exchanged words with Valentin Romero, who had pulled up in his green pickup truck. Aguirre and Hernandez got into the van and started to leave, but Hernandez told Aguirre to stop the van because he wanted to get out and talk to Romero. Hernandez thought Romero was “mad-dogging” them because of his rival gang affiliation.
Romero picked up a piece of asphalt from the ground and threw it at Hernandez. He hit him in the right thigh, and Hernandez fell to the ground. Hernandez heard a car stop in the gravel and the sound of a gunshot come from that general direction. Romero was shot in the head and later died. Hernandez said that he saw Ortega’s Cougar drive out of the parking lot. He got into Aguirre’s van and they followed Ortega.
Ortega crashed his Cougar a couple of miles away from Harb’s Market. He and Urrutia walked to a house close by and used the telephone to call for a ride. While waiting for their ride, Ortega and Urrutia told Americo Sanchez they had been involved in a “fight” at Harb’s Market, and that they were EYC gang members. Ortega’s sister picked them up and took them to their mother’s house. At the time, Ortega was wearing a Dallas Cowboys jersey.
Later, Hernandez and Aguirre were driving to Ortega’s house when they noticed Ortega’s Cougar off to the side of the road. It had been involved in an accident and there were police at the scene. Ortega told them he had crashed his car, and that he had left a photo album with gang pictures in the car, including a picture of Ortega and Hernandez Making gang hand signs. Ortega asked Hernandez about his leg and then said, “[I] got him.”
Investigators recovered one expended nine-millimeter shell casing at Harb’s market. They found a CD case with gang graffiti, a photo album depicting gang activity, and Ortega’s social security card and birth certificate in his wrecked Cougar.
D. The Gun Count
On May 23, 2003, sheriff’s deputies responded to a suspicious persons call at a residence on Worth Street in Perris, California. They were given permission to search the home, and they found Ortega, fully clothed and lying in bed, in the master bedroom. They also found a nine-millimeter handgun with two fully loaded magazines under the bed. The officers also found four people, including Urrutia, in the garage, and they seized a Dallas Cowboys jersey bearing the number 22 and E. Smith, a black non-hooded sweatshirt with the word “Elsinore” written across the front, and a notebook containing EYC-related writing.
III. EVIDENCE AT TRIAL
A. Forensic Evidence
A firearms expert compared a bullet recovered from Romero’s body with the handgun recovered at Worth Street. In his opinion, this gun fired the fatal shot. He also opined that the same gun fired the expended casings recovered at Harb’s Market, six of the seven expended casings recovered at Avenue 4, and four of the twelve casings recovered from Spring Street. In addition, DNA testing linked Ortega to the Worth Street gun, and an expert testified that the large amount of DNA recovered from the weapon indicated protracted use of it.
B. Gang Expert Testimony
Riverside County Deputy Sheriff Robert Kwan testified as the prosecution’s gang expert. A seven and one-half year veteran, Detective Kwan spent approximately four and one-half years assigned to the Lake Elsinore station gang enforcement team. He gave generalized testimony about the origins of criminal street gangs, gang culture, and gang member behavior. He also testified about the origins and characteristics of the EYC gang.
According to Kwan, the EYC is a typical Hispanic criminal street gang. The gang has approximately 150 members, and its members claim the town of Lake Elsinore as its territory or turf. The gang uses various identifying signs, including the number “13, ” the letters “YC, ” “PWL, ” “TWS” and “EYC.” Kwan explained the importance of respect within Hispanic gang culture, and he testified that any act of disrespect would garner an act of retaliation. “Mad-dogging, ” or staring someone down, is considered an act of disrespect. Kwan identified Ryan Concepcion as a member of one of EYC’s rivals, the “EVL” criminal street gang. He explained that shooting a rival gang member enhances the gang’s reputation, as does any violent act. Furthermore, mere possession of a firearm benefits a gang because a gun can be used in the commission of various crimes.
In Kwan’s opinion, Ortega and Urrutia were active members of EYC. Ortega has the moniker, or nickname, “Wino, ” and Urrutia’s moniker is “Conejo.” According to Kwan, Ortega admitted being a member of EYC to police officers, and he has gang-related tattoos on his body, i.e. an EYC on the back of his head and a “Y” and a “C” on his chest. Kwan identified various gang-related photographs, several of which had been recovered from the abandoned silver Honda. One photograph depicted Ortega holding a gun while other EYC members made gang hand signs.
Kwan also testified that Urrutia had been contacted by law enforcement while in the company of other EYC gang members, photographed with other gang members, and arrested for crimes committed with EYC members. Moreover, Urrutia admitted being associated with EYC, and he wore clothing associated with the gang, like a belt bearing the number 13 and a sweatshirt with the word Elsinore across the front. Kwan also testified the notebook recovered at Worth Street contained EYC graffiti. Kwan testified that the defendants committed the instant crimes for the benefit of EYC.
C. Other Crimes Evidence
Over defense objection, the court admitted evidence that Ortega committed an uncharged crime. At trial, Christopher Stevenson testified that in August 1996 he and his brother were driving out of the parking lot of a Lake Elsinore convenience store when three Hispanic men approached their car. Stevenson’s car window was down and two of the three men stabbed and punched him while attempting to open the driver’s side door. A third man tried to grab the car keys before all three men fled. Stevenson identified Ortega as one of the men who attacked him, and Ortega was arrested shortly thereafter.
D. Defense Motion for Acquittal
At the conclusion of the prosecution’s case-in-chief, defendants moved for an acquittal pursuant to section 1118.1. The court granted Aguirre’s motion and acquitted him of all charges. Hernandez’ motion was taken under submission, but ultimately he pled guilty to voluntary manslaughter with credit for time served in exchange for his testimony.
Section 1118.1 provides, “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”
After the court permitted the prosecutor to reopen his case, Hernandez testified to facts regarding the shootings at Spring Street and Harb’s Market. He admitted membership in EYC since 1994, and stated that he used the moniker, “Weasel.” He also testified Ortega had been a member of EYC since 1995. Hernandez claimed to have seen Ortega with a gun before the Harb’s Market shooting, and that after the shooting Ortega said “I got him, ” which Hernandez understood to mean that Ortega claimed responsibility for shooting Romero. Hernandez also testified that Ortega was wearing a blue jersey during the Spring Street shooting, and that he and Ryan Concepcion locked eyes before Ortega pulled out a nine-millimeter gun and shot at Concepcion’s car.
Aguirre and Hernandez are cousins, and his testimony essentially corroborated Hernandez’s recollection of the two shootings. Aguirre also claimed to be a former member of EYC, and said that he had taken steps to get out of the gang, i.e., moving out of Lake Elsinore, having tattoos removed and keeping his contacts with gang members to a minimum. However, he admitted to some continuing association with certain members of the gang.
E. Defense Evidence
The trial court permitted Aguirre to call a witness out of order prior to its ruling on his motion for judgment of acquittal. His witness, a toxicologist, testified that at the time of his death, Romero more than the legal limit of alcohol in his blood (.012), plus methamphetamine and marijuana. According to the toxicologist, methamphetamine can cause aggression and violence, which could explain why Romero threw a rock at Aguirre.
One of Ortega’s witnesses testified someone else shot Romero during the Harb’s Market incident. A witness for Urrutia identified someone else as the driver of the silver Honda that was involved in the Fourth Avenue shooting.
III. DISCUSSION
A. Ortega’s Appeal
1. Due Process of Law
Three issues come under the general rubric of due process, namely fingerprint evidence, some potential items of evidence that were destroyed, and the fact of the plea bargain with Hernandez and his consequent testimony.
a. fingerprint evidence
A fingerprint technician’s initial report erroneously stated that none of the prints found in the Honda were “comparable, ” but that the prints had been sent to a criminal data base for comparison. The prosecutor did not discover until trial, however, that the prints actually matched Urrutia’s fingerprints. The prosecutor immediately disclosed the evidence and explained the delay. He told the court that Urrutia’s prints were not in the database when the technician first submitted them. The court ruled that the prosecutor had not acted in bad faith in the late disclosure of fingerprint evidence. The evidence was admitted and the court instructed Urrutia’s jury regarding late disclosure of fingerprints.
Ortega did not object to the introduction of this evidence, or move for a mistrial. Generally, a timely and specific trial objection must be made to reserve an issue for appeal. (People v. Raley (1992) 2 Cal.4th 870, 892.) However, even assuming a timely objection, Ortega fails to explain how the introduction of his co-defendant’s fingerprints prejudiced his case. A criminal defendant complaining of untimely disclosure must show prejudice from the delay. (People v. Jenkins (2000) 22 Cal.4th 900, 950.)
b. destroyed evidence
According to the record, several items of evidence from Worth Street were destroyed prior to trial, including a Dallas Cowboys football jersey, photographs of the Worth Street garage and residence, a gang notebook, a taped interview of Jack Levya (who had been charged with witness tampering in a case later dismissed) and a taped interview of Louis Perez (who testified at the preliminary hearing and recanted).
The prosecutor represented that the jersey had been destroyed for reasons unknown, but that the other evidence had been destroyed because it had been held as evidence in Leyva’s case and that case had been dismissed.
When the issue arose, the court specifically asked defense counsel “what are you asking this Court to do” to which defense counsel replied “nothing yet.” The court then told defense counsel “[y]ou let me know come whatever motions you want to make.” As Ortega now concedes, defense counsel never objected or made any motions with respect to this evidence. At trial, photos of the jersey and notebook were introduced, Louis Perez personally testified, and officers and other witnesses involved at Worth Street explained what happened and what items had been discovered there.
Ortega fails to establish prejudice, because the items were not exculpatory and in any event he could have obtained comparable evidence by other reasonable means. (See California v. Trombetta (1984) 467 U.S. 479, 485, 489 [due process is violated when evidence is destroyed that had an exculpatory value apparent before the destruction of the evidence and the defendant is unable to obtain comparable evidence by other reasonable means].)
People v. Cook (2007) 40 Cal.4th 1334 is instructive here. In Cook, the defendant was convicted of first-degree murder, robbery and burglary, and sentenced to death. (Id. at p. 1339.) But the prosecution had destroyed critical pieces of evidence, including a blood stained shoe, gel plates with blood samples and a parolee book used for witness identification. (Id. at pp. 1348-1351.)
Applying the Trombetta standard, the court found there was no violation of due process because Cook failed to show how any of the evidence was exculpatory. (Cook, supra, 40 Cal.4th at pp. 1348-1351.) The blood samples, for example, were no longer testable due to flaking and degradation. (Id at p. 1349.)
Here, Ortega fails to explain how any of the evidence was exculpatory, and it clearly wasn’t. The jersey and the gang notebook were not exculpatory because both tend to incriminate Ortega rather than help him. Someone was seen in a Dallas Cowboys jersey at Spring Street and Detective Kwan testified the notebook contained gang graffiti. Neither helps him.
The only piece of evidence that may have had some exculpatory value was the interview of Perez, because it might in theory have been used to impeach him at trial. Here, however, there were alternative means, specifically, the cross-examination of Perez in which he admitted to lying at the preliminary hearing while under oath. The same applies to the football jersey and gang notebook which were photographed.
The only evidence unavailable in any form was the taped interview of Jack Levya. However, Ortega has failed to show why it was unreasonable to have Levya interviewed, especially since Levya is Ortega’s younger brother.
c. the plea bargain and the motion to reopen
The dominant metaphor of Ortega’s brief is “trial by ambush” and “exhibit A” supporting that metaphor was the trial court’s decision to allow the prosecution to reopen the case so as to allow Hernandez to testify. It is as if acquittal had been snatched from him by the belated decision of Hernandez to grass on his erstwhile gang colleagues.
A defendant’s disappointment, however, does not prejudicial error make. Motions to reopen motions are reviewed for abuse of discretion. (Pen. Code, § 1094; People v. Rodriguez (1984) 152 Cal.App.3d 289, 295 [“‘Factors to be considered in reviewing the exercise of [the trial court’s] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence.’”].) And a host of factors here show no abuse of discretion.
First, the prosecution moved to reopen its case immediately after the court’s ruling on defendants’ motions for acquittal. At this stage in the proceedings, only one defense witness had testified, and that because the toxicologist’s testimony had been taken out of order. Thus, there was no real interruption of defense evidence.
Second, the prosecutor acted diligently in that Aguirre and Hernandez were unavailable as witnesses until after the defense motions.
Third, another prosecution witness, Freddie Cisneros, unexpectedly reneged on his grant of immunity, and the Aguirre and Hernandez testimony helped plug the gap. Cisneros refused to answer questions and the court in fact jailed him for contempt. And while during the trial he was periodically called back, he steadfastly refused to answer any questions. The trial court noted that Cisneros’s refusal to testify caused proof problems for the prosecution, problems that testimony from Aguirre and Hernandez helped alleviate.
Fourth, there was a minimal danger the jury would accord undue weight to the testimony because here the evidence was part and parcel of the prosecution’s case-in-chief and flowed almost directly and naturally from other evidence submitted. (Cf. People v. Funes (1994) 23 Cal.App.4th 1506, 1520-1521 [the jury had specifically requested the evidence during its deliberation, hence was likely to place undue emphasis on it].)
Fifth, the evidence was highly relevant, because Hernandez offered eyewitness testimony regarding both the Harb’s Market and Spring Street shootings. He testified that he saw Ortega shoot at Ryan Concepcion, and that Ortega admitted shooting Valentin Romero.
Ortega also complains that he had “no ability to investigate codefendants or interview them.” But that is not exactly true. As Ortega repeatedly asserts, this case had been pending for quite some time. His defense team knew the identities of the codefendants before trial. Plus, the court granted Ortega a two-day continuance to prepare for their testimony after granting the prosecution’s motion to reopen. Under the circumstances, we find no violation of Ortega’s state and federal Constitutional rights.
2. Suggestive In-Court Identification
Relying on a single case, Manson v. Brathwaite (1977) 432 U.S. 98, Ortega contends the trial court erroneously allowed two witnesses, Perry Walters and Alfredo Trujillo, to identify Ortega at trial when they had not identified him prior to trial. Walters identified Ortega in court based on the shape of his head and testified that he saw Ortega run to his car after the shooting on Spring Street. Trujillo, an eyewitness to the Harb’s Market shooting, did not identify Ortega as the shooter, but tentatively identified Hernandez.
Another purported instance of “trial by ambush?” Not quite. Trujillo did not actually identify Ortega. Walters’ identification of Ortega as the shooter on Spring Street was merely cumulative of Hernandez’s and Aguirre’s testimony. There was thus no likelihood of ‘“irreparable misidentification.”’ (People v. Arias (1996) 13 Cal.4th 92, 168, quoting Manson v. Brathwaite, supra, 432 U.S. at p. 106.)
3. Sufficiency of the Evidence
The sufficiency of the evidence argument is really a corollary of the attack on the motion to reopen. After all, with Hernandez testifying that he saw Ortega with a gun before the Harb’s Market shooting, and heard the “I got him” statement, it is borderline frivolous to hold that the evidence was insufficient with Hernandez’ testimony.
The standard of review here is abuse of discretion (e.g., People v. Goss (1992) 7 Cal.App.4th 702, 708), and, as we have just demonstrated, the trial court’s decision was amply supported as within the bounds of reason.
We briefly note, however, other evidence than Hernandez’ which supports the jury’s verdicts.
With respect to count 1, the first degree murder of Valentin Romero, ballistics matched the bullet that killed Romero, and a casing found at Harb’s Market, with the nine-millimeter gun found under Ortega’s bed at Worth Street. Ortega’s DNA was found on the trigger of the gun, which means Ortega had possession of the weapon.
Furthermore, Kwan testified that EYC and Perris Mara Villa (PMV) are rival gangs, and that PMV claimed Perris as its territory. Based on Kwan’s testimony regarding the culture and behavior of criminal street gangs, a reasonable inference is that Ortega was in rival gang territory looking for a fight. Trujillo identified at least three other EYC members present at Harb’s Market. On top of that, Romero was unarmed.
Witnesses also reported seeing a Mercury Cougar, the type of car Ortega drives, fleeing the scene right after the shooting and Ortega’s car was later found crashed a couple miles away. Ortega fled like a guilty man.
Then there was the nature of the wound: Romero was shot in the head, which suggests an intent to kill rather than merely scare or wound.
Count 2 also charged Ortega with the attempted murder of Ryan Concepcion. Again, ballistics showed at least 4 of the 12 casings recovered from Spring Street was fired by the nine-millimeter found at on Worth Street. The high number of shots fired gives rise to the inference Ortega intended to kill Concepcion when he fired the weapon, and firing the weapon is sufficient to show Ortega took a direct step toward putting his plan into action. Ortega and Concepcion locked eyes, or mad-dogged each other.
Count 3 charged Ortega with personally discharging a firearm at an occupied motor vehicle. Ryan Concepcion testified that he was shot while sitting in his car. There is no evidence he was a threat to Ortega, and police found 12 shell casings from only one gun, a nine-millimeter, indicating only one person was armed and shooting, and that whoever fired the gun had a malicious intent. Furthermore, Kwan testified Ryan Concepcion was a member of Elsinore Vatos Locos (EVL), a rival gang of EYC, and in his expert opinion the attempted murder was for the benefit of EYC.
In the attempted murder of Angel and Javier Salas (counts 4 & 5), ballistics matched six of the seven casings found at Avenue 4 with the nine-millimeter gun Ortega used. The number of shots evidences an intent to kill. Witnesses heard shots coming from Ortega’s car, and there were no nine-millimeter casings or shells found in the recovered Honda. The facts support an inference the nine-millimeter gun was fired from Ortega’s car. Plus, the fact that Urrutia and Ortega are EYC gang members, and witnesses testified that they heard people yelling “EYC” during the crime, supports Kwan’s expert opinion that the crime was committed for the benefit of a criminal street gang.
Count 7 charged Ortega with being a felon in possession of a firearm. This one is totally obvious: A nine-millimeter weapon was found under Ortega’s bed.
The jury acquitted Ortega of count 6 and the prosecution dismissed count 8.
4. Proof of Intents
Ortega claims “[t]he evidence does not support the specific intent required for the gang enhancements on any count and negates the mens rea of the Avenue 4 and Harb’s Market shooting because those were in actual or mistaken defense of others.”
No. The court instructed the jury on defense of another, provocation as a reason for reducing murder to manslaughter, and involuntary manslaughter based on imperfect self defense. The jury simply rejected Ortega’s claim to self-defense and defense of others. We don’t reweigh the evidence or determine the credibility of witnesses. (People v. Maury (2003) 30 Cal.4th 342, 403.)
We reach the same conclusion with respect to Ortega’s challenge to the sufficiency of the evidence to prove the crimes were committed for the benefit of EYC. “The substantial evidence standard of review applies to section 186.22 gang enhancements.” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Here, expert testimony is available. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.)
Kwan testified that Ortega was an active member of EYC. The Avenue 4 crime was committed with EYC members Urrutia and Danny Vargas. One of these men yelled out “EYC.” Less than two weeks later, Ortega attempted to murder Ryan Concepcion after mad-dogging him. At the time, Ortega was with EYC gang member Mario Hernandez. Then, approximately three weeks later, Ortega’s shooting of Valentin Romero at Harb’s market while in the company of several EYC gang members, and Ortega shot Romero after Romero challenged Hernandez. Needless to say, these actions are consistent with Kwan’s description of the actions of a typical EYC gang member.
5. Uncharged Crimes Evidence
As noted, Christopher Stevenson testified that in August 1996 he and his brother were attacked by three Hispanic men, including Ortega. Ortega contends the trial court abused its discretion to admit this evidence.
There is a two-step approach to such evidence. First, the trial court must determine whether the uncharged conduct is relevant based on the similarity between uncharged offense and charged offense. (People v. Kipp (1998) 18 Cal.4th 349, 371.) Then, the court must determine whether evidence of the uncharged crime has “substantial probative value” that is not “largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Ibid.)
a. relevance
To be sure, the weapon used in the previous crime (a knife) is different from the present case with its gun use. And the Stevenson assault was not a murder or attempted murder. Even so, there are enough similarities to justify the trial court’s decision.
In both the uncharged crime and all three of the charged crimes, Ortega used a weapon to attack and perpetrate violence. Another similarity is Ortega was accompanied by at least one individual when he committed violence. At Avenue 4 Ortega was with at least five people, at Harb’s Market he was with at least Urrutia, Hernandez and Aguirre, at Spring Street he was at least with Hernandez and during the Stevenson stabbing he was with two other assailants. Furthermore, Stevenson had several wounds on his body from the stabbing, and the jury could infer Ortega intended to kill from the number and placement of the wounds, similar to the shooting of Romero in the head.
People v. Lindberg (2008) 45 Cal.4th 1 and People v. Lewis (2001) 25 Cal.4th 610 both illustrate the minimum amount of similarity required.
Considering only the “least degree of similarity is required, ” the uncharged stabbing was sufficiently similar to be relevant to Ortega’s intent.
b. section 352 weighing
As discussed above, the evidence was probative of proving Ortega’s intent and motive. The prosecution only called one witness, and the testimony did not take very long, particularly in comparison to the otherwise lengthy trial. Moreover, Ortega’s jury received a limiting instruction that they could only use the evidence to prove intent and no other purpose. As in Lindberg, supra, 45 Cal.4th 1, the evidence was not nearly as graphic as the actual crime Ortega was charged with. (See Lindberg, supra, 45 Cal.4th at p. 25.) The same reasoning applies here. The nonfatal stabbing was unlikely to invoke as much emotion as the murder and attempted murders.
6. The Court’s Denial of Ortega’s New Trial Motion
At sentencing, Ortega made an oral motion to modify the verdict. (See Pen. Code section 1181, subdivision (6).) He requested the court dismiss the premeditation and special circumstance finding related to count 1, the Harb’s Market shooting, reduce counts 4 and 5 (Fourth Avenue shooting) from attempted murder to attempted voluntary manslaughter, and dismiss the gun use allegations related to those counts. Counsel also argued the jury had been overwhelmed by gang evidence.
Penal Code section 1181, subdivision (6) provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed[.]”
The trial court denied the motion, stating that with respect to count 1, the jury had been instructed on lesser included offenses and rejected them, there was no evidence Ortega saw Romero throw the rock, and no evidence the jury was overwhelmed by gang evidence. With respect to counts 4 and 5, the court relied on evidence that someone in Ortega’s car fired shots at the victims and no evidence anyone in that car knew Romero threw a chunk of something at the other car.
On appeal, Ortega asserts the trial court improperly deferred to the jury’s verdict in ruling on his motion. (People v. Drake (1992) 6 Cal.App.4th 92, 98 [“‘In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence, but an appellate court will not modify or set aside the verdict if there is any substantial evidence to support it.’”]; see also People v. Johnston (2003) 113 Cal.App.4th 1299, 1307.)
But as the trial court noted, substantial evidence supports the jury’s verdict. In both crimes, the court noted there was no evidence that Ortega was threatened or was aware of the threat to either Hernandez or the Honda Civic. In addition, the evidence in both cases showed Ortega arrived first and then positioned his vehicle to fire shots at the victims, thus showing deliberation and intent.
B. Urrutia’s Appeal
1. Aiding and Abetting
Urrutia contends the prosecution failed to present sufficient evidence to prove elements he knew that the actual shooter intended to commit the crime; and that he intended to aid and abet the shooter in committing the crime;
To impose criminal liability under an aider and abettor theory, a jury must find the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent to facilitate or encourage the commission of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Factors relative to a finding of aiding and abetting are “presence at the scene of the crime, companionship, and conduct before and after the offense, including flight.” (People v. Mitchell (1984) 183 Cal.App.3d 325, 330; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Here, witnesses identified Urrutia as the driver of the Honda Civic during the Avenue 4 shooting. Although “[m]ere presence at the scene of a crime is insufficient to establish aider and abettor liability” (People v. Salgado (2001) 88 Cal.App.4th 5, 15), Urrutia was more than merely present at the scene of this crime. As an EYC member with at least two other EYC members in rival gang territory, he drove one of the cars involved in the shooting, the Honda Civic, and shots were first fired from this car. As the driver of the car, Urrutia parked in front of the Salas’s house, putting the shooters in a position to fire their weapons at the people in front of the house, and he remained parked in front of the house while tensions escalated between Vargas and Angel. A witness heard someone in the Civic yell “shoot.”
After shots were fired, Urrutia sped away from the scene, and shotgun shells and casings from a.22 were found in the Honda Civic, indicating two weapons were fired from the car. From this conduct and sequence of events, the jury could infer Urrutia and the others in the car acted together with the shared intent of shooting someone at the Salas’ residence. Thus, the jury could infer Urrutia drove the getaway car with full knowledge of the shooter’s intent. From these facts, the jury could infer this was a planned and coordinated gang attack, involving two cars, three gang members, three weapons, and three shooters.
2. Predicate Offenses
This issue arose because the trial court acquitted Urrutia of the Harb’s Market murder. He was not charged with the Spring Street shooting, which occurred between the Avenue 4 shooting and the incident at Harb’s Market, but the court admitted evidence of the Spring Street to prove the elements of the criminal street gang enhancement. After granting Urrutia’s motion for acquittal, the prosecutor conceded he could no longer use the Spring Street and Harb’s Market shooting to prove a pattern of criminal gang activity, although the prosecutor asserted the evidence was relevant to establish Urrutia’s liability as an aider and abettor.
Urrutia contends the crimes committed after the Avenue 4 incident cannot serve as section 186.22 predicate offenses with respect to him. The idea is that the prosecution’s burden of proof against him was unconstitutionally reduced by the trial court’s failure to specifically advise the jury to disregard the Spring Street and Harb’s Market shootings for purposes of proving the “primary activities” and “pattern of criminal activity” elements of section 186.22.
The standard instruction for the gang enhancement, however (CALCRIM Nos. 1401 and 1403) limit the jury’s consideration of gang evidence to proof of intent, purpose, and knowledge. To the extent Urrutia now believes the court should have also given a clarifying instruction, he was required to request such an instruction. (People v. Maury, supra, 30 Cal.4th at p. 426.)
Urrutia also faults the prosecutor for referencing all three crimes during closing argument. However, the trial court also instructed the jury that the arguments of counsel are not evidence (CALCRIM No. 200). We must presume jurors understand and apply the instructions given them. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Callahan (1999) 74 Cal.App.4th 356, 372.)
Finally, there was the evidence concerning the Spring Street and Harb’s Market shootings unconstitutionally reduced the prosecution’s burden of proof. But since Urrutia was properly charged with murder and benefited from the motion for judgment of acquittal on the charge, there was no logical reason to prevent the remaining issues from going to the jury.
3. Ineffective Assistance of Counsel
Urrutia argues his attorney’s failure to seek a mistrial after the court granted his motion for an acquittal on count 1, to move to exclude evidence of all but the Avenue 4 incident, and failure to assert prosecutorial misconduct after the prosecutor mentioned the other charged offense during closing argument amounts to ineffective assistance of counsel. We disagree.
This is not one of those “rare” cases where “the merits of a mistrial motion: is “so clear that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854-855.)
First, as discussed above, a jury instruction was given limiting the jury’s use of the Harb’s Market and Spring Street crimes. This minimized the prejudicial effect of the evidence to show Urrutia’s “intent, purpose and knowledge” and “not for any other purpose.”
Second, the state of the evidence made it unlikely the court would have granted a mistrial. In addition, Urrutia’s counsel may have considered the motion futile given the trial court’s evidentiary rulings. Therefore, we find any prejudice from the admission of the evidence was minimized by a limiting instruction, the outcome would not have been any different had Urrutia’s counsel requested a mistrial, and there is no showing counsel’s failure to request a mistrial was because counsel misunderstood the law.
With respect to the idea that Urrutia’s trial counsel should have objected on the grounds of prosecutorial misconduct, we find a tactical reason for not doing so: Counsel could have decided that objecting would focus the jury’s attention on the other shootings in ways that would not be helpful to the defense. (See People v. Harris (2008) 43 Cal.4th 1269, 1290)
Finally, even assuming counsel erred, Urrutia fails to demonstrate prejudice. Urrutia characterizes the record as showing that the prosecutor made numerous references to the other charged crimes. No, in context of the whole record, the prosecutor only briefly mentioned them. And, as noted, the court’s jury instructions clearly directed the jury on how to consider the evidence.
4. Imposition of the Upper Term for Count 5
In his supplemental opening brief, Urrutia’s contends the court’s imposition of the upper term for count 5 violated his right to a jury determination of all critical facts supporting a greater potential sentence. (See Cunningham v. California (2007) 549 U.S. 270 (Cunningham), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Here, the trial court imposed the upper term based on “the fact that two vehicles came to the particular location, the number of participants who were present, at least five individuals having arrived” and “the volley of shots and the number of weapons that did fire that under [California Rules of Court, rule] 4.421(a)(1) this crime did involve great violence, a risk of great bodily harm, and other acts displaying the highest degree of cruelty, viciousness or callousness.” The court also noted the evidence presented showed Urrutia was “becoming fully enmeshed in [the] gang lifestyle.” Of these facts, the jury necessarily found true the fact that the crime involved great violence and a great risk of bodily harm.
Alternatively, Urrutia claims the California Supreme Court interpreted Apprendi, Blakely, and Cunningham improperly in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
The answer to this contention is: Intermediate appellate courts don’t go around overruling Supreme Court decisions. Any relief is for the high court to give.
C. The District Attorney’s Appeal
As noted, the trial court modified the verdict at Urrutia’s sentencing hearing. The trial court’s theory here was that the jury had been inconsistent in convicting Urrutia of attempted murder of the father but only attempted manslaughter of the son.
The District Attorney’s first contention is that the jury’s verdict was not inconsistent after all.
The District Attorney argues the verdicts were consistent with the facts because the jury could infer Angel was the target before Javier threw the hammer. We disagree. Angel and Javier were standing about 10 feet apart just before the shots were fired. It appears when the gunmen started shooting, Javier tackled his son and dove to the ground, seeking protection behind the van. The shots were fired in one direction, towards where Angel and Javier were hiding. The bullet holes in the van and shattered window confirm that all the shooters were aiming at the van. Thus, it is reasonable to conclude that the shooters had the same intent with respect to Javier and Angel.
The District Attorney argues the jury could have inferred a different intent with respect to Angel because Angel was trying to pick a fight with Danny Vargas before the shooting. But that fact indicates nothing about the intent of the shooters.
Nor are we persuaded by the District Attorney’s claim that a single shooter could have intended to kill Angel Salas before Javier threw the hammer. Had there been evidence to support this inference, a stronger argument could have been made, but these facts were not presented. Therefore, we find no error in the court’s modification of the verdict.
The second contention is that the modification was an abuse of discretion. But if crimes arise out of an identical incident, it is hardly outside the bounds of reason to treat both victims in the same category.
The third contention is that the court failed to give notice of its intent to modify the verdict, and denied the prosecutor a continuance to argue the issue. We might think of this contention as equal opportunity “trial by ambush.”
This is a close one. The court stated unless there was a joint request for a continuance, the proceedings would continue because both sides had announced ready for sentencing. The court then listened to statements from Urrutia’s family and Urrutia, and heard arguments from the defendant regarding the modification motion. During that time, the prosecutor had a chance to read section 1181 and present arguments regarding the modification.
In any event, any abuse of discretion was harmless. The evidence was in. It could, or could not, be squared with the attempted manslaughter verdict, and in this case it couldn’t. As the statute says: if “the evidence shows the defendant to be not guilty of the degree of crime which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime include therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial.” (Pen. Code, § 1181.1, subd. (6).) The statute thus “authorizes the trial court to exercise its independent judgment as to the sufficiency of the evidence to support the jury’s verdict or finding, even to the extent of resolving conflicts in the evidence in a manner different from the jury’s implicit findings.” (People v. Johnston, supra, 113 Cal.App.4th at p. 1307.) Indeed, it authorizes “the trial court to reweigh the evidence.” (Ibid.)
This case is very similar to Johnston. There, the trial court modified a second degree murder conviction to voluntary manslaughter on the grounds that the evidence supported a heat of passion defense. (Johnston, supra, 113 Cal.App.4th at p. 1309.) On appeal, the court found the modification was a matter of law because the trial court found the evidence did not support the jury’s conviction of second degree murder. (Id. at p. 1310.) Here, the court essentially did the same thing.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.
In Lindberg,, a white supremacist convicted of murdering an Asian man during a robbery. (People v. Lindberg, supra, 45 Cal.4th at p. 1.) He appealed the trial court’s admission of two uncharged robberies. (Id. at p. 22.) The Supreme Court held the robberies were sufficiently similar to the murder to show intent to rob. (Id. at pp. 24-25.) The court noted the following similarities between the charged and uncharged crimes: Lindberg always brought an accomplice and Lindberg was always the assailant of the two; each victim was vulnerable (alone, elderly, or outnumbered); none of the victims fought back; and each victim was assaulted whether he or she cooperated. (Id. at p. 24.)
In Lewis, the defendant was charged with first degree murder during the commission of a robbery and burglary, and during trial an uncharged robbery that occurred hours before the murder was admitted to prove intent. (People v. Lewis, supra, 25 Cal.4th at pp. 635-636.) The defendant appealed his subsequent conviction on the grounds the uncharged robbery was improperly admitted. (Ibid.) The court found the uncharged offense was sufficiently similar with the charged offense to prove Lewis had the intent to take money by force. (Id. at p. 637.) The similarities included Lewis’s use of force to overcome the victims, Lewis’s removal of the victims’ wallet from their back pocket, and using the funds to purchase methamphetamine. (Ibid.)