P. v. Jaimez CA2/5

Filed 4/4/13 P. v. Jaimez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B235373
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA371027)
v.
ANGEL ALEZ JAIMEZ et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of the County of Los Angeles,
Ronald H. Rose and Kathleen Kennedy, Judges. Affirmed as modified.
Susan E. Nash, under appointment by the Court of Appeal, for Defendant and
Appellant Angel Alez Jaimez.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant Ernie Gonzalez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Ernie Gonzalez was convicted of murder (Pen. Code,
§ 187, subd. (a)1) and willful, deliberate and premeditated attempted murder (§§ 664 and
187, subdivision (a)). Defendant and appellant Angel Alez Jaimez was convicted of false
imprisonment by violence (§ 236) and dissuading a witness from reporting a crime (§
136.1, subd. (b)(1)). On appeal, both defendants contend that the trial court erred in
admitting expert testimony of prior shootings among members of their gang. In addition,
Gonzalez contends that the trial court violated his right to confrontation under the Sixth
Amendment by admitting hearsay evidence as a basis for the testimony of prosecution’s
gang expert and erred by imposing an unauthorized sentence term of “15 years to life” on
his conviction for attempted murder, and that the abstract of judgment should be amended
to reflect correctly the jury’s true finding on the firearm use enhancements. Jaimez
contends that there is not substantial evidence to support the jury’s true findings for the
gang enhancements and that the trial court erred in failing to provide him with
presentence conduct credit.
We order that Gonzalez’s abstract of judgment be corrected by stating that he is
sentenced on count 2 to a life term with a 15 year minimum eligible parole date, and the
firearm use enhancements are imposed under section 12022.53, subdivision (d), and
Jaimez’s abstract of judgment be corrected to provide that he is entitled to presentence
conduct credit. We otherwise affirm the judgments.
1
All statutory citations are to the Penal Code unless otherwise noted.
2
BACKGROUND
A. Factual Background
1. The Murder of Griselda Marcelo and the Attempted Murder of
Bonifacio Marcelo 2
a. Prosecution Evidence
Little Valley is a criminal street gang operating in East Los Angeles.
Bonifacio Marcelo testified that when he was 13 years old, he was a member of Little
Valley. His sister, Griselda Marcelo,3 was not a member of Little Valley.
Bonifacio testified that he lived with his parents and Griselda and that their
residence was within Little Valley’s territory. When Bonifacio was 19 years old, he
decided that he no longer wanted to be a member of Little Valley, but to leave Little
Valley he needed to obtain permission from the well-respected members of the gang.
Bonifacio never obtained that permission, and he moved to Las Vegas for approximately
three years. Around April 2008, Bonifacio moved back to Los Angeles and lived with
his parents and Griselda again.
Bonifacio testified that he was familiar with high-ranking members of Little
Valley. On October 16, 2008, Bonifacio spoke to “Nani,” a “vetereno” and the oldest
member of Little Valley. Nani asked Bonifacio if Bonifacio knew of a person who sold
guns because Nani needed one for his nephew, Jaimez, because Jaimez had just been
released from jail. Bonifacio responded that he did not know where to buy a gun.
2
As discussed post, there were two trials. The first trial concerned both defendants,
and at the conclusion of that trial the trial court declared a mistrial as to these counts
(counts 3 and 4) Gonzalez was retried on them. The facts in this section, therefore, are
taken from Gonzalez’s retrial.
3
Because Griselda Marcelo and Bonifacio Marcelo share the same surname, we
refer to them by their first names.
3
Bonifacio did not know that it was a sign of disrespect to say no to a veteran, and he was
not trying to disrespect Nani when he responded.
Bonifacio testified that Jaimez was a member of Little Valley and that his moniker
was “Vago.” Los Angeles County Sheriff’s Department Detective Ignacio Lugo, the
prosecution’s gang expert, testified that Gonzalez was a “shot caller” (one who dictates
certain activities) and a high-ranking, well-respected member of Little Valley, and his
moniker was “Big Sneaks.” Gonzalez had several gang-related tattoos, including “LV”
tattooed on his chest and “Eastside” tattooed on his stomach.
Bonifacio testified that on October 17, 2008, at approximately 12:00 noon,
Bonifacio and Griselda left their home together. About 20 minutes later, they met some
of Griselda’s friends at the intersection of Eastman Avenue and Princeton Street, and a
white Toyota and a red Intrepid were driven by them. After Griselda finished talking
with her friends, Bonifacio and Griselda began walking again. The white Toyota and a
red Intrepid returned and passed by them again. Griselda pointed to the driver of the
white Toyota and said, “Look. There’s homie Vago.” The white Toyota and a red
Intrepid made a u-turn, drove toward Bonifacio and Griselda again, and stopped.
Bonifacio saw Jaimez, who was driving the Toyota, and Gonzalez, who was in the
passenger seat of the Toyota.
Bonifacio testified that Gonzalez asked him, “Where you from?” and pulled out a
chrome colored revolver. Bonifacio replied, “No where” [sic].
Detective Lugo testified that when a gang member asks another member, “where
you from?,” the other gang member is expected to claim his gang. The question
Gonzalez asked Bonifacio means, “Are you loyal to [Little Valley]?” If the other gang
member responds “nowhere,” it is “very disrespectful.” A person telling a gang member
that he is no longer part of the gang may be considered more disrespectful than just
moving out of the neighborhood. If a person states that he is no longer part of the gang,
the gang would retaliate against him, including the person being physically assaulted,
shot, or killed.
4
Bonifacio testified that in response to his stating, “No where” [sic]. Gonzalez
stated, “Fuck Little Valley” and started shooting. Bonifacio ran behind a truck but he
was shot in the left leg. Griselda fell to the ground. Los Angeles County Coroner’s
Office Medical Examiner Ajay Panchal testified that Griselda sustained two fatal gunshot
wounds. Bonifacio testified that the Toyota and Intrepid were driven away immediately
after the shootings.
Bonifacio testified that sheriff’s deputies arrived at the scene of the shootings, but
Bonifacio “didn’t say anything” to them about the shooting because he feared further
retaliation if he did so. Once Bonifacio learned that Griselda had died, he told the police
what had occurred. Los Angeles County Sheriff’s Department Detective James Charles
testified that a murder weapon was never found.
Detective Charles testified that on October 19, 2008, a 911 call was made to the
East Los Angeles County Sheriff’s Department by Manuel Robles from a residence
located on South Record Street. Robles testified that the residence belonged to his father.
The audio recording of a 911 call was played for the jury. During the 911 call, Robles
requested that deputies be dispatched to the 400 block of South Record Street because
“there’s a gang member that you guys have been wanting to get . . . hanging around.”
Robles stated that Gonzalez, who Robles identified as a Little Valley gang member, was
loitering in the area. Detective Lugo testified that the 400 block of South Record Street
falls within Little Valley territory.
Los Angeles County Sheriff’s Department Deputy Yvette Reyes testified that she
and her partner, Deputy Hanamaikai, responded to the 911 call. Deputy Reyes instituted
a “tactical plan that had been put in place” by coordinating with other law enforcement
units who were covering a two block radius around the location because they received
information that one of the people at the location was somebody for whom they had been
advised to look. The person they were looking for was wanted for murder, and there was
an outstanding warrant for his arrest. When they arrived at the scene, Deputy Reyes saw
Gonzalez, Jaimez, and two other men standing near a cul-de-sac on the 400 block of
South Record Street. The deputies ordered the men to put their hands up and to stop what
5
they were doing. Two of the men complied with the order, but Gonzalez and Jaimez ran
to the rear of the residence of Robles’s father. Deputies Reyes and Hanamaikai detained
the two men that complied with their orders, but they did not pursue Gonzalez and Jaimez
because they had the assistance of a helicopter unit. Deputy Reyes participated in an
evacuation of the 400 block of South Record Street. Several announcements were made
ordering everyone out of the residences, and eventually Gonzalez exited the residence of
Robles’s father and was arrested.
Rosa Reynoso testified that in the evening of October 19, 2008, she was having a
barbeque in the front of her house, and Jaimez appeared on the side of her residence.
Jaimez was not invited to the barbeque, and Reynoso did not know him. (The events here
are discussed in more detail post.) The police arrived at Reynoso’s residence and Jaimez
was taken into custody.
Detective Lugo testified that Little Valley was a “traditional” gang that has existed
for approximately 60 years and has approximately 100 members. A gang’s territory is
the gang’s “heart;” it is “what they fight for . . . and what they’ll kill for.” Little Valley’s
territory is bordered by Indiana Street to the west, Whittier Boulevard to the south,
Downey Road to the east, and Interstate 5 to the north. In order to establish their
territory, a gang must commit crimes within that territory. This creates an atmosphere of
fear and intimidation, and dissuades witnesses of crimes from reporting the crimes and
testifying in court. The primary activities of Little Valley include tagging, automobile
thefts, narcotic sales, transportation of narcotics, burglaries, transportation of weapons,
extortions, kidnapping, assaults, drive-by shootings, attempted murders, and murders.
Certified court orders of two cases in which Ilene Munoz and Jose Veira were
named as defendants were introduced to establish that they had been convicted in about
March 2008 of assault with a deadly weapon or assault by means likely to produce great
bodily injury. Detective Lugo testified that Munoz and Viera were Little Valley gang
members at the time they committed the crime. Detective Lugo did not state how he
knew Munoz was a gang member, but he said that the basis for his information that Viera
was gang member was that “other detectives that handled the case” had “mentioned” it.
6
The prosecutor asked Detective Lugo to assume, hypothetically, facts closely
tracking the evidence concerning the shootings of Bonifacio and Griselda. Based on
those facts, Detective Lugo opined that the shootings would have been committed for the
benefit of, at the direction of, and in association with a criminal street gang, and would
have been an effort to promote, further, or assist criminal conduct by gang members.
Detective Lugo stated that the basis for his opinion was, inter alia, that a gang considers it
“wrong” for someone like Bonifacio, who disassociated himself from a gang without
permission, to “just show back up” in the gang’s territory. It is disrespectful for someone
like Bonifacio, a former low-level gang member, to refuse to attempt to procure a firearm
for a well-respected gang member. When the person is asked by a gang member, “Where
are you from,” and responds, “nowhere,” the person like Bonifacio is essentially
communicating to the gang member that the person “turn[ed] his back” to the gang and is
“basically telling the gang to fuck off.” A shooting under the circumstances reinforces
the fear and intimidation within the community. When a gang member kills another
member of that gang—i.e., when the gang is “cleaning house”[4] thereby “tightening up
the ship”—all of the other members of that gang “are going to know either you’re in or
you’re out,” and members of rival gangs will know that the killing gang is “serious.” The
shootings of Bonifacio and Griselda occurred in or near Little Valley’s territory.
b. Defendant’s Evidence
Valerie Moriel, Gonzalez’s girlfriend, testified that in October 2008, she was
living with Gonzalez. On October 17, 2008, Gonzalez was watching his little sister at
their home. Moriel left home for work that day at 6:30 a.m., and returned home at 4:00
p.m.5
4
As used herein, the terms “house cleaning,” “in-house cleaning,” and “in-house
shootings,” are synonymous.
5
On cross-examination, Moriel stated that she did not know of Gonzalez’s
whereabouts from 10:30 a.m. to 1:00 p.m.
7
California Department of Corrections Parole Agent Arthur Evans testified that in
October 2008, Gonzalez was on parole with a condition that he was not to associate with
known gang members. The parties stipulated that in October 2008, Jaimez was on parole
with the same condition.
The parties stipulated that a video depicted that on October 17, 2008, at 7:32 a.m.,
Jaimez entered the Superior Court of Los Angeles Commonwealth courthouse. Gloria
Sera-Mulet, a Superior Court of Los Angeles family law paralegal, testified that at 9:00
a.m. or 9:30 a.m. she met with Jaimez at the courthouse to assist him in preparing
documents for his family law case that was pending there. The preparation of the
documents took about three hours. Before Sera-Mulet went to lunch at about 1:00 p.m.
she told Jaimez that she was going to lunch and he should return to her office after lunch.
On cross-examination, Sera-Mulet stated that she previously testified that she did not
remember whether she spoke with Jaimez between 12:00 p.m. and 1:00 p.m. The parties
stipulated that a video depicted that from 1:21 p.m. to 1:28 p.m., Jaimez was standing in
line at a Carl’s Jr. restaurant across the street from the courthouse, and that at 1:53 p.m.,
Jaimez entered the Commonwealth courthouse.
c. Prosecution Rebuttal Evidence
Detective Charles testified that Sera-Mulet told him during her October 21, 2008,
interview that the preparation of the documents for Jaimez took about 90 minutes, not
three hours. Sera-Mulet told Detective Charles that she worked with Jaimez from 8:30
a.m. to 10:00 a.m., directed Jaimez to go without her to another office in the courthouse,
the latest Jaimez should have been in the courthouse if he went to the other office as
instructed would be noon, and Jaimez returned to see her at about 2:30 p.m. A defense
investigator said that driving 55 miles per hour, it took him 18 minutes to drive from the
courthouse to the area in which the shooting occurred at about one p.m.
8
2. The False Imprisonment of Rosa Reynoso and Dissuading
Her from Reporting a Crime
As discussed below, following the first trial Jaimez was convicted of false
imprisonment and dissuading a witness from reporting a crime (counts 3 and 4), but the
trial court declared a mistrial as to the counts against both Jaimez and Gonzalez for the
murder of Griselda in violation of section 187, subdivision (a) (count 1), and the willful,
deliberate and premeditated attempted murder of Bonifacio in violation of sections 664
and 187, subdivision (a) (count 2). The facts relating to the crimes of murder and
attempted murder from the second trial are substantially the same as those in the first
trial. To avoid repetition of the facts relating to the murder and attempted murder, the
facts in this section only include those relevant to Jaimez’s conviction from the first
trial—false imprisonment of Reynoso and dissuading her from reporting a crime.
a. Prosecution Evidence
Reynoso testified that on October 19, 2008, she was having a barbeque at her
residence on Langford Street. Detective Charles testified that Reynoso’s residence was
approximately one block from the residence of Robles’s father on South Record Street,
which Detective Lugo, the prosecution’s gang expert, testified was within Little Valley’s
territory.
Reynoso testified that during the barbeque an “uninvited” person came towards
her from the rear of the property. Reynoso told her family members that were inside the
house to remain inside, locked the security gate, and returned to the outside of the house.
She told the police that this “uninvited” person, a male, told her to sit with him on the
front porch, that he had a gun, and that when the police came to tell them he is her friend.
Reynoso also told the police that she did not see a gun, but that she sat on the front porch
with this person because she was “scared.” The police arrested that person.
Many of Reynoso’s answers to the prosecutor’s questions were “I don’t
remember.” Reynoso testified at trial that about two weeks after the October 19, 2008,
incident, she found nine bullets on her porch. She was afraid to come to court to testify
9
in this case, and she told that to Detective Charles. Reynoso declined Detective Charles’s
offer to have her relocated out of the neighborhood. When Reynoso was asked on cross-
examination whether she “was trying [her] best to remember everything [she] can now?,”
she responded, “I don’t want to remember anything.” When Reynoso was asked on
cross-examination whether she saw “someone get arrested that night that we’ve been
talking about . . .,” she began to cry and, therefore, the trial court took a recess. Shortly
after the trial resumed, Reynoso said that, “All I want to say is that I don’t want to have
any problems. I’m very scared. I don’t want to have any problems with this man and I
don’t know anything.”
Los Angeles County Sheriff’s Department Deputy Rodney Gutierrez testified that
on October 19, 2008, he responded to a call to go to the Langford Street location because
“another East L.A. patrol unit received a call of gang members hanging out in the area
that were wanted for a recent murder.” When Deputy Gutierrez arrived at the scene a
“containment” had been set up that comprised of approximately ten deputies, two two-
person patrol vehicles, and an “airship.” Deputy Gutierrez initially saw Jaimez in the rear
of Reynoso’s residence, and after about a two-hour search, Deputy Gutierrez located
Jaimez on the porch of Reynoso’s residence. Jaimez was arrested.
Deputy Gutierrez and his partner, Deputy Luis Alva, then spoke with Reynoso,
who initially identified Jaimez as her friend. Reynoso appeared to be shaken and
nervous. When Deputy Alva asked Reynoso why she was nervous or scared, Reynoso
recanted her initial statement that Jaimez was her friend and told the deputies “that she
was gonna come out and tell the truth to us. She was scared and—but she wanted to tell
us the truth.”
Deputy Gutierrez testified that Reynoso said, outside the presence of Jaimez, that
when she was barbequing on her front porch, she saw Jaimez run onto her property.
Jaimez was out of breath, nervous, and anxious. Reynoso was startled and told her
family to lock the door and told them not to leave the house. Jaimez told Reynoso that
the police were searching for him, and that she should tell them that Jaimez was her
friend and they were just sitting on the porch. Jaimez told Reynoso that she could not
10
leave the front porch area, he was a Little Valley gang member, and he had a gun.
Reynoso did not see the gun, but Jaimez was “cradl[ing] his waistband area.” Jaimez told
Reynoso that if she tried to leave, he or his gang member friends would harm her or her
family. Reynoso complied with Jaimez’s directive to stay on the front porch with him
because she was afraid for herself and her family. Reynoso said that she was confined to
the porch with Jaimez for about two hours.
Detective Charles testified that Reynoso told him before trial that she was not sure
from where the nine bullets came. Reynoso said that a Hispanic man came to her
residence, told her that he was Jaimez’s friend, warned her not to testify, and told her that
something bad would happen to her if she testified.6 Reynoso said that she was very
reluctant to testify and she would rather go to jail than testify.
An audio recording of a conversation between Jaimez and Gonzalez that occurred
while they were in the same patrol car following their arrest on October 19, 2008, was
played for the jury. During the conversation, Jaimez said laughing, “I was right there
with my friends, some hyna. And we were eating. Well, she had a barbecue.”
An audio recording of a conversation between Jaimez and Gonzalez that occurred
while they were in the same jail cell was played for the jury. The following exchange
occurred during the conversation: “[Jaimez:] I know them mother-fuckers are hearing us
right now . . . . [¶] [Gonzalez:] Ah’ fuck them. [¶] [T]hey’re probably like . . . why
aren’t they breaking. Like they’ll be expecting us to start saying something know what I
mean— [Gonzalez:] Yeah. [Jaimez:] —like why haven’t they said it yet because
these—these fools are stupid homey.”
b. Defendant’s Evidence
The parties stipulated that in October 2008, Jaimez was on parole with a condition
that he was not to associate with known gang members.
6
The trial court instructed the jury to consider this statement only as to Reynoso’s
state of mind.
11
B. Procedural Background
Following a trial, the jury found Jaimez guilty of the false imprisonment of
Reynoso by violence in violation of section 236 (count 3), and dissuading Reynoso from
reporting a crime in violation of section 136.1, subdivision (b)(1) (count 4). The jury
deadlocked on charges against both Jaimez and Gonzalez for the murder of Griselda in
violation of section 187, subdivision (a) (count 1), and the willful, deliberate and
premeditated attempted murder of Bonifacio in violation of sections 664 and 187,
subdivision (a) (count 2), and the trial court declared a mistrial as to those counts and
dismissed the jury.
As to Jaimez, the jury found true that the offenses charged in counts 3 and 4 were
committed for the benefit of, at the direction of, and in association with a criminal street
gang with the specific intent to promote further and assist in criminal conduct by gang
members in violation of section 186.22, subdivision (b)(1)(A) as to count 3, and
subdivision (b)(4) as to count 4. The trial court denied Jaimez’s oral motion for new trial,
and sentenced Jaimez to state prison for a term of seven years to life. The trial court
awarded Jaimez 1025 days of actual custody credit, but did not award him any conduct
credit. ~
Gonzalez was retried on counts 1 and 2. Following the retrial, the jury found
Gonzalez guilty of the murder of Griselda in violation of section 187, subdivision (a)
(count 1), and the willful, deliberate and premeditated attempted murder of Bonifacio in
violation of sections 664 and 187, subdivision (a) (count 2). The jury found true that the
offenses charged in each of those counts were committed for the benefit of, at the
direction of, and in association with a criminal street gang with the specific intent to
promote further and assist in criminal conduct by gang members in violation of section
186.22, subdivision (b)(1)(A) as to count 1, and subdivision (b)(1)(C) as to count 2. As
to both counts, the jury also found true that Gonzalez personally and intentionally
discharged a firearm and proximately caused great bodily injury or death within the
meaning of section 12022.53, subdivision (d).
12
The trial court sentenced Gonzalez to state prison for a term of 90 years to life,
consisting of the following: on count 1, 25 years to life for the murder of Griselda, plus
25 years for the gun use enhancement; on count 2, 15 years to life for the premeditated
attempted murder of Bonifacio and the gang allegation, plus 25 years to life for the gun
use enhancement. The trial court awarded Gonzalez 1061 days of actual custody credit.
DISCUSSION
A. Gonzalez’s Argument Regarding Admission of Gang Expert Testimony
Concerning Shootings Between Little Valley Gang Members
Gonzalez contends that the trial court violated his rights to due process and a fair
trial when it denied his request to exclude gang expert testimony concerning “in-house
shootings” between Little Valley Gang members. We disagree.
1. Standard of Review
“On appeal, we apply an abuse of discretion standard of review to any ruling by a
trial court on the admissibility of evidence.” (People v. Guerra (2006) 37 Cal.4th 1067,
1140; see People v. Carter (2003) 30 Cal.4th 1166, 1194 [admission of gang evidence
reviewed for abuse of discretion].) “A trial court abuses its discretion when its ruling
‘fall[s] “outside the bounds of reason.”’ [Citations.]” (People v. Waidla (2000) 22
Cal.4th 690, 714.) If the erroneous admission “implicates defendant’s federal
constitutional rights to due process and concerns the fundamental fairness of his trial, we
will apply the de novo standard of review.” (People v. Albarran (2007) 149 Cal.App.4th
214, 225, fn. 7 (Albarran).)
2. Background Facts
During opening statement, the prosecutor stated, “You’ll hear about the history of
this gang and how a civil war, essentially, broke out within this gang where Little Valley
gang members started killing Little Valley gang members and . . . this sort of killing of
13
your own kind . . . was something taking place in Little Valley around the time of our
shooting. [¶] . . . [¶] You’ll hear that because of this civil war, there was some return to
sort of an old-school philosophy within the gang. They wanted to tighten up the ship and
get rid of those members who were considered weak, so somebody like Bonifacio, who
left the gang and came back and wasn’t participating, would be viewed as weak.” The
prosecutor also stated, “and you will have a history and culture of Little Valley and the
different individual’s role in that gang and how their role in that gang developed a motive
for this particular shooting . . . .”
Gonzalez’s counsel stated during opening statement, “[T]he People will call their
gang expert to tell you . . . what he believes was the motive for why the shooting
happened. [¶] And he will say that this was a disciplinary killing, but he will not be able
to offer you one single example . . . of a Little Valley member being disciplined, being
assaulted or shot at for leaving the area or leaving the gang.”
Gonzalez filed a motion to exclude expert testimony about the five prior gang-
related shootings on the grounds that, inter alia, the evidence was irrelevant, and it was
substantially more prejudicial than probative under Evidence Code section 352. The trial
court denied the motion, stating, “I [will] not allow specifics of the prior shootings, but
the fact that there were prior shootings, [and] they are not going to be connected to either
[Gonzalez or Jaimez], but that there were just, in general, prior shootings of Little Valley
on Little Valley.” The trial court then granted the request of Gonzalez’s counsel to ask
the prosecutor’s gang expert whether anyone had ever been arrested, tried or convicted
for any of the prior shootings without it “opening the door” to the specifics about the
prior shootings, stating, “I think that’s reasonable.”
At trial, Detective Lugo testified that when a gang member kills a member of his
own gang, it is sometimes called “cleaning house ” or “tightening up the ship.” One
reason to “clean house” is to discipline a disloyal member. Detective Lugo testified that
if a person “disappear[s] from the gang without . . . getting permission in the modern way
of doing things, and [that person] start[s] showing up, and they suspect you of doing
things against the gang, [that person] would be considered disloyal, disrespectful. [That
14
person] is not following orders. [That person does not] want to pick up where [that
person] left off for the gang.”
Detective Lugo testified that Little Valley “cleaned house” in 2001, involving two
high-ranking gang members, June 2005, July 2005, November 2005, and December
2006. There was an arrest and conviction for the incident that occurred in 2001, and
during the trial regarding that incident a Little Valley gang member testified against
another Little Valley gang member. No one had ever been prosecuted for or convicted of
the other four incidents. Detective Lugo was the lead investigator concerning some of
those incidents and he ran into “problems with getting people to cooperate in court.”
Detective Lugo and other gang investigators in east Los Angeles have used the phrases
“in-house cleaning” or “cleaning house” with one another concerning Little Valley.
After the introduction of evidence, the trial court instructed the jury under
CALCRIM No. 1403, modified, as follows: “You may consider evidence of gang activity
only for the limited purpose of deciding whether: [¶] The defendant acted with the
intent, purpose and knowledge that are required to prove the gang-related crimes and
enhancements charged; [¶] or the defendant had a motive to commit the crimes
charged. [¶] You may also consider this evidence when you evaluate the credibility or
believability of a witness and when you consider the facts and information relied on by
an expert witness in reaching his or her opinion. [¶] You may not consider this evidence
for any other purpose. You may not conclude from this evidence that the defendant is a
person of bad character or that he has a disposition to commit crime.”
During closing argument, Gonzalez’s counsel argued that the shootings of
Bonifacio and Marcelo were not Little Valley “in-house shootings,” but rather were
committed by a rival gang member.
3. Analysis
Gonzalez contends that the evidence of the prior Little Valley “in-house
shootings” was not relevant. “‘“Only relevant evidence is admissible [citations], and all
relevant evidence is admissible unless excluded under the federal or California
15
Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code
section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.’ The test of relevance is
whether the evidence tends ‘“logically, naturally, and by reasonable inference” to
establish material facts . . . . [Citations.]’ [Citation.] The trial court has broad discretion
in determining the relevance of evidence [citations] . . . . [Citations.]” [Citation.]’
[Citation.]” (People v. Carter, supra, 36 Cal.4th at pp. 1166-1167.)
Contrary to Gonzalez’s contention, the evidence of Little Valley’s prior “in-house
shootings” was relevant to establish that the attempted murder of Bonifacio was gang
related and that Gonzalez had a motive to commit the crimes charged—i.e., to discipline
a member for leaving the gang without permission.
Gonzalez contends that the evidence was irrelevant because it was unknown who
committed the prior Little Valley shootings or the reason they occurred. Detective Lugo,
however, testified that the persons who committed the prior Little Valley shootings were
Little Valley gang members. Detective Lugo was the lead investigator concerning some
of the incidents of Little Valley cleaning house. Detective Lugo testified that when a
gang member kills a member of his own gang, it is sometimes called “cleaning house,”
and he and other gang investigators had used the phrases “cleaning house” and “in-house
cleaning” with one another concerning Little Valley.
Detective Lugo also testified about the reasons that the incidents of cleaning house
occur—to discipline a disloyal member. He testified that they occur when a person
“disappear[s] from the gang without . . . getting permission in the modern way of doing
things, and [that person] start[s] showing up, and they suspect you of doing things against
the gang, [that person] would be considered disloyal, disrespectful. [That person] is not
following orders. [That person does not] want to pick up where [that person] left off for
the gang.”
Gonzalez contends that the evidence was substantially more prejudicial than
probative. “Relevant evidence may nonetheless be excluded under Evidence Code
section 352 at the trial court’s discretion if ‘its probative value is substantially
16
outweighed by the probability that its admission will . . . create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.’ . . . (People v.
Ledesma (2006) 39 Cal.4th 641, 701.)” (People v. Richardson (2008) 43 Cal.4th 959,
1000-1001.) “‘The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352,
“prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988)
46 Cal.3d 612, 638; see People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Gonzalez contends that the evidence was prejudicial because “the testimony on the
prior unresolved murders amounted to guilt by association. . . . Undoubtedly, the jury
made the connection that not only was [Gonzalez] violent, but he was probably somehow
involved in the prior unsolved murders.” The jury, however, was instructed that the
evidence of gang activity was admitted for the limited purpose of proving the gang
enhancement and to show motive, and that it could not be considered for any other
purpose, including as character evidence. We presume the jury followed the trial court’s
instructions. (People v. Avila (2009) 46 Cal.4th 680, 719; People v. Bennett (2009) 45
Cal.4th 577, 596; People v. Johnson (2009) 180 Cal.App.4th 702, 710.) It is almost an
“‘invariable assumption of the law that jurors follow their instructions.’ [Citation.]
‘[We] presume that jurors, conscious of the gravity of their task, attend closely the
particular language of the trial court’s instructions in a criminal case and strive to
understand, make sense of, and follow the instructions given them.’ [Citation.]” (United
States v. Olano (1993) 180 Cal.App.4th 702, 740.)
Gonzalez contends that the evidence of Little Valley’s “in-house shootings” was
cumulative to Detective Lugo’s testimony “that gang members could be disciplined or
killed for many different reasons,” including for leaving the gang without permission, and
disrespecting a higher ranking gang member. Evidence of the incidents of Little Valley
cleaning house was not cumulative, warranting exclusion. Gonzalez’s defense was that
the shootings of Bonifacio and Marcelo were not “in-house shootings,” but rather were
committed by a rival gang member. Evidence of Gonzalez’s motive to commit the
17
crimes, therefore, was essential to the prosecution’s case against him. In addition, the
introduction of the contested evidence did not involve an undue consumption of time
because the trial court precluded the prosecutor from eliciting testimony about the
specifics of the prior Little Valley intra-gang shootings, while allowing Gonzalez’s
counsel to ask the prosecutor’s gang expert whether anyone had ever been arrested, tried
or convicted for any of the prior shootings without it “opening the door” to the specifics
about the prior shootings.
“‘Evidence that is identical in subject matter to other evidence should not be
excluded as “cumulative” when it has greater evidentiary weight or probative value.’
(People v. Mattson (1990) 50 Cal.3d 826, 871 [268 Cal.Rptr. 802, 789 P.2d 983].)”
(People v. Filson (1994) 22 Cal.App.4th 1841, 1851, overruled on other grounds as stated
in People v. Martinez (1995) 11 Cal.4th 434, 452.) Evidence of actual instances of Little
Valley’s cleaning house has greater evidentiary weight and probative value than
Detective Lugo’s testimony that gang members “could” be disciplined or killed.
Accordingly, the trial court did err in admitting the evidence.
B. Gonzalez’s Argument That His Right to Confrontation Was Violated
Because Detective Lugo’s Expert Testimony Was Based on
Inadmissible Hearsay.
Relying primarily on Crawford v. Washington (2004) 541 U.S. 36 (Crawford),
Gonzalez contends that the trial court violated his right to confrontation under the Sixth
Amendment by allowing Detective Lugo, in his expert testimony, to rely on inadmissible
hearsay statements of others. We disagree.
1. Forfeiture
The Attorney General contends that Gonzalez forfeited his contention that his
right to confrontation under the Sixth Amendment as articulated by Crawford, supra, 541
U.S. 36 was violated by the trial court allowing Detective Lugo’s expert testimony to be
18
based on inadmissible hearsay statements because Gonzalez failed to object to Detective
Lugo’s testimony on this ground.
“When a party does not raise an argument [before the trial court], he may not do
so on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892 [8 Cal.Rptr.2d 678, 830 P.2d
712]; People v. Benson (1990) 52 Cal.3d 754, 782, fn. 5 [276 Cal.Rptr. 827, 802 P.2d
330].)” (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on other grounds
as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; In re Michael L. (1985)
39 Cal.3d 81, 88 [“Objections not presented to the trial court cannot be raised for the first
time on appeal”].) “‘The reason for this rule is that “[i]t is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of the trial court,
could have been easily corrected or avoided.” [Citations.] “[T]he forfeiture rule ensures
that the opposing party is given an opportunity to address the objection, and it prevents a
party from engaging in gamesmanship by choosing not to object, awaiting the outcome,
and then claiming error.” [Citation.]’ (People v. French (2008) 43 Cal.4th 36, 46 [73
Cal.Rptr.3d 605, 178 P.3d 1100].)” (People v. Hawkins (2012) 211 Cal.App.4th 194,
203.)
Gonzalez concedes that he “failed to object [to] the gang’s expert testimony on
Confrontation grounds or under Crawford v. Washington, supra, 541 U.S. 36.” Gonzalez
contends, however, that such an objection was not required because it would have been
futile for him to make such an objection. (People v. Sandoval (2007) 41 Cal.4th 825,
837, fn. 4.) Citing People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 and People v.
Thomas (2005) 130 Cal.App.4th 1202, 1210, Gonzalez argues the objection would have
been futile because appellate courts have held that an expert’s opinion that is based on
hearsay statements does not offend the confrontation clause, and under the principles of
stare decisis, the trial court would be required to follow those opinions. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
People v. Ramirez, supra, 153 Cal.App.4th at page 1427, relied on People v.
Thomas, supra, 130 Cal.App.4th 1202, and the court in People v. Hill (2011) 191
Cal.App.4th 1104, disagreed with People v. Thomas, supra, 130 Cal.App.4th 1202, but
19
nevertheless felt it was bound by People v. Gardeley (1996) 14 Cal.4th 605, 618
(Gardeley). (People v. Hill, supra, 191 Cal.App.4th at pp. 1121-1122, 1131.) Gardeley,
decided before recent United States Supreme Court confrontation clause authorities, held
that the evidence could not be excluded as hearsay. It did not determine whether the
evidence was testimonial hearsay subject to the confrontation clause.
Gonzalez’s contention that his right to confrontation under the Sixth Amendment
to the United States Constitution was violated is a federal issue. At the time Detective
Lugo testified, the state of the law on the confrontation clause was not fixed. (See
Bullcoming v. New Mexico (2011) 564 U.S. ___ [180 L.Ed.2d 610, 131 S.Ct. 2705]
(Bullcoming); Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz);
see also Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89, 132 S.Ct. 2221])
In order for defendant to preserve his contention that his right to confrontation was
violated, he must have objected on that basis. He did not and, therefore, defendant
forfeited his contention.
2. Confrontation Clause
Even if defendant had objected that his right to confrontation was violated, in view
of the applicable opinions, which, as we note, cannot be applied to the issue here with
any certainty, and the state of the record, we conclude there was not a sufficient showing
of a violation. The confrontation clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” The United States Supreme Court held in Crawford, supra, 541
U.S. 36 at pp. 53-54 that the confrontation clause “bars ‘admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.’” (Davis v.
Washington (2006) 547 U.S. 813, 821.)
Although Gonzalez contends that his constitutional right to confrontation was
violated when Detective Lugo testified about Little Valley’s primary criminal activities,
that Munoz was a Little Valley gang member at the time she committed the crime of
20
assault, and that “in-house shootings” occurred between Little Valley Gang members,
Gonzalez does not identify the person or persons he contends he had a right to confront,
nor does he specify the out-of-court statements upon which Detective Lugo purportedly
based his testimony and upon which Gonzalez relies. Gonzalez concedes that “the
specific source of [Detective Lugo’s] information” about Little Valley’s primary criminal
activities “is unclear,” he “did not state how he knew [that Munoz] was a gang member,”
and “it is not clear from Detective Lugo’s testimony the source of his information
regarding” the Little Valley “in-house shootings.” Similarly, Gonzalez contends that his
right to confrontation was violated when Detective Lugo testified that he was familiar
with the facts of the assault committed by Munoz and Viera on about March 18, 2008,
because he “spoke to the investigator,” but neither Gonzalez nor the record identify the
investigator, the investigator’s statements, or the circumstances under which the
investigator’s statements were made. Based on the record, we cannot say that Detective
Lugo’s testimony that was purportedly based on certain unspecified out-of-court
statements made by unspecified sources violates Gonzalez’s right to confrontation.
Gonzalez also contends that his constitutional right to confrontation was violated
when certified court orders of two cases in which Munoz and Veira were named as
defendants were introduced into evidence to establish that they had been convicted of
assault with a deadly weapon or assault by means likely to produce great bodily injury.
Gonzalez, however, did not establish that the certified court documents served as a basis
for Detective Lugo’s testimony. Detective Lugo merely testified that he is aware of the
convictions of Munoz and Veira, but he did not state the basis of his awareness. In
addition, assuming Detective Lugo did rely on these certified court documents in
testifying, Gonzalez’s right of confrontation was not violated because the documents
were certified court records, and there is no legitimate basis upon which Gonzalez may
cross-examine the person who prepared them.
As noted above, the United States Supreme Court held in Crawford, supra, 541
U.S. 36 at pp. 53-54 that the confrontation clause bars the admission of testimonial
statements of an out-of-court witness who defendant was not permitted to cross-examine,
21
but “[t]he Crawford court did not define the term ‘testimonial,’ and the United States
Supreme Court has still not agreed upon a definition.” (People v. Holmes (2012) 212
Cal.App.4th 431, 437.) “Although the high court has not agreed on a definition of
‘testimonial,’ testimonial out-of-court statements have two critical components. First, to
be testimonial, the statement must be made with some degree of formality or solemnity.
Second, the statement is testimonial only if its primary purpose pertains in some fashion
to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 608, 619; People v.
Lopez (2012) 55 Cal.4th 569, 581-582.) “It is now settled in California that a statement
is not testimonial unless both criteria are met.” (People v. Holmes, supra, 212
Cal.App.4th at p. 438.)
Gonzalez contends that his right to confrontation was violated when Detective
Lugo testified that Viera was a Little Valley gang member at the time he committed the
crime of assault because Detective Lugo said that the basis for his information was that
“other detectives that handled the case” had “mentioned” it. The record does not
establish the circumstances under which the other detectives “mentioned”—whether
directly to Detective Lugo, overheard by him, or otherwise—that Viera was a Little
Valley gang member. Gonzalez did not establish any requisite degree of formality or
solemnity of the out-of-court “statement” made by the other detectives. “[T]o be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity. (See Crawford, supra, 541 U.S. at p. 51 [‘An accuser who
makes a formal statement to government officers bears testimony . . .’]; Melendez-Diaz,
supra, 557 U.S. at p. 310 [stressing that each of the laboratory certificates determined to
be testimonial was a “‘solemn declaration or affirmation’”’]; Bullcoming, supra, 564 U.S.
___ [131 S.Ct. at p. 2717] [the laboratory certificate found to be testimonial was
‘“formalized” in a signed document. . . referring to . . . rules’ that made the document
admissible in court (citation omitted)] . . . .” (People v. Lopez, supra, 55 Cal.4th at p.
582.) We conclude, therefore, based on the record, that the detective having “mentioned”
that Viera was a gang member was not testimonial and Gonzalez’s constitutional right to
confrontation was not violated. Because we conclude that Gonzalez did not establish any
22
requisite degree of formality or solemnity of the out-of-court “statement,” we do not
reach the issue of whether its primary purpose pertained “in some fashion to a criminal
prosecution.” (People v. Dungo, supra, 55 Cal.4th at p. 619 [a statement is testimonial
only if both criteria are met].)
C. Gonzalez’s Argument Regarding His Sentence on Count 2
Gonzalez contends that the trial court erred by imposing an unauthorized sentence
term of “15 years to life” on count 2. Gonzalez contends that, “[I]nstead, the [trial] court
should have sentenced [defendant] to life with the possibility of parole with a minimum
of 15 years before being eligible for parole.” The Attorney General concedes that
Gonzalez’s abstract of judgment must be corrected to reflect that Gonzalez’s sentence is a
term of life in prison with a minimum wait for parole of 15 years.
Gonzalez was convicted on count 2—willful, deliberate, and premeditated
attempted murder in violation of sections 187 subdivision (a) and 664—and the jury
found true the gang enhancement allegation under section 186.22, subdivision (b)(1)(C)
and the firearm use enhancement allegation under section 12022.53, subdivision (d). The
trial court sentenced defendant to state prison for a term of 40 years to life, consisting of
15 years to life for premeditated attempted murder under sections 187, subdivision (a),
664, and 186.22, subdivision (b)(5), enhanced by an additional 25 years to life under
section 12022.53, subdivision (d), to be served consecutively. As to defendant’s sentence
of 15 years to life, the trial court stated, “As to count 2 [premeditated attempted
murder], . . . [Gonzalez] is ordered to serve a consecutive 15-year-to-life term. The effect
of 186.22, (b)(1)(5) becomes a parole eligibility only statute at that point.” The minute
order provides in part, “As to count 2: Defendant to serve 15 years to life. [¶] The court
finds the premeditation makes this a life count, and the 186.22(B)(1)(5) mandates a
minimum of 15 years in state prison on life counts.” The abstract of judgment provided
in part, “15 years to life on count[] 2.”
Section 664, subdivision (a) provides in relevant part, “[I]f the crime attempted is
willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty
23
of that attempt shall be punished by imprisonment in the state prison for life with the
possibility of parole.” Section 186.22, subdivision (b)(5) provides in relevant part,
“[A]ny person who violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until a minimum of 15
calendar years have been served.”
“The effect of section 186.22, subdivision (b)(5) is to increase the minimum parole
eligibility date on a willful, deliberate, and premeditated attempted murder sentence.
Absent a determination the accused is subject to the enhanced sentencing provisions of
section 186.22 or some other provision of law, a sentence for willful, deliberate, and
premeditated murder is for a life term with a minimum wait for parole of seven years. (§
3046, subd. (a)(1).) However, once a finding pursuant to section 186.22, subdivision
(b)(5) is returned, the minimum wait for parole eligibility under a life sentence is
increased to 15 years.[7] [Citations.]” (People v. Salas (2001) 89 Cal.App.4th 1275,
1280-1281, fn. omitted.)
Although the trial court stated that as to count 2 Gonzalez was sentenced to serve a
15 year to life term, and the abstract of judgment provided that Gonzalez is sentenced to
“15 years to life on count[] 2,” as noted above, Gonzalez’s correct sentence should have
been life with a 15 year minimum eligible parole date.
D. Gonzalez’s Argument Regarding His Abstract of Judgment
Gonzalez contends that the abstract of judgment should be amended to correctly
reflect the jury’s true finding on the firearm use enhancements. The Attorney General
agrees.
The abstract of judgment misstates the firearm use enhancements imposed on
counts 1 and 2. It provides that the enhancements on those counts are imposed under
7
Because the offense of willful, deliberate, and premeditated attempted murder “is
a violent felony [under 186.22, subdivision (b)(1)(C)] that is punishable by imprisonment
in the state prison for life [it] therefore is not subject to a 10-year enhancement under
section 186.22(b)(1)(C).” (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
24
“12022.53(D)(E)(1) PC,” but the jury found true the firearm use enhancements under
section 12022.53, subdivision (d). The abstract of judgment is to be corrected as to
counts 1 and 2 by deleting the reference to the firearm use enhancements under
“12022.53(D)(E)(1) PC,” and to include instead that the firearm use enhancements are
imposed under section 12022.53, subdivision (d).
E. Jaimez’s Argument That There is Insufficient Evidence to
Support the Jury’s True Findings for the Gang Enhancements.
Jaimez contends that there is insufficient evidence to support the jury’s finding
that he falsely imprisoned Reynoso and dissuaded her from reporting a crime for the
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.
We disagree.
1. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269 . . . .) We apply
an identical standard under the California Constitution. (Ibid.) ‘In determining whether a
reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the
appellate court “must view the evidence in a light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162
Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.) In
reviewing the sufficiency of the evidence, “a reviewing court resolves neither credibility
issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.]” (Id. at p. 1181.)
25
We will reverse for insufficient evidence only if ‘“‘“upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].”’”’” (People v. Manriquez
(2005) 37 Cal.4th 547, 577.) This standard of review applies to gang enhancement
findings. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508; People v. Villalobos
(2006) 145 Cal.App.4th 310, 321-322.)
2. Background Facts
Detective Lugo testified that Jaimez and Gonzalez were high level members of the
Little Valley gang. Detective Lugo testified that the primary activities of Little Valley
include “anything from graffiti, tagging, to sales of narcotics to sales and transportation
of weapons, extortion, burglaries, grand thefts, robberies, assaults, physical assault,
assault using weapons, shootings, drive-bys, kidnappings, attempted murders, murders,
and anything that falls within that realm.”
There is substantial evidence to support the gang enhancement. According to
Detective Lugo, it is important to gang members that people in the community who are
not gang members respect and fear them. Detective Lugo testified, “[T]hat way people
will not come forward and help out . . ., will not be witnesses to an incident, will not call
in an incident, [and] will not cooperate with police due to fear.” Witnesses that live
within a gang’s territory often recant earlier statements because they “fear for their lives
and the lives of their loved ones.”
The prosecutor asked Detective Lugo to assume, hypothetically, facts closely
tracking the evidence concerning the false imprisonment of Reynoso and dissuading her
from reporting a crime. Based on those facts, Detective Lugo opined that those crimes
against Reynoso would have been committed for the benefit of, at the direction of, or in
association with a criminal street gang. Detective Lugo stated that the basis for his
opinion was, “[T]he fear and the intimidation [the gang] expect[s] to have within their
gang turf and territory. When a gang member runs, approaches a citizen of the
community, identifies himself who they are, who they’re affiliated with, they expect they
will cooperate due to the fear and intimidation that they have established within the
26
community. [¶] That means they expect of that person, expect full cooperation . . . in
order to elude capture from police. [¶] He’s hoping, this individual is hoping to elude
capture by police due to the fact that this person will do what they are told because that
person, once he establishes himself as a member of that gang where the citizen lives with
him, he has the backing of all of the members of the gang and possibly their family
members.” The following exchange then occurred: “[Prosecutor:] So the fact this
individual evokes or says that he is part of Little Valley, he’s utilizing the backing of the
gang, is that what you were saying? [¶] [Detective Lugo:] Yes. [¶] [Prosecutor:]
Okay. When you say ‘backing of the gang,’ what do you mean? [¶] That means that at
any given time any gang member associated with that particular gang can retaliate against
that citizen if they don’t cooperate or any of their family members.” Deputy Lugo
testified that the witness intimidation and false imprisonment of the homeowner
described in the hypothetical will also further, promote and assist criminal conduct by the
gang because “other gang members from that gang will expect that they can also do the
same things within that community as long as they are associated with that particular
gang. [¶] They will expect that the word gets out on the street by the good citizenship of
that community and they will know that this gang is to be feared, it is to be obeyed at all
costs.”
3. Analysis
Section 186.22, subdivisions (b)(1) and (b)(4) provide for a sentence enhancement
for any person who is convicted of a felony “committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members . . . .” A gang expert properly
may testify about gang affiliation and activity where such evidence is relevant to an issue
of motive or intent. (People v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v.
Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew), disapproved on another point in
People v. Vang (2011) 52 Cal.4th 1038, 1047.) A gang expert properly may testify about
“whether and how a crime was committed to benefit or promote a gang.” (Killebrew,
27
supra, 103 Cal.App.4th at p. 657.) Similarly, a gang expert may testify about whether a
defendant acted for the benefit of a gang, even though the question is an ultimate factual
issue in the case, if such matters are beyond the jury’s common experience. (People v.
Valdez (1997) 58 Cal.App.4th 494, 506-509; Killebrew, supra, 103 Cal.App.4th at p. 651,
citing Evid. Code, § 805 [“Otherwise admissible expert opinion testimony which
embraces the ultimate issue to be decided by the trier of fact is admissible”].) “‘Expert
opinion that particular criminal conduct benefited a gang’ . . . can be sufficient to support
the . . . gang enhancement. (People v. Albillar [(2010)] 51 Cal.4th [47,] 63.)” (People v.
Vang, supra, 52 Cal.4th at p. 1048.)
Detective Lugo opined that the false imprisonment of Reynoso and dissuading her
from reporting a crime would have been committed for the benefit of, at the direction of,
or in association with a criminal street gang. Reynoso’s residence was within Little
Valley’s territory, and detective Lugo testified that Jaimez and Gonzalez were high level
members of the Little Valley gang. Detective Lugo testified that in order for a gang to
establish their territory, it must commit crimes within that territory, creating an
atmosphere of fear and intimidation that dissuades witnesses of crimes from reporting the
crimes and testifying in court. He said that it is important to gang members that people in
the community who are not gang members respect and fear them—“that way people will
not come forward and help out . . ., will not be witnesses to an incident, will not call in an
incident, [and] will not cooperate with the police due to fear.” He added that witnesses
that live within a gang’s territory often recant earlier statements because they “fear for
their lives and the lives of their loved ones.”
Reynoso testified that upon seeing the “uninvited” person, later identified as
Jaimez, on her property, she told her family members to stay in the house and she locked
the security gate. Reynoso told the police that Jaimez told her he had a gun and directed
her to tell the police that he was her friend. Although she did not see the gun, Reynoso
sat on her front porch with Jaimez because she was “scared.” Deputy Gutierrez testified
that Reynoso later advised him that Jaimez told Reynoso that the police were searching
28
for him, he was a Little Valley gang member, and Jaimez or his gang member friends
would harm Reynoso or her family if she tried to leave.
Even at the time of trial Reynoso testified that she was afraid to testify in this case.
Many of Reynoso’s answers to the prosecutor’s questions asked during the trial were “I
don’t remember.” During trial she began to cry, and she said that, “All I want to say is
that I don’t want to have any problems. I’m very scared. I don’t want to have any
problems with this man and I don’t know anything.”
Jaimez contends that he “invoked his gang affiliation for his own personal reasons
in an unsuccessful attempt to avoid arrest, probably because he had violated a condition
of his recent parole by associating with Gonzalez.” (Italics added.) A reasonable jury,
however, could conclude that Jaimez falsely imprisoned Reynoso and intimidated her in
order to avoid being apprehended by the police to protect his fellow gang member,
Gonzalez, from murder charges—i.e., a benefit to the gang. Detective Lugo testified that
in order for a gang to establish their territory, it must create an atmosphere of fear and
intimidation that dissuades witnesses of crimes from reporting the crimes and testifying
in court.
F. Jaimez’s Argument Regarding the Trial Court Having Erred in
Admitting Expert Testimony of Prior Shootings Between Little Valley
Gang Members and Denying Jaimez’s Motion for New Trial Made on
that Basis.
Jaimez contends that the trial court abused its discretion in admitting expert
testimony of prior shootings between Little Valley gang members and denying Jaimez’s
motion for new trial made on that basis. We disagree.
1. Standard of Review
As noted above, “we apply an abuse of discretion standard of review to any ruling
by a trial court on the admissibility of evidence.” (People v. Guerra, supra, 37 Cal.4th at
p. 1140; People v. Carter, supra, 30 Cal.4th at p. 1194.) “[W]e independently review
29
orders denying a motion for new trial to determine if prejudicial trial error occurred
(People v. Ault (2004) 33 Cal.4th 1250, 1261 [17 Cal.Rptr.3d 302, 95 P.3d 523]).”
(People v. Mayham (2013) 212 Cal.App.4th 847, 850.) If the erroneous admission
“implicates defendant’s federal constitutional rights to due process and concerns the
fundamental fairness of his trial, we will apply the de novo standard of review.”
(Albarran, supra, 149 Cal.App.4th at p. 225, fn. 7.)
2. Procedural and Background Facts
On or about December 6, 2008, Jaimez filed a motion to exclude gang expert
testimony seeking to exclude gang expert testimony concerning prior shootings between
Little Valley gang members.8 The motion sought to exclude the evidence as being more
prejudicial than probative. The prosecution opposed the motion arguing the evidence
was relevant to, inter alia, the motive for the murder and attempted murder—i.e., to
discipline a member for leaving the gang without permission. The trial court ruled that
the prosecution could elicit testimony that there had been shootings between Little Valley
gang members, but prohibited eliciting evidence of the details of each incident, stating,
“[W]e are not going to have separate trials on each of these prior incidents . . . . Under
[Evidence Code section] 352, it would be time consuming and we would have a mini trial
in each of these other cases.”
Detective Lugo testified that “every so often” Little Valley engaged in an “in-
house cleaning”—shootings between Little Valley gang members. This process began
after an incident in January 2001 in which one Little Valley member was killed and
another shot by three other Little Valley members. That incident was of special
significance to Little Valley in that it started what Detective Lugo refers to as a “Civil
8
We granted Jaimez’s motion to augment the record on appeal to augment the
record to include the motion to exclude. The motion to exclude does not contain a file
stamp from the trial court, but a proof of service is attached to it stating that it was served
on December 6, 2008, and the parties and the trial court referred to it during trial on
December 7, 2010.
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War” or “in-house beefs.” Detective Lugo testified that subsequent Little Valley “in-
house shootings” occurred: one in 2003, three in 2005, and one in December 2006.
Detective Lugo testified that people were convicted of the January 2001 incident.
No one had been prosecuted for the remaining instances of “in-house shootings” referred
to above, but Detective Lugo had “personal dealings” with the investigation of each of
them and obtained “gang intelligence” about them.
Detective Lugo testified that the instances of Little Valley’s “in-house cleanings”
were related to “tightening up the ship”—keeping the gang members in order, making
sure they followed the rules of the gang, and stayed loyal to the gang. Hispanic gangs
generally engage in such “in-house cleanings” against members perceived to be
“snitch[es],” or members who refuse to follow orders, disrespect well-respected gang
members, or leave the gang.
After the introduction of evidence, the trial court instructed the jury under
CALCRIM No. 1403, as modified, as follows: “You may consider evidence of gang
activity only for the limited purpose of deciding whether: The defendant acted with the
intent, purpose, and knowledge that are required to prove the gang-related crimes and
enhancements; [¶] or the defendant had a motive to commit the crimes charged. [¶] You
may also consider this evidence when you evaluate the credibility or believability of a
witness and when you consider the facts and information relied on by an expert witness
in reaching his or her opinion. [¶] You may not consider this evidence for any other
purpose. You may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”
After the jury rendered its verdict, finding, inter alia, that Jaimez guilty of the false
imprisonment and dissuading a witness from reporting, and being deadlocked on whether
Jaimez was guilty of murder and attempted murder, Jaimez made an oral motion for new
trial contending that he did not receive a fair trial because, inter alia, there was
speculative evidence that Little Valley members killed other members of the gang, which
had no relevance to the crimes of false imprisonment and dissuading a witness. The trial
court denied the request for a new trial, stating that, inter alia, “As for receiving a fair
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trial, it’s clear from the fact that these jurors did not convict the defendant on count 1, a
murder charge, and count 2, an attempted murder charge, that he did receive a fair trial.
They were very clearly able to distinguish the facts in the case. They were able to
rationally analyze all the facts in the case. They were able to distinguish between his
various crimes and that the defendant did receive a fair trial. The rulings of the court
were according to the law, and I will deny the request for a new trial.”
3. Analysis
a. Forfeiture
The Attorney General contends that Jaimez forfeited his contention that the trial
court abused its discretion in denying his motion to exclude gang expert testimony
concerning prior shootings between Little Valley gang members by failing to raise this
claim in his opening brief. We disagree.
In Jaimez’s opening brief, he discussed that he had made the motion to exclude
objecting to the gang expert’s prospective testimony regarding Little Valley’s “intra-gang
killings between 2001 and 2006,” his counsel’s argued the motion at the hearing on the
matter, the trial court ruled on the motion, and on appeal he made a motion to augment
the record to include the motion to exclude in it. In Jaimez’s opening brief, he also stated
that the trial court erred by, inter alia, “admitting the testimony as to Little Valley’s
violent history of ‘in-house cleaning’ in the first place,” and argued the basis upon which
he contended the trial court abused its discretion by admitting the testimony.
The Attorney General also contends that Jaimez forfeited his contention that the
trial court erred in denying his motion for new trial regarding the trial court’s admission
of gang expert testimony concerning prior shootings between Little Valley gang members
because “he did not present this specific claim in his [oral] motion for new trial before the
trial court.” Jaimez’s counsel, however, orally moved for new trial stating, inter alia,
“[I]t was impossible for my client to receive a fair trial based on . . . the fact that so much
evidence or so much speculation in the form of evidence and opinion came in in terms of
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gang functions, in terms of killing other members of the gang for leaving . . . .” Jaimez
did not forfeit his contention.
b. Expert Testimony of Prior Little Valley’s Intra-Gang
Shootings
Jaimez contends that the admission of the gang expert testimony concerning prior
shootings between Little Valley gang members had minimal probative value and was
prejudicial. Whether we apply the abuse of discretion standard of review or the no novo
standard, the trial court did not err.
At the first trial, Jaimez and Gonzalez were both on trial for murder and attempted
murder, and the prosecutor’s theory of the case was that the attempted murder was an “in-
house shooting.” The evidence was relevant to establish that the attempted murder of
Bonifacio was gang related and whether the defendants had a motive to commit the
crimes charged. Detective Lugo testified that the instances of “in-house cleanings” were
related to the gang keeping its members in order, and to make sure they followed the
rules of, and stayed loyal to, the gang. He said that Hispanic gangs generally engage in
such shootings against its members who disrespect well-respected gang members or leave
the gang.
Jaimez contends that the challenged evidence was inadmissible “to show that
because gangs have engaged in crimes like the ones charged at trial, . . . defendant must
have committed the crime.” Jaimez also argues that he was prejudiced by the admission
of the evidence of prior shootings between Little Valley gang members because it was
reasonably probable that “the jury based its findings that the gang enhancements were
true on the ‘intimidation’ that Detective Lugo testified about [i.e., that the prior instances
of ‘in-house cleanings’] . . . rather than finding [that] the ‘intimidation for the benefit of
the gang’ was [based on his] crimes against Reynoso . . . .” Relying on Albarran, supra,
149 Cal.App.4th 214, Jaimez argues, therefore, that he was prejudiced by the introduction
of evidence of the prior Little Valley’s intra-gang shootings resulting in a fundamentally
unfair trial.
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In Albarran, supra, 149 Cal.App.4th 214, defendant was convicted of attempted
murder, shooting at an inhabited dwelling (the home of Michael Bacelis), and attempted
kidnapping for carjacking. The prosecutor’s gang expert testified that the defendant’s
gang committed a number of criminal offenses, including robberies, drive-by shootings,
car-jackings, and felony vandalism, and that gang members gain respect by committing
crimes and intimidating people. (Id. at p. 221.)
The court in Albarran, supra, 149 Cal.App.4th 214, held that there was
insufficient evidence to prove that the purpose of the charged crimes was to gain respect
among other gang members, stating, “In our view, however, there was insufficient
evidence to support the contention that this shooting was done with the intent to gain
respect.” (Id. at p. 227.) The court reasoned that “the motive for the underlying crimes,
in particular the shooting at Bacelis’s house, was not apparent from the circumstances of
the crime” because the shooting occurred at a private birthday party for Bacelis’s cousin,
Bacelis’s gang did not have any known or relevant gang rivalries, and although the
prosecution’s gang expert testified that a gang member gains respect if his identity—or
the identity of his gang—becomes known to the victims within the gang community
and/or the neighborhood, there was no evidence there that the victim in that case knew
the identity of the defendant or his gang. (Ibid.) “There is nothing inherent in the facts of
the shooting to suggest any specific gang motive. In the final analysis, the only evidence
to support the respect motive is the fact of [the defendant’s] gang affiliation.” (Ibid., fn.
omitted.)
The court in Albarran, supra, 149 Cal.App.4th 214, found that “the gang evidence,
i.e., threats against police, reference to the Mexican Mafia, and descriptions of other
crimes committed by other gang members, was irrelevant, cumulative and presented a
substantial risk of undue prejudice. The paramount function of this evidence was to show
[the defendant’s] criminal disposition . . . .” (Id. at p. 228.) But, the court explained,
“‘Only if there are no permissible inferences the jury may draw from the evidence can its
admission violate due process. Even then, the evidence must ‘be of such quality as
necessarily prevents a fair trial.’ [Citations.] Only under such circumstances can it be
34
inferred that the jury must have used the evidence for an improper purpose.’ [Citation.]”
(Id. at p. 229.)
The trial court determination that the introduction of the challenged evidence was
not substantially more prejudicial to Jaimez than probative was not an abuse of
discretion. Here, in contrast to Albarran, supra, 149 Cal.App.4th 214, the challenged
evidence had a legitimate purpose at trial— it was directly relevant to establish that the
attempted murder of Bonifacio was gang related and whether defendants had a motive to
commit the crimes charged. The instances of the Little Valley’s “in-house cleanings”
were related to the gang keeping its members in order, and making sure they followed the
rules of, and stayed loyal to, the gang. Detective Lugo testified that a gang’s “in-house
cleanings” also occur against the gang’s members who disrespect well-respected gang
members or leave the gang. There was evidence that Bonifacio left the Little Valley gang
without the gang’s “permission,” and disrespected “Nani,” a well-respected gang
member.
In addition, the trial court prohibited eliciting the details of each incident of Little
Valley’s intra-gang shootings, and the jury was instructed that the evidence of gang
activity was admitted for the limited purpose of proving the gang enhancement and to
show motive, and that it could not be considered for any other purpose, including as
character evidence. As noted above, we presume the jury followed the trial court’s
instructions. (People v. Avila, supra, 46 Cal.4th at p. 719; People v. Bennett, supra, 45
Cal.4th at p. 596; People v. Johnson, supra, 180 Cal.App.4th at p. 710.)
G. Jaimez is Entitled To Presentence Conduct Credit
Jaimez was convicted of false imprisonment in violation of section 236, and
witness dissuasion in violation of section 136.1, and the jury found true that both offenses
were committed for the benefit of a criminal street gang under various subparts of section
186.22, subdivision (b). The trial court awarded Jaimez 1, 025 days of actual custody
credit, but did not award him any conduct credit because “[t]here is no good time/work
time credits [sic] on a life sentence.” In his opening brief, Jaimez contends that the trial
35
court erred because he was entitled to presentence conduct credit. (People v. Brewer
(2011) 192 Cal.App.4th 457, 462; see People v. Duff (2010) 50 Cal.4th 787, 793 [“[t]he
circumstance that a defendant is sentenced to an indeterminate sentence does not preclude
the earning of presentence conduct credit”].) Jaimez concedes that his presentence
conduct credit is limited to 15 percent under section 2933.1, but calculates that he is
entitled to 154 days of presentence custody credit. The Attorney General agrees that
Jaimez is entitled to presentence conduct credit, but contends that under section 2933.1
he is entitled to 153 days of credit, not 154 days. In his reply brief, Jaimez does not
dispute the Attorney General’s contention that he is only entitled to 153 days of credit.
We hold that Jaimez is entitled to 153 days of presentence custody credit.
Section 4019 authorizes an award of presentence conduct credit, but under section
2933.1, notwithstanding section 4019, a defendant’s presentence conduct credit is limited
to 15 percent of his actual days of presentence confinement. Fifteen percent of 1,025
days totals 153.75 days. Because Jaimez can accrue as presentence conduct credit no
more than 15 percent of his actual days of presentence confinement, he is entitled to 153
days of presentence conduct credit, not 154 days as he contends.
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DISPOSITION
Gonzalez’s abstract of judgment shall be corrected by stating that he is sentenced
on count 2 to a life term with a 15 year minimum eligible parole date, instead of a term of
“15 years to life,” and the firearm use enhancements are imposed under section 12022.53,
subdivision (d) instead of under “12022.53(D)(E)(1) PC;” and Jaimez’s abstract of
judgment shall be corrected to provide that he is entitled to 153 days of presentence
conduct credit. We otherwise affirm the judgments.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
O’NEILL, J. *
*
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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