People v. Mendoza CA1/2

Filed 12/9/14 P. v. Mendoza CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A136323
v.
FERNANDO FLORES MENDOZA, (Sonoma County
Super. Ct. No. SCR569814)
Defendant and Appellant.
I. INTRODUCTION
Defendant was convicted of the first degree murder (Pen. Code, § 187, subd.
(a))1of Luis Suarez as well as active participation in a criminal street gang (§ 186.22,
subd. (a)). The jury also found true allegations that defendant was an active participant in
a street gang who carried out the murder to further the activities of the gang (§§ 190.2,
subd. (a)(22) and 186.22, subd. (b)(5)), personally and intentionally discharged a firearm
causing death (§ 12022.53, subds. (b)-(e)) and personally inflicted great bodily injury
(§ 12022.7, subd. (a)). Defendant was sentenced to life without the possibility of parole
with an additional 25 years to life for use of a firearm causing injury and one year for a
prior prison term.
On appeal, defendant argues that the court erred in denying his new trial motion
based on his assertion that his trial counsel was ineffective, that there was insufficient
evidence to support the gang allegations, that the conviction for participation in a
1
All further statutory references are to the Penal Code, unless otherwise noted.
1
criminal street gang must be reversed and, if the conviction on count 2 is upheld, the trial
court was required to stay the term pursuant to section 654.
The conviction for participation in a criminal street gang must be reversed because
defendant committed the murder alone. With that exception, we find no error and the
remainder of the judgment is affirmed.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Murder
The evening of April 6, 2009, Gerardo Munoz was sitting on the front porch of his
house in Santa Rosa, California, when he heard what he thought was “a little bang in a
garbage can down the street.” Across the street, he saw a young man wearing a hat walk
by and then cross over to the sidewalk in front of Munoz. Munoz couldn’t see the young
man’s face and didn’t recognize him.
Munoz lost sight of the young man. A minute later, a car passed, “running slow”
and then stopped. He “heard a couple words said” and then a gunshot. Munoz walked
toward the car and saw the driver, a man in his early to mid 20’s with short hair wearing a
hoodie or sweatshirt. Munoz hid himself.
As soon as the car drove off, he went out to the sidewalk and found a body lying
there. It appeared to him to be the same person who had walked by his house a few
minutes earlier. He tried to administer CPR but the person was already dead. His wife
called 911. This call was received at 9:38 p.m.
Munoz described the car as a dark red sedan with an “L” shape, or a straight line,
on the trunk. The tail lights were “like five side corner lights . . . a five side pentagon
light.” The car’s wheels were “mag like wheels . . . old style wheels, the chrome
wheels.” At trial, Munoz was shown photographs of rims and a trunk of a car that was
driven by defendant and his then-girlfriend, Nora Montes. He said they were similar.
When he was earlier shown the car by Santa Rosa police, Munoz again said he thought
the wheels were similar to those of the car he remembered seeing the night of the murder.
Bradley Conners, a detective with the Santa Rosa Police Department, arrived at
the scene at 10:00 p.m. Conners ultimately determined the identity of the victim, whose
2
name was Luis Suarez. Conners noticed that there were no bullet casings at the scene
and believed it was likely that the weapon used to murder Suarez was probably a
revolver. He based this opinion on the fact that there were no casings found at the scene
and unlike other guns a revolver’s spent cartridges remain in the gun’s cylinder after
firing.
Kelly Arthur-Kenney performed an autopsy on the victim on April 8, 2009. She
discovered five gunshot wounds and recovered four bullets during the autopsy. In
Arthur-Kenney’s opinion Suarez “died as the result of multiple gunshot wounds [to] his
torso.”
B. Testimony Regarding Events Before and After the Murder
1. Nora Montes
The day after the murder, April 7, 2009, the police took defendant, his girlfriend
Nora Montes, and defendant’s cousin, Marco Meza, into custody. Detective Conners
testified about his interview of Montes at her home on April 9, 2009. Montes told him
that on the night of the murder she was working at Arby’s in Santa Rosa. She called
defendant at home, where they lived with his parents, at 9:28 p.m., a time about which
she was absolutely certain because she “checked the caller ID” on defendant’s home
phone. Defendant picked her up at work by at least 10:00 p.m. and possibly later.
Montes told Conners she thought it was possible for defendant to leave home at 9:30
p.m., go to the place where the crime was committed and then on to Arby’s to pick her up
by 10:00 p.m.
Montes also told Detective Conners that when she woke up the next day (April 7,
2009) at around 11:00 a.m., defendant was not home. Later that afternoon, defendant
told her to go with his cousin, Guadalupe Flores, to pick up the burgundy colored Lexus
he and Montes both drove. Montes told Conners “that she and [defendant] had had a
conversation about the fact that there had been a shooting in the South Park area and that
he told her that he wanted her and their baby to be safe, so she needed to get rid of the
vehicle.”
3
Montes also testified about the events that occurred the day and night of the
murder and in the days afterward. On April 6, defendant dropped her off at work earlier
that day, driving the burgundy Lexis. Her shift ended that day at around 10:40 p.m. She
called defendant at home at 9:28 p.m., a time she remembered specifically because, as
she explained, “I looked at the . . . caller ID when I came home because I always check
the caller ID.” She recalled seeing several other calls, but she did not check the time
those incoming calls were received, despite the fact that she had claimed that she
“always” checked the caller ID.
Defendant arrived “right away” after she called him and was alone in the car.
Montes put the time of his arrival at her work at “9:30, 9:30 something he was already
outside.” She did not recall making a contradictory statement to the police earlier that
defendant arrived at her work at around 10:30 p.m. Montes admitted that it would have
taken defendant between 10 and 15 minutes to get to her work from his house and that he
actually probably arrived to pick her up at around 9:40. She also did not recall telling the
police earlier that her child was with defendant when he picked her up that night. She
admitted that she lied to the police about that fact.
The next day, April 7, when she woke at 8:00 a.m., defendant was with her. She
then dropped him off at a friend’s house. She didn’t know who the friend was. She later
went to work, and then met defendant at his cousin Guadalupe Flores’s house after work.
At around 11:00 p.m., she and defendant did some errands, and she dropped him back off
at Flores’s house. At about 1:00 a.m., he returned. When she woke the following
morning he was gone, and then returned a short while later with his cousin, Marco Meza.
At around 11:00 a.m. on April 8, she, Meza and defendant went to several car
dealerships in order to trade in the Lexus. According to Montes, they were trading in the
car because defendant had told her a week earlier “that he was in a fight. And since we
lived in the area of South Park, I didn’t want to get my windows . . . broken or my tires
slashed . . . because . . . he was in a fight with some Norteños.” Defendant also said that
“he wanted me and him and the baby to be safe.”
4
Montes agreed that defendant may have made this comment about selling the car
to keep them safe after he showed her a newspaper article about the April 6 murder of a
Norteño. Montes also admitted that she initially gave the police other, more neutral
reasons for wanting to trade the car in before she told the truth. In fact, she had not
talked to her mother-in-law, the car’s owner, about trading it in, and she did not have the
pink slip with her when she was visiting dealerships.
As she was driving away from the car dealerships, she was stopped by the police.
Montes was ultimately charged with being an accessory to murder and released later that
night.
2. Marco Meza
Meza testified that on the date of the murder, he was a member of a Sureño street
gang called “Angelino Heights.” The weekend of April 6, 2009, he was with his mother
in Lake County, where he had lived his entire life. The weekend before April 6, he had
been in Santa Rosa for a day and night attending a memorial for a fellow gang member.
His sister, Guadalupe Flores, and her boyfriend Jose Orozco, were with him. Flores
drove them to the memorial in her car, a burgundy Honda Accord. The Honda was a
similar color to the Lexus that Montes and defendant both drove.
On April 6, Meza worked with his dad in the morning and then went to his
brother, Jamie Flores’s, house. He was there for three or four hours. He and Jamie left
Jamie’s house between 5:30 and 6:00 p.m. Jamie drove them in his white Honda. After
they left Jamie’s house, they “got into a fight with the enemy gang members.” As the
incident was occurring, Flores drove by with her son, who was two or three years old.
The fight ended when Flores told him the police were coming.
Concerned that the police were looking for them, he and Jamie got back in the car
and went to Hefrain Panteleon’s house in Kelseyville. He and Jamie were at Panteleon’s
house for two hours.
Meza next had a friend give him a ride to Hopland, and from there he met his
sister and drove with her in her red Honda to her house in Santa Rosa. At around 10:30
5
p.m. the evening of April 6, he and Flores picked up a friend and then went back to her
house, where they stayed the rest of the evening.
At around 11:30 or 12:00 p.m., defendant called. Defendant told Meza that “it
finally happened.” Meza understood that to mean that defendant “had killed somebody.”
Meza explained that he “had seen one of his [defendant’s] guns two months before, and
he would talk about wanting to put in work and stuff” on behalf of the gang.
Meza went to sleep and in the morning, defendant came over. Defendant showed
Meza a newspaper story about the murder. After the other people in the house left to do
an errand, defendant and Meza had a longer conversation about the incident. Defendant
told Meza that the victim was a “mayate,” an “African-American guy, with a[n] afro.”
Defendant described the incident to Meza as follows: “[H]e [defendant] was driving
around with his loud music in the car. He had seen these two guys, and they were mad-
dogging him, giving him dirty looks. So he goes up to the park, and he gets off. He’s
walking around. He don’t see nobody, so he gets back in his car. And that’s when he
drives away, and he sees that same guy. And that’s when everything happened, I guess.”
Defendant said the man he killed was alone, and “he [defendant] walked up to him and
told him that he was his friend, that he was a Norteño also. And he had shot him.”
Defendant also told Meza that he then went to Hector Santana’s house to drop off the gun
and the car. Meza had seen the gun before: it was a .38 revolver that defendant generally
kept in a safe in his mother’s house.
Meza hung out with defendant for three or four hours by themselves at Flores’s
house. At some point, Flores came home, and defendant’s girlfriend, Montes, and her
daughter also came over. Montes dropped her daughter off with defendant so she could
go to work. Montes’s daughter spent the night at Flores’s house with defendant.
During the day, while he was with defendant, Meza admitted texting “some
girls . . . that like gangsters” and “took credit” for the murder.
With regard to his gang membership, Meza testified that he became a member of
Angelino Heights when he was 12. Defendant became a member sometime before the
murder, although Meza could not remember the exact date. Meza was present during
6
defendant’s “beat down,” when he was initiated into the gang. Jose Orozco was also a
member of the gang, and because he was in the gang a few years longer than Meza,
Orozco was considered “OG to me or to the newer generation.”
Meza was asked what would happen to a person “who brags about doing a murder
of a Norteño who didn’t actually do that murder and is a gang member.” Meza testified
that in this situation, “[t]hey can consider you a snitch or check you, which is a beat
down, or stab you or—it depends how personal they take it.” He did not, however, take
these consequences into consideration when he lied about his role in the murder because
he was “on drugs.” Specifically, he had smoked marijuana and done methamphetamine
on the day after the murder.
Defendant and Meza stayed at Flores’s house overnight on April 7, and both took
showers while they were there. Defendant had Flores go and get him a change of clothes
earlier in the day. At the same time, defendant asked her to give Montes a ride to pick up
defendant’s car so she would have transportation to get to work.
On April 8, defendant woke Meza and asked him if he wanted to go to his
(defendant’s) mother’s house. At around 9:30 a.m. they went to her house for about two
hours. On the way, they stopped at 7-Eleven and bought a newspaper. There was an
article in the paper about the murder. There was a picture of the victim and defendant
said, “look, that’s him.”
At defendant’s mother’s house, he, Montes and defendant went into the back of
the house and smoked some methamphetamine. They also looked at the article, and
talked about the fact that there was a mention of a “candy red apple car . . . .” Montes
and defendant “got worried and were like, they got the description. So they were talking
about going to a dealer and changing the car.” Meza went with them in the burgundy
Lexus to a car dealer. They stayed at that dealership for 10 or 15 minutes and then went
to another one. On the way, Defendant and Montes talked about how “[t]hey didn’t want
to take in the car because it was salvaged, so they were trying to . . . get rid of the
car . . . .” After spending 10 or 15 minutes at the second dealership, they left to get
something to eat and were pulled over by the police almost immediately.
7
Meza described his attitude during his initial interview with the police as “not
cooperating.” Three weeks later, after he “realized [he] wasn’t going to go down for
something [he] didn’t do” he was again interviewed by the police, with a lawyer present.
He told the police at that time that defendant was the killer. He did so because he
“thought [defendant] was going to stick up for his own rap, and I realized he wasn’t. So I
wasn’t going to go down for it.”
3. Jose Orozco
Jose Orozco was Guadalupe Flores’s boyfriend. On April 6, 2009, Orozco, who
lived in Santa Rosa, was in Lake County visiting Flores at her mother’s house. He spent
the night at the house on April 6. During the day, Flores left the house in a red Honda to
pick something up at her brother’s (Marco Meza) house. Later that day, he and Flores,
who was still driving the red Honda, picked up her brother, Marco Meza, at the Hopland
Grade. Meza had been in a fight and they were going to take him to Santa Rosa. During
the drive, Meza used his cell phone.
They arrived at Orozco’s house in Santa Rosa that evening at around 9:00 or 9:30
p.m. Half an hour after they arrived in Santa Rosa, Flores left in her car with Meza.
They came back about 15 minutes later with a friend named Cesar. They stayed together
all night. About 45 minutes after Orozco woke up the next morning, defendant arrived.
He had a newspaper with him that he showed to Orozco. He told Orozco that he had
“domed some mayate.” Orozco explained that “mayate” was a “put-down” term to
describe African-Americans and “domed” meant “[s]hot him in the head.”
Orozco and defendant discussed the event for “a couple hours.” Defendant told
Orozco “how he rolled up on the guy and asked him if he was—if he banged, and then—I
don’t know. I guess I don’t know what the guy said, but that’s when he [defendant] said
he just started shooting at him.” At some point, defendant took a shower. He left a red
bag of clothes at Orozco’s house. During this time, Flores left the house to return to Lake
County to pick up some things she needed to bring back to Santa Rosa.
8
In his initial interview with the police about the April 6 murder, Orozco was not
truthful because he didn’t want to be involved. In addition, as a gang member, he would
not talk to the police about a murder.
With regard to his gang affiliation, Orozco testified that as of April 6, 2009, he
was a member of Angelino Heights, a Sureño gang. At that point, he was an “O.G.” or
“original gangster”—“one of the guys that started, started it or been in it longer than the
other ones.” Cesar, Meza and defendant were also members at that time. Orozco had
been convicted of a gang-related crime (felony vandalism) prior to the April 6 murder.
The crime had been committed for the gang’s benefit and one condition of his probation
was that he was not permitted to associate with gang members.
4. Guadalupe Flores
Guadalupe Flores is defendant’s cousin. Marco Meza is her brother, Jamie Flores
her twin, and Jose Orozco her boyfriend. On April 6, 2009, she was living in Lake
County with her mother and in the process of moving to Santa Rosa to a studio apartment
she planned to share with Orozco and her son. Meza and Jamie lived together in Lake
County.
On April 6, in the morning, she drove by Meza and Jamie’s house in Lake County.
As she pulled into the driveway, her brothers told her to follow them. She followed them
down the street and she saw Meza get out of the car “and start fighting a guy.” She
intervened and told them the cops were coming and to stop fighting. Somewhere
between 4:30 and 6:00 p.m., Meza and Jamie left in Jamie’s car. Flores went to her
mother’s house and Jamie and Meza went to a friend’s house. At around 8:00 or 9:00
p.m., after going back and forth between that friend’s house and her mother’s house, she
picked up her son and her boyfriend so they could go to Santa Rosa. Meza didn’t want to
go with her in her car at that point, for fear that the police would recognize her car and
know he had been involved in the fight. She met him instead in Hopland at around 10:00
9
p.m., after a friend dropped him off there. They bought gas in Cloverdale with her debit
card.2
When they arrived in Santa Rosa, Flores took her brother to go pick up a friend of
his named Goblin.3 They hung out and then went to sleep at around 1:00 or 1:30 a.m.
She was woken at around 7:00 or 8:00 a.m. when defendant knocked at the door. He was
holding a newspaper. Defendant said that “the guy I shot died.” Defendant spent the
night of April 7 at her house. During the day of the April 7th, Flores picked up Nora
Montes and took her to get her car, a Lexus. Flores went back to Lake County to pick up
something she needed there, and returned to her house in Santa Rosa at around 9:00 p.m.
Defendant and his daughter were at her house, along with Jose Orozco, Meza and
Flores’s son.
The next day, April 8, defendant and his daughter were gone when Flores woke
up. Later in the day, Flores was arrested and taken to the police station. Initially, she
gave the police false information because she was nervous. When she was asked about
Meza, she told the truth about their whereabouts the day of the murder.
A short time after the first interview, Meza’s lawyer advised her to talk to the
police again. During this interview, she told the police the truth, including the fact that
she “knew who’d killed the guy.” She was interviewed by the police a second time
shortly afterwards. At that time, she told the police that defendant said to the people in
the house that “he shot a wanna be nigger.” She didn’t recall hearing him use the word
“mayate.”
Although defendant had told her to burn his clothes, she did not and in fact turned
them in to the police department.
2
The timestamp on the gas station receipt was 22:23:59. The receipt was dated
April 6, 2009.
3
Goblin, whose given name is Cesar Cuevas, testified that defendant came to
Flores’s house that morning.
10
During the day of April 7, defendant used her cell phone to call and text people.
She saw one text that had a reference to a song with the words “chap killer” in it. “Chap
killer” refers to killing Norteños.
Flores testified that it was difficult for her to testify, that she feared retaliation, and
that she had moved, with the assistance of the district attorney, out of Lake County.
With regard to gang activity, Flores knew her brother Marco Meza, her boyfriend
Jose Orozco and defendant were Sureños, and members of the Angelino Heights gang.
C. Cell Calls
Defendant’s cousin, Marco Meza, used a cell phone on April 7, 2009, to send texts
in which he appeared to take credit for the April 6 murder. However, cell phone logs and
cell phone tower locations pinpointed Meza’s whereabouts the night of the murder, and
suggested that although the day after it occurred Meza claimed to have committed the
murder, he was not actually in Santa Rosa when the murder took place. In contrast,
defendant’s cell phone use indicated that he was in Santa Rosa that evening.
Meza testified that the cell phone he used on April 6, 2009, and April 7, 2009, was
not his, but was registered to his sister’s boyfriend, Jose Orozco.4 He borrowed this
phone because he was “on the run” and “didn’t want the cops to track [him] down.” On
April 6, 2009, this phone was in his possession at all times.
District Attorney Investigator John McCutcheon testified that the phone associated
with Meza was used to place 53 calls made between 8:00 p.m. and 11:00 p.m. on April 6,
2009. He stated that the pattern of the calls was consistent with the phone being used
first in Lake County between 8:00 p.m. and 10:00 p.m. Tower usage records then
indicated that at around 11:00 p.m., Meza’s cell phone usage engaged phone towers in
Santa Rosa, which would be consistent with Meza driving with his sister from
Kelseyville in Lake County, then over the Hopland Grade and into Santa Rosa.
4
This phone, which had the number 304-6775, was the phone used to send
messages on April 7, 2009, claiming responsibility for the April 6 murder.
11
Detective Conners obtained a cell phone log for Meza’s phone, and discussed this
log with Meza. From the times and locations reflected by the log, it was apparent that the
phone used by Meza was used in Lake County at the time the killing occurred. These
logs included texts at 2033, 2134, 2332, that said, respectively “[N]ada,” “I just cracked a
buster” and “going to Santa Rosa. Had to shake the stop.”
McCutcheon also stated that a number associated with defendant5 was in use at
various times between 7:27 p.m. and 9:03 p.m. The phone used a cell tower north of
Guerneville Road in Santa Rosa.
Meza testified at length about the texts he sent the day after the killing in which he
claimed responsibility for the killing. The afternoon of April 7, 2009, while he was at
Guadalupe Flores’s house he texted Jenee Perez (“the girl that [he was] trying to impress
by all this”) that he had arrived in Santa Rosa at 8:00 p.m. the night before. As their texts
went back and forth Perez “seemed to indicate that she didn’t believe [he] had killed this
guy . . . .” This made him angry because he was “try[ing] to get the credit . . . to impress
her . . . to make myself look good.”
Meza’s next text said “LOL . . . is that who I got last night in South Park?” In the
next text, he wrote “Don’t fucking say shit, though. Well, that’s the life of a gangster.
He told me he was a Norteño, so I let him have it, chap killer.” In the texts that followed
he said “[w]hy the fuck you crying? . . . [¶] . . . [H]e told me he was a Norteño. Shot that
fool. He was screaming like a bitch. That’s when I shot the rest. Don’t be sad. Be
glad.”
At that point in the conversation, Defendant arrived, and Meza told Perez that he
couldn’t answer. Nevertheless, he then texted her, “fuck that. They took my homey—
my home 13 Moreno. RIP life 3 shit. They had it coming. About time we get pay
5
Defendant’s sister, Yolanda Mendoza, testified that she had a cell phone with the
number 228-4464 and defendant borrowed it at some time in April 2009.
12
back.6” Meza described the victim to Perez as: “he was like a afro, kind of looks black.
What else you want to know.” He also told her that the victim was wearing a white shirt
and that “the newspaper got their shit twisted. It wasn’t a drive-by.”
The defense rested without calling any witnesses.
The jury convicted defendant of first degree murder (§ 187, subd. (a)) and active
participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true
allegations that defendant was an active participant in a street gang who carried out the
murder to further the activities of the gang (§§ 190.2, subd. (a)(22) and 186.22,
subd.(b)(5)), personally and intentionally discharged a firearm causing death (§12022.53,
subds. (b)-(e)) and personally inflicted great bodily injury (§12022.7, subd. (a)).
Defendant was sentenced to life without the possibility of parole with an additional 25
years to life for use of a firearm causing injury and one year for a prior prison term.
This timely appeal followed.
III. DISCUSSION
A. Ineffective Assistance of Counsel
Following the guilty verdict, defendant hired new counsel and unsuccessfully
moved for a new trial. Defendant now contends the trial court erred in denying his
motion because counsel was ineffective on two grounds.7 First, he asserts that counsel
mishandled his alibi defense in that he neither called defendant’s parents to the stand nor
sufficiently investigated his alibi defense. Second, he contends trial counsel denied him
his constitutional right to testify. He is incorrect on both grounds.
6
The reference in this conversation to “Moreno” was to a gang member who had
died four years earlier, for whom a memorial had been held in Santa Rosa on April 4.
7
In his new trial motion, defendant also argued that counsel was deficient because
he “was disloyal,” in that “[h]e always believed [defendant] guilty . . . .” In addition, he
contended that counsel failed to explain why the tattoos defendant got while in prison that
indicated he had killed rival gang members were not claims to be taken seriously.
Although he mentions these matters in his summary of the issues raised below, he does
not make these arguments on appeal, and therefore, we do not address them.
13
1. Factual Background
Defendant’s alibi was that he was at home with his parents, his girlfriend, Nora
Montes, and their child in Santa Rosa when the murder took place, leaving only long
enough to drive Montes to work in the mid-afternoon and then again to pick her up in the
evening. Based on the time of the 911 call (9:38 p.m.) and Gerardo Munoz’s testimony,
Luis Suarez was killed within minutes of the time Montes says she called him to pick her
up. Given that defendant lived “a few blocks” from the shooting, it was possible that he
murdered Suarez, something Montes admitted to Detective Conners.
At the core of defendant’s alibi was Montes’s testimony at trial that she called
defendant on his parents’ home phone to ask him to pick her up from work. She recalled
the exact time of the call—9:28 p.m.—because she checked the caller ID of the home
phone. She testified that defendant arrived 5 or 10 minutes later to pick her up.
When questioned about the precision with which she could identify the time of
this particular call, Montes testified that she checked the home phone’s caller ID for the
time record, although she did not check the time to any other calls on the phone, could
not remember the times for any other calls she might have seen, or recall the identity of
other callers who might have made calls to that same number.8
However, in her interview with Detective Conners at her home on April 9, 2009,
Montes gave a different timeline for the events of the evening. Montes told Conners that
she was working at Arby’s in Santa Rosa the night of the murder and defendant picked
her up from work. Conners testified that although Montes “didn’t give . . . a specific
time . . . she said that it was at least 10 o’clock p.m.” Montes told Conners, consistent
with her testimony at trial, that she called defendant at 9:28, a time about which she was
absolutely certain because she “checked the caller ID.” Montes told Conners she thought
it was possible for defendant to leave his home at 9:30 p.m., go to the place where the
crime was committed and then on to Arby’s to pick her up by 10:00.
8
However, she later testified that she did remember from the caller ID that
defendant’s sister had called at about 9:20 p.m.
14
At the hearing on defendant’s new trial motion, defendant’s mother testified that
defendant’s father received a phone call from Montes at around 9:30 p.m. on the night of
the murder, handed the phone to defendant, and defendant left the house shortly
afterwards in his Lexus. Defendant’s mother had no independent memory of the time of
the call, but had simply heard about it from others.
Trial counsel was aware that defendant’s parents would testify that the phone call
to defendant at their house occurred at 9:30 p.m. According to defendant’s parents and
Montes, trial counsel confirmed with them that they would not lie for defendant. They
further testified that counsel told defendant’s parents they were his main witnesses and
without them, defendant would be a “lost cause.” Defendant testified that trial counsel
also set up but then cancelled an appointment to discuss the parents’ testimony.
Ultimately, defense counsel did not call defendant’s parents as witnesses, although
he did place them on the witness list. Instead, as counsel explained at the hearing on the
new trial motion, his strategy was to present defendant’s alibi, which he considered
questionable, through the two strongest methods: Montes’s testimony on direct
examination and excerpts of defendant’s interviews with the police, which were
videotaped and shown to the jury. In these excerpts, defendant talked about his
whereabouts the night of the murder.
Defendant testified that counsel admitted to him that he had been deficient in not
calling defendant or his parents to testify. Defense counsel denied doing so. Instead,
when defendant asked him to bring a new trial motion based on ineffective assistance of
counsel, trial counsel told him that a lawyer does not make an argument which he
believes has no legal basis. Defendant later claimed, however, that he did not remember
counsel saying this.
At the hearing on the new trial motion, and in a declaration filed by the People in
their opposition to defendant’s motion, trial counsel justified his decision not to call
defendant’s parents on the basis that he believed, on balance, their testimony would not
be helpful to defendant. The parents did not have an explanation for why they waited to
report defendant’s alibi to the police until he was arrested and charged with murder. He
15
believed that the delay in reporting defendant’s alibi would appear to be disingenuous
and as a result their testimony less believable to the jury. Moreover, counsel made the
strategic decision that an alibi presented through defense witnesses would undercut the
advantage of having Montes present defendant’s alibi as a “friendly” prosecution witness
who would seem more reliable than defendant’s parents. He also believed that having the
alibi further presented through cross-examination strengthened its believability.
With regard to his right to testify, defendant stated in his declaration that counsel
told him that he shouldn’t testify because the jury would learn he had a prior criminal
record. Defendant’s criminal record “consisted of a single adult conviction for a felony
violation” for possession of a switch-blade. He also told defendant that one of his duties
as a lawyer was to refrain from presenting perjured testimony, which made defendant
think he believed he (defendant) was lying. Counsel did not tell him that the final
decision to testify was his and had he known that he would have testified. Defense
counsel told his client that “if he insisted on testifying that that would be taken up with
the court.” Defendant interpreted this statement as a threat that the court might not allow
him to exercise his right to testify in his own defense.
Trial counsel disagreed with defendant’s account of their discussions regarding his
right to testify. He had in fact explained to his client that he had a right to testify if he
chose and that he would honor that decision. He believed defendant’s alibi was a weak
defense because even given the time of the phone call there was still a window within
which the defendant could have committed the murder. He was relieved his client chose
to follow his recommendation that he not do so because he “felt very strongly that if he
testified and was asked to explain his statements and behavior following his arrest . . . a
rapid conviction would follow.”
With regard to his statement to defendant that if he insisted on testifying this
matter would be “taken up” by the court, he explained that this was a reference to the
issue of whether defendant’s disregard of his trial strategy would necessitate the
substitution of another attorney as defendant’s lawyer.
16
Defendant’s contention that counsel failed to investigate his alibi was based on the
fact that he knew that counsel had hired a private investigator, but he did not know
whether counsel “made any effort to develop additional corroboration of [his] alibi.”
Counsel, however, stated in a declaration that he went to the scene of the murder 6 or 7
times and twice drove the distance “of a few blocks from the Mendoza house to where
the murder took place” in order to check the distance between the scene of the murder
and defendant’s house.
The trial court denied the new trial motion on the ground that defendant had failed
to establish he was prejudiced by counsel’s performance.
The court specifically found that counsel’s decision not to call certain witnesses to
the stand (including defendant’s parents) were tactical decisions and not prompted by
improper motives such as racial animosity or a belief that the witnesses would be lying.
Further, the court held that defendant’s claim failed because he presented no evidence
that he was prejudiced by the manner in which counsel presented his alibi. The court
observed that “the jury was presented with alibi evidence . . . that [defendant] provided to
the police following his arrest, the testimony of the police detectives regarding their
interviews with defendant and Nora Montes, and the trial testimony of Ms. Montes.” The
court also noted that “[a]lthough Ms. Montes was called as a prosecution witness at trial,
she provided testimony that was supportive of defendant’s alibi claim.” The prosecutor
not only questioned Montes closely regarding her alibi testimony, but also discussed it in
closing argument. The court concluded that “this is not a case where an alibi defense was
not in front of the jury.” The court also found that there was no reasonable probability
that defendant’s parents would have made any difference in his presentation of his alibi in
that “neither parent could place defendant anywhere other than the murder scene at the
time of the shooting.”
The court noted that defendant failed to present any evidence to back up his
statement that counsel had not investigated his alibi defense, nor had he established that
any further investigation would have established that defendant was somewhere else at
the time of the shooting.
17
With regard to defendant’s assertion that counsel misinformed him regarding his
right to testify, the court found that “trial counsel did inform defendant that the decision
whether to testify was defendant’s decision to make.”
Having concluded that defendant failed to show any prejudice from counsel’s
performance the trial court denied his motion for a new trial.
2. Discussion
In general, a defendant who claims that counsel was ineffective must show both
that counsel’s performance was deficient and that, as a result, defendant was prejudiced.
(Strickland v. Washington (1984) 466 U.S. 668, 687.) In reviewing ineffective assistance
of counsel claims, appellate courts are wary of second guessing defense counsel’s tactical
decisions. (People v. Hinton (2006) 37 Cal. 4th 839, 876; People v. Holt (1997) 15
Cal. 4th 619, 703.) Thus, when we review a trial court’s finding that a defendant received
adequate representation, we defer to the court’s decision. (People v. Andrade (2000) 79
Cal. App. 4th 651, 660.) As the Andrade court puts it: “ ‘After all, the trial court is in the
best position to make an initial determination, and intelligently evaluate whether
counsel’s acts or omissions were those of a reasonably competent attorney.’ [Citation.]”
(Ibid.) For that reason, on appeal we must give great weight to the trial court’s findings
regarding competency and “[a]bsent a showing of clear and unmistakable abuse, we will
not disturb his decision. [Citations.]” (People v. Wallin (1981) 124 Cal. App. 3d 479,
483.)
We agree with the trial court that defendant failed to show he was prejudiced by
counsel’s decisions with regard to the presentation and investigation of his alibi defense
and that, in fact, counsel did inform him of his right to testify. As the court pointed out,
defendant did not put forward any evidence that further investigation of his alibi claim
would have shown that he was, in fact, somewhere else when the murder was committed.
In addition, defendant’s parents’ testimony would not have done anything more than
corroborate Montes’s testimony that defendant received a call from her at around the time
she said she made this call. Nothing defendants’ parents could have said would have
changed the fact that between 9:28 p.m. and 9:38 p.m. defendant would have had time to
18
drive a few blocks to the scene of the murder and commit the crime. In fact, Montes
stated that she believed he would have had time to do so. Moreover, Montes’s testimony
regarding the specific timing of the call, her shifting story about when defendant arrived
to pick her up from work, and the parents’ late decision to corroborate her memory of the
timing also undermined the alibi.
Further, although the trial court did not specifically find that counsel’s
representation was not deficient, the record supports a conclusion that counsel’s decisions
regarding the presentation of defendant’s alibi defense were reasonable tactical decisions
designed to present what was a weak story in the best light possible. Counsel’s decision
to present this defense9 through Montes’s testimony as a witness for the People was a
reasonable decision designed to give her questionable story an aura of credibility since
she was on the stand testifying as a “friendly” witness for the state. Similarly,
defendant’s description of his whereabouts on the night of the murder was presented to
the jury in the form of videotaped interviews he had with the police after his arrest and
thus he was not subject to damaging cross-examination. Finally, because defendant’s
parents would not have added anything new to the alibi evidence, and might well have
served to emphasize its weakness upon cross-examination, counsel’s tactical decision to
forgo using them as witnesses was sound.
Defendant’s counter-argument, namely that his parents’ testimony would have
strengthened Montes’s story, does not mean that counsel was ineffective in choosing not
to call them. As counsel explained, defendant’s alibi was a weak one, and would, in his
opinion, be made even weaker by the testimony of his parents. Thus, even if the strategy
suggested by defendant might also have been an acceptable course, counsel was not
required to adopt this tactic. He employed a trial strategy that he, not incorrectly,
9
The record belies defendant’s argument that counsel failed to present his alibi.
As we have described, the alibi was presented to the jury in the form of Montes’s
testimony and the videotape of defendant’s interrogation. Counsel’s decision not to focus
on what he believed to be a weak defense in closing argument was clearly a tactical
decision rather than ineffective assistance.
19
believed would be more effective. In so doing, he did not render defendant ineffective
assistance.
Defendant argues that the court could have found that counsel’s alleged failure to
do anything of substance to investigate defendant’s alibi was prejudicial so long as it
found that “the defense was potentially meritorious and therefore could have affected the
verdict.” He cites People v. Shaw (1984) 35 Cal. 3d 535, 541 (Shaw) and People v.
Frierson (1979) 25 Cal. 3d 142, 163 (Frierson) in support of this argument.
Neither case is helpful, however. In Shaw, defense counsel learned from
defendant that a number of people could corroborate his alibi defense. However, counsel
failed to speak to any of these potential witnesses and, in fact, did not present any alibi
defense. In finding that counsel was ineffective, the court stressed counsel’s utter failure
to take defendant’s alibi into account in his representation of defendant. The court
observed that “the record reveals substantial corroboration of the alibi defense which,
although it might not have prevailed, at least had the potential of prevailing and was
sufficient to warrant an adjudication.” (Shaw, supra, 35 Cal.3d at pp. 541-542.) Here,
the record indicates that counsel not only ensured that defendant’s alibi was presented to
the jury, but he made tactical choices designed to present it in the most opportune ways.
Nor is it the case that there were potential witnesses who could have substantially
corroborated defendant’s alibi that counsel ignored. The only other witnesses were
defendant’s parents and, as we have noted, neither of them would have added to the alibi
any information that was not already before the jury.
Similarly, in Frierson, supra, 25 Cal.3d at page 163, defense counsel could have
put on a diminished capacity defense, but he failed to investigate any aspect of this
defense. There, the court held “ ‘[by] his inaction, deliberate or otherwise, counsel
deprived himself of the reasonable bases upon which to reach informed tactical and
strategic trial decisions. . . . . [¶] . . . [E]ven tactical decisions may demonstrate
incompetence if made without the benefit of ‘substantial factual inquiry.’ ” In contrast to
counsel in Frierson, the defense attorney in this case did make an inquiry into
defendant’s alibi and presented the relevant facts behind it, namely that the time between
20
the phone call defendant received from Montes and the time of the murder might have
been too short a time within which defendant could have murdered the victim. Defendant
did not bring to the court’s attention any additional witnesses who might have added
anything useful to that scenario, and as the trial court pointed out, did not present the
court with any documentary evidence that might have strengthened the defendant’s alibi.
In the absence of any evidence of what additional useful investigation defense counsel
could have conducted, we conclude that he was not ineffective in his investigation of
defendant’s alibi.
B. Gang Enhancements
1. Factual Background
The jury found true the allegation that defendant participated in a criminal street
gang when he murdered Luis Suarez and the trial court imposed a three-year
enhancement pursuant to the California Street Terrorism Enforcement and Prevention Act
of 1988 (the STEP Act). (§ 186.20 et seq.; Stats.1988, ch. 1242, § 1.)
The People’s principal witness regarding the activities of the Sureño street gang to
which defendant belonged at the time of the murder was Santa Rosa Police Detective
Andrew Riley. From 2006 to 2009, Riley was assigned to the department’s gang crimes
team and was qualified as an expert “in the area of criminal street gangs pursuant to Penal
Code section 186.22, and in particular the Sureño and Norteño street gangs.”
In his interviews with defendant during the investigation of the murder, Riley
discussed defendant’s gang involvement. Defendant admitted to being an Angelino
Heights Sureño, a “subset or smaller gang within the Sureño criminal street gang” located
in Santa Rosa. In fact, a year earlier, on January 18, 2007, Riley had contact with
defendant in an incident in which, as he testified, defendant “was at a gas station and was
involved in an altercation with two suspected Norteños. And during the altercation he
ended up getting pepper sprayed by the Norteños.” This added to Riley’s belief that
defendant was an active Sureño participant. In sum, it was Riley’s opinion, “based on
[his] training and experience, the contacts [to which he’d testified], the admissions
21
[defendant] made, as well as his tattoos . . . on . . . 4-6 of ’09 [defendant] was an active
Sureño participant.”
According to Riley, there were several hundred Sureño gang members in Sonoma
County. One of the Sureños’s primary activities was “committing Penal Code section
245(a)(1) [violations] such as an assault.” He identified two specific gang members with
whom he dealt in various investigations who had participated in such activities. One,
Martin Camacho, was an active Sureño gang member at the time of an assault
investigation Riley participated in. Camacho ultimately went to prison for that assault.
He also described another Sureño, Omar Gallardo. Riley was involved in the
“investigation of a case where he (Gallardo) and some of his fellow Sureños saw a car
driving past them with who they believed were Norteños in the car. They threw a bunch
of bottle[s] at the car, beer bottles. The car stopped, and a fight broke out. And during
the fight Mr. Gallardo stabbed two different people causing serious injury. And Mr.
Gallardo ended up pleading guilty to assault with a deadly weapon, as well as being an
active gang participant.” In his opinion Gallardo was an active Sureño at the time he
committed that offense.
Riley was also familiar with the victim in this matter, Luis Suarez. He had “heard
Mr. Suarez’s name a couple of times. As I looked further into his police contacts and
gang activity, based on my training and experience, it appeared to me that he was an
active . . . Norteño in the South Park area of Santa Rosa.” One of Suarez’s nicknames
was “Afro Man.” In addition, Riley made a number of observations regarding Suarez’s
memorial that were of significance in his conclusion regarding Suarez’s gang affiliation.
He observed graffiti, and red flags, handkerchiefs, and baseball hats that were all
characteristic of Norteños.
In his opinion, Suarez’s murder was “one hundred percent” a gang-related crime.
He opined that Suarez’s murder “furthers the criminal street gang because . . . these gangs
were formed to protect themselves and are currently in a mode of what they call war with
each other. And their main job, these gangs’ main jobs is to hurt each other and kill each
other. It has been for decades. And it currently is Sureño on Norteño, Norteño on Sureño
22
fights, stabbings, shootings, killings. And just like any organization if you do—if you
commit an act that is part of the main goal of your organization, you’re helping your
organization.”
2. Discussion
Defendant now argues that substantial evidence does not support the gang
enhancement allegation. Specifically, he contends that there is not substantial evidence
to support the jury’s findings that (1) the primary activity of the Sureños was assault and
murder, and (2) the Sureños engaged in a pattern of criminal gang activity as that phrase
is defined by statute. We disagree with both contentions.
a. Gang’s Primary Activities
In People v. Duran (2002) 97 Cal. App. 4th 1448, 1457 (Duran) the court aptly
summarized the law in this area. “Section 186.22, subdivision (b)(1) imposes additional
punishment when a defendant commits a felony for the benefit of, at the direction of, or
in association with a criminal street gang. To establish that a group is a criminal street
gang within the meaning of the statute, the People must prove: (1) the group is an
ongoing association of three or more persons sharing a common name, identifying sign,
or symbol; (2) one of the group’s primary activities is the commission of one or more
statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or
have engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v.
Sengpadychith (2001) 26 Cal. 4th 316, 319-320; People v. Gardeley (1996) 14 Cal. 4th
605, 616-617; People v. Loeun (1997) 17 Cal. 4th 1, 8.)”
The Duran court further explains that “ ‘The phrase “primary activities,” as used
in the gang statute, implies that the commission of one or more of the statutorily
enumerated crimes be one of the group’s “chief” or “principal” occupations. [Citation.]’
[Citation.] Proof that a gang’s members consistently and repeatedly have committed
criminal activity listed in section 186.22, subdivision (e) is sufficient to establish the
gang’s primary activities. On the other hand, proof of only the occasional commission of
crimes by the gang’s members is insufficient. [Citation.] Past offenses, as well as the
circumstances of the charged crime, have some tendency in reason to prove the group’s
23
primary activities, and thus both may be considered by the jury on the issue of the
group’s primary activities. [Citation.]” Further, “[t]he testimony of a gang expert,
founded on his or her conversations with gang members, personal investigation of crimes
committed by gang members, and information obtained from colleagues in his or her own
and other law enforcement agencies, may be sufficient to prove a gang’s primary
activities.” (Duran, supra, 97 Cal.App.4th at pp. 1464-1465.)
The testimony of Detective Riley, the People’s gang expert, constitutes substantial
evidence that among the gang’s primary activities were the assault and murder of
members of rival gangs.10 Based on the three years he had been assigned to the Santa
Rosa Police Department’s gang unit, and his considerable expertise specifically
concerning Sureño and Norteño gangs in Santa Rosa, Riley testified that one of the
primary activities of Sureños in Sonoma County was “definitely” “committing [violations
of] Penal Code section 245(a)(1) such as an assault.” He described Norteños and Sureños
as having been formed to protect each other and thus “currently in a mode of what they
call war with each other.” As part of this war, these “gangs’ main jobs is to hurt each
other or kill each other.” These activities included “stabbings, shootings, killings.” He
also described the “goal” of both Norteños and Sureños as the commission of “violent
acts.”
Defendant, relying on In re Alexander L. (2007) 149 Cal. App. 4th 605, 612 argues
that Riley’s testimony was conclusory and based on “vague generalities. We disagree.
Riley specifically described the activities of several gang members that fit into his
general description of Sureño members engaging in the assault and murder of rival
Norteños. First, he described a gang member named Martin Cuevas Camacho (an active
Sureño gang member at the time of the Suarez murder) with whom he dealt “on several
occasions in different investigations, including one investigation where he ultimately
went to prison behind an assault” in 2008 and another Sureño gang member named Omar
10
Assault and murder are among the statutorily enumerated criminal offenses to
which the enhancement applies. (§ 186.22, subds. (e)(1) and (e)(3).)
24
Lugo Gallardo who stabbed two Norteños “causing serious injury.” Gallardo ultimately
pled “guilty to assault with a deadly weapon, as well as being an active gang participant.”
The picture Riley painted for the jury was of two gangs, formed to protect their
members, whose principal characteristic was that they were “at war.” While engaged in
this conflict, members of the gang to which defendant belonged committed assault and
murder. The record evidences what are essentially five skirmishes in this war, all
involving the sort of violence Riley described as the gang’s primary activity: an incident
in which Meza attacked a Norteño with a baseball bat, defendant’s earlier involvement in
an attack on Norteños in which defendant was pepper sprayed, Martin Camacho’s
conviction for assault in an encounter with Norteños, Omar Gallardo’s plea for assault
with a deadly weapon during a fight that seriously injured two Norteños and, finally, the
murder of Luis Suarez, a Norteño, by defendant.
In a similar case, Duran, supra, 97 Cal.App.4th at pages 1464-1466, the police
gang expert testified that a gang’s primary activity was “ ‘putting fear into the
community.’ ” Through “ ‘robberies, assault with deadly weapons, narcotics sales . . .
they start claiming certain territories within the city . . . . [¶] And they’re controlling
either the narcotics sales in that area, they’re committing the robberies in this area, all for
the purpose of fear and intimidation of the community.’ ” As in this case, the gang expert
further corroborated his conclusion with specific examples of situations in which gang
members engaged in robbery and narcotics offenses. The court held that this testimony
was sufficient to support a finding that this gang’s primary activities were the sale of
narcotics, robbery, or assault.
In sum, this evidence is sufficient to support the jury’s finding that the primary
activities of the gang to which defendant belonged were among the required statutorily
enumerated offenses.
b. Pattern of Gang Activity
Defendant also argues that there is not substantial evidence of a pattern of criminal
gang activity consisting of at least two listed crimes committed within three years of each
other as required under the statute. We disagree.
25
“A ‘pattern of criminal gang activity’ is defined as gang members’ individual or
collective ‘commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two or more’ enumerated
‘predicate offenses’ during a statutorily defined time period. [Citations.] The predicate
offenses must have been committed on separate occasions, or by two or more persons.
[Citations.] The charged crime may serve as a predicate offense [citations], as can
‘evidence of the offense with which the defendant is charged and proof of another offense
committed on the same occasion by a fellow gang member.’ [Citation.]” (Duran, supra,
97 Cal.App.4th at p. 1457.)
The testimonial evidence of the charged offense, namely defendant’s murder of
Suarez, therefore constitutes one of the two predicate offenses. Two other predicate
offenses contained in the record, the assault convictions of Camacho and Gallardo, were
introduced into evidence through Riley’s testimony and through certified court dockets,
each of which contained the dates of the offenses described by Riley. Evidence Code
section 452.5, subdivision (a) makes admissible “any computer-generated official court
records, as specified by the Judicial Council which relate to criminal convictions, when
the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the
Government Code at the time of computer entry.” The court dockets, therefore, are
admissible and presumptively reliable. (See Duran, supra, 97 Cal.App.4th at p. 1461;
Evid. Code, § 452.5, subd. (a).)
c. Ineffective Assistance of Counsel
Defendant argues that, to the extent the People failed to prove what the primary
activities of the Sureños were, counsel was ineffective because his cross-examination of
Riley may have resulted in providing for the jury the remaining proof needed for a true
finding on this enhancement. We have reviewed the record and conclude substantial
evidence supports the jury’s finding. Moreover, the facts on which this finding is based
were introduced by the People and counsel’s cross-examination simply clarified a few
matters to which Riley had already testified. No ineffective assistance of counsel
occurred here.
26
C. Gang Participation
Defendant was convicted of carrying out the murder in furtherance of the activities
of the gang in which he was an active participant. (§ 186.22, subd. (a).) Defendant now
argues that this conviction must be set aside because the People did not show, as required
pursuant to People v. Rodriguez (2012) 55 Cal. 4th 1125, 1132, that two or more gang
members participated in the murder. The People concede, and we agree, that there is no
evidence in the record to support a finding that two or more gang members participated in
the Suarez murder. Therefore, the conviction on this count must be reversed.
D. Section 654 Stay
Defendant argues that section 654 requires that the trial court stay the gang
participation sentence. As the People point out, given that we have reversed the gang
participation count and thus the corresponding sentence, this issue is moot.
IV. DISPOSITION
The judgment of conviction of active participation in a criminal street gang
(§ 186.22, subd. (a)) is reversed. In all other respects the judgment is affirmed.
27
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
28