In re Jacob Z. CA2/8 ( 2023 )

Filed 4/13/23 In re Jacob Z. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re JACOB Z., a Person Coming B314600
Under the Juvenile Court Law.
(Los Angeles County
THE PEOPLE,
Super. Ct. No. FJ56856)
Plaintiff and Respondent,
v.
JACOB Z.,
Defendant and Appellant.
APPEAL from an order of wardship of the Superior Court
of Los Angeles County. Robert J. Totten, Juvenile Court Referee.
Affirmed.
Steven A. Torres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Jacob Z. appeals from the adjudication of the juvenile court
finding true the allegation he committed murder and declaring
him a ward of the court pursuant to Welfare and Institutions
Code section 602. Jacob contends the adjudication must be
reversed, arguing the court committed evidentiary error by
admitting hearsay gang evidence, the prosecutor committed error
during closing argument by arguing facts outside the record, and
cumulative error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, Jacob was 15 years old. He had been a
member of a tagging crew and was recently associating with a
criminal street gang called Varrio Nuevo Estrada (VNE). He
convinced 13-year-old M.C. to lure Christian Medrano to the
train tracks underneath the Cesar Chavez Avenue bridge on the
afternoon of December 5, 2019. When M.C. and Medrano arrived
at the appointed time, Jacob fatally shot Medrano in the head
and then fled the scene with M.C.
The People filed a petition pursuant to Welfare and
Institutions Code section 602 alleging Jacob had murdered
Medrano (Pen. Code, § 187, subd. (a)).
The adjudication hearing began June 29, 2021, and lasted
several days. M.C. testified pursuant to an immunity agreement
with the prosecution in which she agreed to admit to a charge of
conspiracy to commit murder, in exchange for a suitable
placement, so long as she testified truthfully about the events
surrounding Medrano’s murder.
M.C. described how events involving Jacob, Jacob’s
girlfriend Julie, Medrano, and M.F. (the older brother of a friend
from school) led to Medrano’s murder. M.C. first met Medrano in
the summer of 2019, a few months before his murder. He was in
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a tagging crew called Eagle Block Street. They texted each other
and sometimes got together to smoke pot. She was close friends
with M.F. Between June and November 2019, M.C. and M.F.
talked a lot and became “close.” M.F. sometimes carried a gun
and was in a tagging crew called In Toxic Criminals. M.C. only
knew Jacob through Julie, his girlfriend at the time. Julie went
to M.C.’s school, but they were not friends as Julie did not like
M.C.
M.C. saw a lot of photographs of Jacob on Julie’s Instagram
account. Jacob went by the name Smokey. M.C. believed Jacob
was in the gang called VNE because in a lot of the Instagram
photos, Jacob was throwing VNE hand signs and he appeared to
have a VNE tattoo on his hand. M.C. did not know if the VNE on
Jacob’s hand was a real tattoo or drawn with a pen.
She explained that sometime in November 2019, M.F.
asked her to meet him at the park. When she arrived, M.F.
asked her if she knew Medrano, using Medrano’s “street” name of
Exclusive. She said she did. At that point, she felt something
cold and metallic on the back of her neck. She tried to turn
around, but someone pushed her head to face forward. However,
she was able to briefly see that it was Jacob behind her, and he
had a gun to her head. Jacob then showed her a picture on his
cell phone of her mother and little sister walking to school. He
told M.C. he would hurt them if she did not do what he told her to
do. Jacob told her to lure Medrano to the train tracks under the
Cesar Chavez Avenue bridge at 3:00 p.m. on December 5, 2019.
Jacob told M.C. that, afterward, she should tell anyone who
asked, including the police, that she went with Medrano to the
park, but he seemed “out of it” so she left to go home at 3:00 p.m.
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and that was the last time she saw him. M.C. was frightened and
nodded her head to indicate she would do what Jacob told her.
M.C. said that sometime after that, Julie told her that she
better do what Jacob said or she was going “to get fucked up.”
Jacob texted her a map of the meeting place.
A few days later, M.C. told Medrano what happened and
that it was going to be “a set-up,” but he still agreed to go with
her on December 5, 2019. He showed her that he had a knife in
his backpack. When they were on the train heading to the
meeting, M.C. saw Julie on the train watching them.
M.C. and Medrano got off the train and walked to the
location that Jacob had texted to her. Jacob stepped out from
behind a pillar and pulled a handgun from his waistband. He
initially pointed the gun at M.C. but then turned it on Medrano
and fired three times. M.C. did not want to leave Medrano, but
Jacob pointed the gun at her again and told her to pick up the
backpack and come with him. They ran down the train tracks
and then got into an Uber car that was waiting at the curb. M.C.
was not sure who ordered the Uber to pick them up. M.C. started
to cry, and Jacob kicked her and told her to be quiet. Jacob told
the driver to drop M.C. at a McDonald’s, and he left in the car
with Medrano’s backpack.
M.C. said she initially stuck to the story that Jacob told her
to say, but she felt the police did not believe her. When her
mother asked her what was going on, she told her mother that
M.F. shot Medrano because she was scared to say it was Jacob.
Eventually, in a later police interview, she admitted to the police
that it was Jacob after they told her they had photographs and
surveillance video.
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Detective Tommy Thompson of the Los Angeles Police
Department testified about the investigation of the shooting. In
2019, he had over 18 years of experience as a homicide detective.
He discussed the investigation of the shooting, including the
recovery of surveillance video and documentation from numerous
social media accounts. A search of Jacob’s house resulted in the
recovery of one of his cell phones. The phone contained
photographs of Jacob holding a handgun, throwing gang signs,
and making reference to killing two people and to the bulletin
that had been posted in the neighborhood after the shooting.
Text messages to and from Jacob’s phone included a discussion
about Medrano and that people were “telling” on him, and Jacob
saying that Medrano was not “innocent” because he had shot at
Jacob and his crew in the past.
Officer Aaron Gruendyke testified as a gang expert
regarding VNE and the White Fence gang. Officer Gruendyke
opined that Jacob was a member of VNE with the gang moniker
of Smokey. He personally detained Jacob on two separate
occasions, and both times he was in known VNE territory
(including a street called “B Block” where several VNE members
lived), and he was with known VNE gang members at the time.
Officer Gruendyke said he was told by several unnamed VNE
gang members that Jacob was in the gang. Jacob’s counsel
objected to the testimony, citing People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez).) The objection was overruled.
Officer Gruendyke identified Jacob in a photograph of
Jacob making the customary VNE hand sign (“two up and two
down”). He explained that “throwing” gang hand signs generally
connotes membership because gang members will ordinarily
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assault, even kill, someone flashing their sign if the person is not
an actual member.
After closing arguments, the court found the petition true
and declared Jacob a ward of the court. In explaining its ruling,
the court said it found M.C.’s testimony attempting to minimize
her involvement in the murder to be “childish” and not
completely believable. However, the court explained that her
inability to accept her role in the murder did not cause the court
to otherwise disbelieve her testimony regarding how the murder
occurred. The court said it paid close attention to M.C.’s
testimony. “I watched her demeanor and her emotion. I listened
very intently. And the court concludes that what she indicated
was that Jacob committed the crime, committed the murder. I
have no doubt about that.”
At the dispositional hearing, the court committed Jacob to a
secure youth treatment facility for a maximum period of 25 years
to life. The court awarded Jacob 575 days of predisposition
credits.
This appeal followed.
DISCUSSION
1. The Gang Evidence
Jacob argues the court should have excluded Officer
Gruendyke’s opinion he was a gang member because it was
“grounded on hearsay” statements from unnamed gang members
who said Jacob was a member of VNE. He says the court
prejudicially erred in overruling his Sanchez objection and
admitting the testimonial hearsay. He argues the evidentiary
error was prejudicial because the gang evidence was offered as
the only motive for the murder, and there was otherwise no
evidence of any interaction or relationship between Jacob and the
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victim. We find no error in the admission of the testimony over
Jacob’s objection, as it was neither inadmissible hearsay nor the
only evidence of Jacob’s gang membership or the gang motive for
Jacob murdering Medrano.
In Sanchez, supra, 63 Cal.4th at page 686, the Supreme
Court held that an expert may not “relate as true case-specific
facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by a
hearsay exception.” Case-specific facts are those facts “relating to
the particular events and participants alleged to have been
involved in the case being tried.” (Id. at p. 676.)
Officer Gruendyke testified to facts based on his own
personal knowledge that supported his opinion Jacob was a
member of VNE. Officer Gruendyke had twice detained Jacob in
VNE territory in the company of VNE gang members.
Officer Gruendyke also testified he reviewed photographs
of Jacob throwing the VNE hand sign. Photographs are not
hearsay. (Evid. Code, § 1200; People v. Garton (2018) 4 Cal.5th
485, 506.) Officer Gruendyke testified, based on his experience
and expertise in gang behavior, that it was generally accepted
that someone throwing a gang hand sign and posting pictures
doing so indicates gang membership. Nothing in Sanchez
prevented Officer Gruendyke from relying on photographs in
forming his opinion that Jacob was a member of VNE. (Garton,
at pp. 506–507 [concluding expert could relay opinions based on
review of autopsy photographs].)
Moreover, Officer Gruendyke was not the only witness
whose testimony demonstrated Jacob’s gang membership or
provided a gang motive for the murder. Two other witnesses
provided evidence of Jacob’s gang membership. M.C. testified she
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knew Jacob used the nickname Smokey and that he was a VNE
gang member. She said he and his girlfriend regularly posted
pictures of him on social media throwing the VNE hand sign and
he had VNE written or tattooed on his hand. Detective
Thompson also testified to numerous photographs on social
media obtained during the investigation that showed Jacob
holding a gun and throwing VNE hand signs.
In light of Officer Gruendyke’s testimony and M.C.’s
testimony, which was based on facts within their personal
knowledge, the admission of the statements of unidentified gang
members to show Jacob’s gang membership was harmless,
assuming it was error.
2. The Prosecutor’s Argument
Jacob next contends the prosecutor committed misconduct
during closing argument by arguing facts outside the record.
Toward the end of the rebuttal portion of the prosecutor’s
argument, the court interrupted to ask counsel to address the
fact that M.F.’s account was used to arrange for the Uber driver
and the defense argument that that evidence showed it was more
likely that M.F. was the shooter and not Jacob. The prosecutor
responded, saying “People can call Uber[] for other people. You
don’t have to have an account. . . . [T]hat doesn’t mean the
person who actually got into the car was [M.F.].” The prosecutor
continued, “Messages could have been sent . . . . We know [Jacob]
had at [least] three different phones. . . . [¶] . . . [¶] . . . The
issue is who got into the Uber. It’s not who made arrangements
back at the park.” Jacob says the prosecutor was testifying
instead of arguing evidence in the record because there was no
witness who testified to these alleged facts. He argues the
improper argument was highly prejudicial because it tried to
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explain away the defense theory that M.F. had actually been the
shooter and it was more reasonable he ordered the Uber ride for
himself to flee the scene.
It is undisputed Jacob did not object to the statements he
now contends constitute improper argument. It is well settled
that a timely and specific objection at trial “is a necessary
prerequisite to preserve a claim of prosecutorial misconduct for
appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328;
accord, People v. Huggins (2006) 38 Cal.4th 175, 205 (Huggins).)
Jacob has therefore forfeited the contention on appeal.
Jacob argues in the alternative that if his contention is
forfeited, then his trial counsel was ineffective for failing to
object. Jacob’s burden to establish ineffective assistance on direct
appeal is significant. Jacob must demonstrate “both that trial
counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is
reasonably probable a more favorable determination would have
resulted in the absence of counsel’s failings.” (People v. Cudjo
(1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984)
466 U.S. 668, 687–696.) Moreover, an attorney’s failure to object
rarely constitutes ineffective assistance. (Huggins, supra,38 Cal.4th at p. 206.) And where, as here, the record on appeal
does not show why counsel failed to object, “ ‘unless counsel was
asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation, the claim must
be rejected on appeal.’ ” (Ibid.) Jacob has not satisfied this
standard.
In any event, the record does not show misconduct.
Detective Thompson, an experienced homicide detective, testified
it was not unusual for an investigation to show that another
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person ordered or arranged an Uber ride for someone else and
that based on the overall investigation, he was “confident” Jacob
was the individual responsible for the shooting. He believed it
was possible that someone else ordered the Uber ride to pick up
Jacob and M.C. using M.F.’s account. The prosecutor’s responses
to the court’s questions were therefore based on reasonable
inferences from this evidence.
3. Cumulative Error
Finally, Jacob says the improper admission of gang
evidence from Officer Gruendyke and the prosecutor’s misconduct
during closing combined to deprive him of due process and a fair
trial. Since we find no error, we find no basis for cumulative
error.
DISPOSITION
The order of wardship is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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