People v. Vasquez

Filed 5/25/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C071195
Plaintiff and Respondent, (Super. Ct. No. CRF102016)
v.
SALVADOR BENJAMIN VASQUEZ, JR., et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Yolo County, Stephen L.
Mock, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant Salvador Benjamin Vasquez, Jr. Victor Blumenkrantz, under appointment by
the Court of Appeal, for Defendant and Appellant Jose Antonio Duran. Janet J. Gray,
under appointment by the Court of Appeal, for Defendant and Appellant Joseph Vincent
Sisneros.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Kenneth
N. Sokoler and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts one through nine and 11 of the Discussion.
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While repeatedly shouting “Nortes” or “Nortenos,” defendants Salvador Benjamin
Vasquez, Jr., Jose Antonio Duran, and Joseph Vincent Sisneros violently assaulted and
robbed a stranger in a business parking lot and then threatened or attacked several
employees who witnessed the beating and called police. They were tried jointly and were
each convicted of multiple offenses with related enhancements, as noted, post.
With each defendant joining in material contentions of the others to the extent they
are relevant, defendants raise numerous purported errors on appeal. They first argue (1)
as to their Penal Code section 136.1 convictions (undesignated section references are to
the Penal Code), the jury never found that Sisneros and Duran used force or the threat of
force or violence to dissuade a witness; (2) Sisneros’ and Duran’s respective counsel
were ineffective for failing to object to the section 136.1 force or violence special
finding; and that (3) insufficient evidence supports their section 136.1, subdivision (c)(1)
convictions.
Defendants next claim the court erred (4) by denying their motion to dismiss the
entire jury panel, and (5) in imposing multiple punishments for the second degree robbery
and dissuading a witness convictions contrary to section 654’s prohibitions.
Finally, defendants raise several claims regarding the gang evidence admitted
below as well as the sufficiency of the evidence to support the charged gang offenses and
enhancements. They argue the court erred in admitting evidence of Duran’s juvenile
robbery adjudication through expert testimony because (6) it was more prejudicial than
probative under Evidence Code section 352; and (7) it violated their Sixth Amendment
right to confront witnesses. They further contend the court erred in (8) allowing the gang
expert to opine on the specific intent of hypothetical gang members; (9) that their
responses to jail booking questions regarding gang membership were inadmissible; (10)
that insufficient evidence establishes the existence of a “criminal street gang” under
People v. Prunty (2015) 62 Cal. 4th 59 (Prunty), thus requiring reversal of their
substantive gang offense convictions as well as all of the attached gang enhancements;
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and (11) that insufficient evidence shows they “actively participat[ed]” in a criminal
street gang under section 186.22, subdivision (a).
We affirm the judgments.
FACTS AND PROCEEDINGS
The Assault and Robbery of Noah Fordyce
After getting off work around 10:00 p.m. on April 19, 2010, Noah Fordyce
purchased some nachos and drove to the Lowe’s parking lot in West Sacramento. He
parked and began eating while he watched a show on his iPod. The driver’s side window
of his car was down, and Fordyce’s seatbelt was still buckled.
A red car occupied by several men pulled into the parking lot and parked behind
Fordyce’s car. Three men got out of the red car and came to Fordyce’s driver’s side
window. They told him they had been drinking, and one of the men grabbed a nacho
chip from Fordyce’s food. The three men then returned to their car.
A few minutes later, the three men returned to Fordyce’s window. One man
reached in and grabbed Fordyce’s iPod. The men began taking turns violently punching
Fordyce in the head. While doing so, the men yelled out “Los Nortenos” or “Los Nortes”
multiple times. One of the men said he had a knife. They demanded Fordyce’s wallet
and keys. Fordyce did not fight back and tried to cover his head from the blows, which
continued even after he gave them his wallet and keys. During the assault, Fordyce’s
nachos were smeared on the inside and outside of his vehicle. Among other injuries,
Fordyce suffered two facial bone fractures in the unprovoked attack.
The Assault of Carlos Lozano
While the three men were taking turns hitting Fordyce, four Lowe’s employees,
Rick Deanda, Chantelle Parr, Camden Cushing, and Carlos Lozano, walked out of the
Lowe’s store, which was closing. They immediately noticed a commotion and yelling
coming from the direction of Fordyce’s vehicle. They saw three men attacking Fordyce
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through his car window. One man was wearing a black sweatshirt or shirt, another was
wearing a white hooded sweatshirt, and the third man was wearing a white shirt.
Deanda, the store manager, instructed the employees to stay away and to call the
police. Deanda heard the word “Norte” yelled out during the attack on Fordyce.
Cushing called 911 to report the attack. While Cushing was on the phone with the
911 operator, one of the men accosting Fordyce noticed him on the phone and yelled out
that Cushing was “calling the cops.” The three men then got into their car and sped
quickly towards Cushing. The man wearing the white hooded sweatshirt was driving.
While the three men were distracted by the Lowe’s employees, Fordyce got out of his car
and ran to hide by the Lowe’s store.
Cushing stepped behind a nearby light pole to put something between him and the
car. After the car abruptly stopped, the three men jumped out and began yelling at
Cushing, asking him, “You calling the cops on us, fucking Nigga, fucking Norte?” All
three men were yelling at Cushing. The man wearing the black sweatshirt told Cushing,
“I’ll fucking shoot you. I got a fucking gun, Nigga. I’ll fucking shoot you. You calling
the cops on me?” Cushing saw the man holding a dark object near his waistband, which
Cushing thought was a gun. While the man was threatening him, the other two men
began running towards Cushing. Cushing turned and ran towards the parking lot exit.
Lozano was standing a short distance behind Cushing at the time. Frightened,
Lozano stood still and put up his hands to signal that he did not want any problems. The
two men chasing Cushing, however, began attacking Lozano instead. They kicked and
punched him in the chest and face. The man wearing the black sweatshirt stood back
while the other two men attacked Lozano. Lozano heard someone yell, “Norteno.” The
men eventually stopped assaulting Lozano, got into their car, and drove away. As a result
of the attack, Lozano suffered injuries to his nose, eyes, and face.
Parr walked quickly towards her car. She heard one of the men screaming that he
was “going kill this nigga,” and another yelling “Norte.” She saw the three men get into
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their car and drive towards Cushing and Lozano. She saw at least two of the three men
attack Lozano. She drove out of the parking lot and then pulled over to call the police.
While leaving, she saw two other men standing on the road near the parking lot exit. One
was wearing a dark shirt and long jeans shorts, and the other was wearing a white shirt
with a cartoon figure on it.
As Parr was on the phone with the police, she saw the red car drive by on the
street. The man in the white hooded sweatshirt was driving, and the man with the white
cartoon shirt, whom Parr had seen on the side of the road, was also in the car.
Minutes later, an officer called to the location of the assaults passed a red car
matching the description of the suspects’ vehicle. The officer stopped the car and saw the
passenger in the back seat on the right moving around and throwing things out of the
window. Luis Vasquez, defendant Vasquez’s brother, was sitting in the right rear
passenger seat. Duran was driving the car, and Vasquez was sitting in the front passenger
seat. Ryan Boyd, also known Ryan White or Derek White, was sitting in the center of the
back seat, and Sisneros was sitting in the left rear passenger seat.
At the time, Duran was wearing a white hooded sweatshirt and was carrying a
knife. Sisneros was wearing a white shirt that had a nacho cheese stain on the front.
Vasquez was wearing a black shirt, which may have had the sleeves pushed up. Luis
Vasquez was wearing a black sweater, and Ryan Boyd was wearing a white shirt with a
cartoon logo on it. None of the men had changed their clothes since being arrested.
Upon searching the car, authorities found Fordyce’s iPod and wallet which were
located on the floorboard under the driver’s seat. A pair of jean shorts with a red belt
were in the backseat.
Witness Identifications and Police Interrogations
The suspects were taken to a nearby location for a “field showup.” Fordyce was
unable to identify any of the men, but did identify the red car as the one in which his
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attackers were riding. Cushing identified Duran, Vasquez, and Sisneros as the men who
attacked Fordyce and Lozano. Parr identified Duran and Vasquez as two of the primary
assailants. She also identified Duran as the driver of the red car. Lozano identified
Duran, Vasquez, and Sisneros as the men who assaulted him.
Thereafter, the police interviewed each defendant separately on videotape
following standard Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436 [16
L. Ed. 2d 694] (Miranda).) The interviews of Sisneros and Duran were played for the
jury; the court prohibited the People from playing Vasquez’s taped interview because he
invoked his Miranda rights when the interview began.
Sisneros told police he was passed out drunk in the back seat of Duran’s car
during the attack and that he never hit anyone. He could not explain how the nacho
cheese stain got on his shirt. When asked why his left hand was bruised and swollen,
Sisneros, who was left handed, claimed his knuckles always looked that way.
In response to the interrogating officer’s statement, “So, you’re a norteno,”
Sisneros stated, “If I was to get locked up, I’d ride with northerners, yeah.” Sisneros also
told the officer that his “family was always northerner,” and that he “just hood bang[s].”
After the officer asked him whether he was a Norteno from Del Paso Heights, Sisneros
responded that if he were “representing” himself, he “would go as a northerner, yeah.
Northerner from the heights.” Sisneros also admitted he knew Frank White, a well-
documented Norteno gang member.
Duran admitted the red car was his and that he was driving the car that night.
When asked how long he had been a Norteno, Duran responded, “Who said I was?” The
officer then told Duran that apparently he had admitted being a Norteno gang member to
someone in Sacramento. Duran also said he was “not proud of it” in response to the
officer’s question of whether he was proud of being a Norteno. He later denied being a
gang member, however, and said he was not with any particular Norteno crew. When
asked why his hands and knuckles were bruised, Duran claimed that his hands always
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looked that way. Towards the end of the interview, Duran yelled out “Norte” while
attempting to communicate with another suspect in the room next door.
Trial Proceedings
A December 2010 information charged Duran, Vasquez, and Sisneros with the
following: conspiracy to commit robbery (§ 182, subd. (a)(1) [count 1]), second degree
robbery (§ 211 [count 2]), battery with serious bodily injury of Fordyce (§ 243, subd. (d)
[count 3]), assault with force likely to cause great bodily injury of Fordyce (§ 245, subd.
(a)(1) [count 4]), dissuading a witness (§ 136.1, subd. (c)(1) [count 5]), criminal threats
against Cushing (§ 422 [count 6]), assault with force likely to cause great bodily injury of
Cushing (§ 245, subd. (a)(1) [count 7]), battery with serious bodily injury of Lozano
(§ 243, subd. (d) [count 8]), assault with force likely to cause great bodily injury of
Lozano (§ 245, subd. (a)(1) [count 9]), criminal threats against Lozano (§ 422 [count
10]), and active participation in a criminal street gang (§ 186.22, subd. (a) [count 11]).
Duran was charged individually in count 12 with drawing and exhibiting a deadly
weapon other than a firearm in furtherance of criminal street gang activity, but this count
was later dismissed. (§§ 186.22, subd.(d), 417, subd. (a)(1).)
Several enhancements were alleged relating to the substantive offenses. For
counts 1 through 10, the information alleged defendants had committed the crimes for the
benefit of, at the direction of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in criminal conduct by gang members.
(§ 186.22, subd. (b)(1).) For counts 1, 2, 4 and 9, it was further alleged that all three
defendants inflicted great bodily injury when they committed the charged offenses.
(§ 12022.7, subd. (a).) And, for counts 2, 5, and 7, it was alleged Duran personally used
a deadly weapon. (§ 12022, subd. (b)(1).) Defendants pleaded not guilty to all of the
charges and enhancements.
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The Prosecution Case
At trial, Fordyce, Deanda, Cushing, Lozano, and Parr testified about the above-
described events. Fordyce testified that the three men shouted out “Los Nortenos” or
“Los Nortes” in a way that Fordyce was supposed to remember it.
Parr testified she was familiar with gangs having grown up in a neighborhood with
numerous Norteno gang members, and understood the term “Norte” to be a gang related
term that referred to the Norteno criminal street gang. She feared retaliation for
testifying. Although she had identified Duran as the car driver wearing the white hooded
sweatshirt and Vasquez as the man wearing the black shirt and jeans who were two of the
primary assailants during the field line-up at the time of the incident, she was unable to
identify any of the defendants at the time of trial.
Cushing, who was a military police officer, was also familiar with the term
“Norte” from gang training he received from the FBI and the Department of Homeland
Security. Based on his training, he believed the attacks on Fordyce and Lozano were
gang related. He was afraid to testify because he feared gang retaliation.
At trial, Cushing identified all three defendants as the men who attacked Fordyce
and Lozano. He specifically identified Vasquez as the man wearing the black sweatshirt
who threatened to shoot him. Similarly, Lozano testified that Vasquez was the man in
black who threatened to shoot him and Cushing. He identified Duran and Sisneros as the
men who actually punched and kicked him. At the time of the attack, Lozano understood
the term “Norteno” to be gang related, and he felt increased fear and intimidation as a
result.
Detective John Sample, a veteran officer with the Sacramento Police Department,
testified as the People’s gang expert. Detective Sample had investigated hundreds of
Hispanic criminal street gang crimes, and talked with or otherwise came in contact with
Hispanic gang members on a daily basis. He had received specialized training in
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Hispanic criminal street gangs throughout his law enforcement career, and predominantly
investigated the Norteno and Sureno criminal street gangs. He also talked with other
officers about gang issues, reviewed gang reports from other jurisdictions, and reviewed
field identification cards identifying gang members in the Sacramento area.
Detective Sample testified regarding Hispanic criminal street gangs generally, and
about the “primary activities” of the Norteno gang specifically, including murder, assault
with a deadly weapon, robbery, narcotics trafficking, firearms offenses, and weapons
violations. The Norteno criminal street gang originated from a prison gang called
Nuestra Familia. There are approximately 1,500 validated Norteno gang members in the
Sacramento region, generally organized into sets or subsets based on the neighborhoods
in which the gang members live. Some of these subsets include the Richardson Village
Nortenos and Del Paso Heights Nortenos in North Sacramento as well as the Broderick
Boys in West Sacramento, among several others.
These different Norteno subsets often hang out together and commit crimes
together, including Richardson Village Nortenos and Norteno gang members from West
Sacramento. According to Detective Sample, a Norteno gang member’s first allegiance
is to the Norteno gang itself, aside from their set or subset. Thus, a crime committed by a
Del Paso Heights Norteno or a West Sacramento Broderick Boys benefits not only the
other Norteno subsets but also the larger Norteno criminal street gang as a whole.
Common Norteno gang signs and symbols among all subsets of Nortenos include
the color red, the words Norte or Northerner, the letter N, which is the fourteenth letter of
the alphabet, the number 14 or any variation of that number including the numbers one
and four, roman numerals XIV, or one dot and four dots. Norteno gang members often
use hand signs to show their gang affiliation.
Detective Sample testified that in gang culture, respect is like street currency.
Respect in a gang is obtained by committing crimes and other acts of fear or intimidation.
Gang members “put in work” for the gang, meaning they commit crimes, to show their
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loyalty to the gang and to raise their status within the gang. Violent gang crimes
intimidate members of the community from reporting crimes, which allows gangs to
operate without inhibition.
Detective Sample opined that Sisneros, Vasquez, and Duran were all active
Norteno criminal street gang members. He based his opinion about Sisneros on several
factors, including that Sisneros was involved in the present crimes, which Detective
Sample believed were gang-related. Sisneros had also been found in the company of
other Norteno gang members on multiple occasions, was documented wearing red gang-
related clothing, and he admitted during the police investigation of the charged crimes
that he “hood bangs” with Northerners and that his family members were Norteno gang
members. Detective Sample also considered Sisneros’ responses to jail classification
questions where he said he hangs with Northerners, although he denied being a gang
member.
For Vasquez, Detective Sample noted that the Sacramento Police Department had
contacted him on multiple occasions associating with Norteno gang members, including
during a 2009 homicide investigation. During those contacts, Vasquez was wearing red
clothing consistent with Norteno-style dress. Vasquez had a tattoo on his chest of the
letters “RVN,” which Vasquez admitted stood for the Richardson Village Nortenos, a
Norteno subset from Del Paso Heights. Three months before the attacks on Fordyce and
Lozano, Vasquez had been shot three times while attending a gang-related party. In
response to jail booking questions, Vasquez said he hangs with Northerners, although,
like Sisneros, Vasquez denied any gang affiliation.
Photographs of Vasquez with other Norteno gang members, including one with
Ryan Boyd (also known as Ryan White or Derek White) who was arrested with
defendants, were posted on Vasquez’s personal MySpace webpage as well as on a
Richardson Village Norteno MySpace webpage. Some of the photographs depict
Richardson Village Nortenos together with Norteno gang members from West
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Sacramento. Vasquez and the others are wearing red clothing and throwing gang signs
with their hands. Several of the pictures were taken at the funeral of documented
Norteno gang member, Frank White.
Finally, in opining Vasquez was an active member of the Norteno criminal street
gang, Detective Sample considered a jail incident that occurred while Vasquez was
awaiting trial. Vasquez appeared to give a small, written jail communication known as a
“kite” to another inmate. The jail kite contained information about Norteno “curriculum”
that included a structured training process for the gang.
Detective Sample testified that he had seen other confiscated kites, in both jail and
prison, showing Norteno rosters of gang members within the facilities. Some kite rosters
listed both Richardson Village Nortenos and Del Paso Heights Nortenos together.
For Duran, Detective Sample cited his “yes” answer on the jail classification
questionnaire in response to a question asking if he had any gang affiliation. Duran listed
“Northerner” on the form. While Duran was awaiting trial on the present charges, he and
several other incarcerated Norteno gang members assaulted another jail inmate who
wanted to drop out of the Norteno gang.
In concluding Duran was an active gang member, Detective Sample also
considered the circumstances surrounding Duran’s juvenile adjudication for robbery with
a firearm. Duran and several Norteno gang members tied a man, used derogatory terms
for a rival Sureno gang member, and threatened to kill him if he did not give them his
ATM card and PIN number to withdraw money from the man’s bank account. The
investigation into the crime revealed the motive for the robbery was to obtain money to
post bail for a Norteno gang member who had been arrested for stealing a car. Defendant
was arrested in a house with Norteno gang graffiti and was wearing red clothing at the
time. He also told investigators that he only hangs out with Norteno gang members.
The other two men who were in the car when defendants were arrested, Ryan
Boyd and Luis Vasquez, were also Norteno gang members in Detective Sample’s
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opinion. Boyd’s gang monikers were Ryno or Chap or Chappy, and he had been
contacted by the police on numerous occasions associating with known Norteno gang
members while wearing a red bandana, an item commonly worn by Norteno gang
members. Detective Sample knew Boyd through other criminal gang investigations and
had written several reports about him. Boyd was the victim of a gang-related stabbing.
Searches of his residence revealed Norteno gang graffiti, and Boyd’s mother told
Detective Sample that Boyd considers himself a Norteno. He also appeared in
photographs with other Norteno gang members, including one picture in which Vasquez
was seen throwing gang signs.
Luis Vasquez, defendant Vasquez’s brother, had been documented by the
Sacramento Police Department in multiple reports as associating with known Norteno
gang members. He was photographed wearing red gang clothing, and, like his brother,
the letters “RVN” were tattooed across his stomach.
The prosecution presented evidence of three predicate offenses during trial. The
first predicate offense, known as the Memorial Park incident, occurred in March 2010.
Two brothers were assaulted by multiple Norteno gang members in a West Sacramento
park. One of the brothers was hit in the head with a hammer while the other was chased
down and severely beaten. During the attack the Norteno gang members yelled out
“Broderick,” referring to the West Sacramento “Broderick Boys” Norteno subset.
The second predicate offense occurred when the same Norteno gang members
involved in the Memorial Park incident tried to later intimidate the brothers and their
family members by driving by their house while making shooting motions and threats.
At least one of the gang members was convicted of committing an assault with a deadly
weapon or with force likely to produce great bodily injury (§ 245).
Detective Sample testified about a third predicate offense, a murder committed by
a validated Norteno gang member in 2007. The Norteno gang member was not affiliated
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with any particular Norteno set when he shot and killed an individual whom he believed
was a rival gang member.
The prosecutor posed several hypothetical questions to Detective Sample tracking
the evidence presented in the case. Detective Sample opined that the hypothetical crimes
as described, including that the persons shouted “Norte” during the robbery and assaults,
would benefit or promote the Norteno criminal street gang by informing the victims who
was committing the crimes and that the gang members were violent. This would
intimidate the witnesses and instill fear in the community, making it less likely the crimes
would be reported. Over defense objections, the prosecutor also asked Detective Sample
whether the hypothetical gang members involved in such crimes intended to further or
assist the criminal street gang. Detective Sample responded that the hypothetical
defendants, in his opinion, would intend their actions to promote or assist the gang.
The Defense Case
None of the defendants testified. During closing, Duran’s counsel argued the
crimes were not gang related, but rather crimes of opportunity committed by a group of
young people who had been partying but not otherwise associating as Norteno gang
members. Similarly, Sisneros characterized defendants as a group of drunken young
people who simply committed a crime of opportunity. Although his counsel
acknowledged that Sisneros “ran with the Northerners,” he denied the offenses were
committed on behalf of the Norteno criminal street gang. Vasquez’s counsel conceded
that three men had committed various crimes, but argued that those men were Duran,
Sisneros, and Luis Vasquez--not defendant Vasquez. He also argued that the crimes were
not gang related.
The Verdicts
Before the jury began deliberating, the prosecution dismissed count 12 against
Duran as well as the special allegations attached to counts 2 and 5 that Duran personally
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used a deadly or dangerous weapon when robbing Fordyce and dissuading Cushing from
reporting the crime. The jury acquitted each of the defendants of one count of assault by
means of force likely to produce great bodily injury. (§ 245, subd. (a)(1) [count 7].) And
Duran and Sisneros were acquitted of two counts of criminal threats. (§ 422 [counts 6
and 10].)
The jury convicted each defendant of dissuading a witness in count 5. The jury
also found true the special findings for count 5 regarding using force or the threat of force
to dissuade a witness. The three special finding forms include a caption identifying the
individual defendant to whom each specific form applied. The text of all three forms,
however, refers to Vasquez’s name only. The jury convicted defendants of all other
charges and found the attached enhancement allegations true, including the gang
enhancements alleged under section 186.22, subdivision (b)(1).
The court sentenced Vasquez to an aggregate prison term of 25 years four months
to life. Duran was sentenced to an aggregate 28 years eight months to life in prison, and
Sisneros to an aggregate prison term of 22 years to life.
DISCUSSION
I
Special Findings for Section 136.1 Convictions
Sisneros and Duran first argue that the jury did not find true the special finding
attached to count 5 that they dissuaded Cushing from reporting the attack on Fordyce by
using force, violence, or the threat of force or violence. In the absence of such a finding,
they contend the court erred in sentencing them to an indeterminate term of seven years
to life under section 186.22, subdivision (b)(4)(C).
“ ‘ “A verdict is to be given a reasonable intendment and be construed in light of
the issues submitted to the jury and the instructions of the court.” [Citations.]’ ” (People
v. Jones (1997) 58 Cal. App. 4th 693, 710.) “ ‘The form of a verdict is immaterial
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provided the intention to convict of the crime charged is unmistakably expressed.’
[Citation.]” (Ibid.) “ ‘[T]echnical defects in a verdict may be disregarded if the jury’s
intent to convict of a specified offense within the charges is unmistakably clear, and the
accused’s substantial rights suffered no prejudice. [Citations.]’ ” (Id. at pp. 710-711.)
In this case, the information charged each defendant with violating section 136.1,
subdivision (c)(1) by dissuading Cushing, who witnessed defendants viciously attacking
Fordyce, from reporting the crime to police. The information specifically alleged that all
three defendants dissuaded Cushing “by force, and by the express and implied threat of
force and violence . . . .”
The court instructed the jury that if jurors found defendants guilty of intimidating
a witness in violation of section 136.1, subdivision (c)(1), then jurors had to decide
whether the People had proved the additional allegation that defendants used or
threatened to use force when doing so. To prove this allegation, the court instructed the
jury that the People had to “prove that the defendant used or threatened, either directly or
indirectly, to use force or violence on the person or property of a witness or any other
person.”
The court further instructed the jury that it “must separately consider the evidence
as it applies to each defendant. You must decide each charge for each defendant
separately. If you cannot reach a verdict on all of the defendants, or on any of the
charges against any defendant, you must report your disagreement to the court and you
must return your verdict on any defendant or charge on which you have unanimously
agreed. [¶] Unless I tell you otherwise, all instructions apply to each defendant.”
The jury received separate written verdict forms relating to dissuading a witness as
alleged in count 5 for each defendant. Each verdict form included a caption identifying
the individual defendant to whom the respective verdict form applied. The jury marked
the guilty box on each defendant’s respective verdict form for count 5.
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The jury also received separate written special finding forms for each defendant on
count 5. As with the count 5 verdict forms, each special finding form includes a caption
identifying the individual defendant to whom the respective special finding form applied.
Each special finding form contained the following text:
“We, the Jury sworn to try the above-entitled case, find the special finding that the
Defendant SALVADOR BENJAMIN VASQUEZ JR, committed the felony charged in
Count 5, that the felony violation of Penal Code [section] 136.1 was malicious and done
with force or violence or the threat of force or violence as required by California Penal
Code 136.1(c) to be:
“[X] TRUE [ ] NOT TRUE.”
Thus, although there is a count 5 special finding form separately captioned for each
defendant, the text of each of the three forms refers to defendant Vasquez only.
Duran and Sisneros cite the above textual language in arguing that the jury did not
find that they used force or violence or threatened to use force or violence when
intimidating Cushing. In other words, they implicitly argue that the jury made the special
finding three separate times as to Vasquez, but never as to either of them even though
their names individually appear in the caption on the special finding forms.
We believe, however, that the record reveals an obvious error in the written
special finding forms for Duran and Sisneros. (People v. Bolin (1998) 18 Cal. 4th 297,
331 [court may disregard technically defective verdict form where jury’s intent to convict
clear and the accused suffered no prejudice].) First, there would be no need for the jury
to make the identical special finding for Vasquez three separate times. Second, nothing
in the record shows that the jury could not reach a decision on the special finding
regarding the use of force or threat of force alleged against Duran and Sisneros in the
information. Had they been unable to reach a consensus on the special finding as to those
two defendants, the jury undoubtedly would have informed the court in accordance with
the court’s instructions. (People v. Sanchez (2001) 26 Cal. 4th 834, 852 [“Jurors are
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presumed able to understand and correlate instructions and are further presumed to have
followed the court’s instructions”].)
While deliberating, the jury also posed a question to the court about the count 5
verdict and special finding forms. It asked why there were two verdict forms for count 5.
The court explained, “You should find in your packets verdict forms for all three
defendants for Count 5, two of them. One is styled the verdict form and one is styled a
special finding form. The verdict form is the form you use in determining whether the
evidence shows beyond a reasonable doubt that any or all of the defendants are guilty of
the crime charged in Count 5, which is intimidating a witness. . . .[¶] If you find any of
the defendants guilty of the crime charged in Count 5, only then do you have to
determine whether the special finding applies.” (Emphasis added.)
The court’s response to the jury’s question makes clear that one verdict form and
one special finding form applied to each defendant, and not, as Duran and Sisneros argue,
that one verdict form applied to each defendant and three special finding forms applied to
Vasquez.
The jury, moreover, orally confirmed its decision on the count 5 special findings
in court. After reading the guilty verdicts on count 5 as to each defendant, the court read
the jury’s special findings attached to that count and asked the jury foreperson to orally
confirm the findings. The following exchange took place between the court and the jury
foreperson:
“THE COURT: It is a special finding. [¶] Count 5, the guilty verdict for
dissuading a witness with a special finding now for Count 5 that it was malicious and
done with force or violence or the threat of force or violence, the special finding as to Mr.
Vasquez is true, dated the 24th signed by the foreperson. [¶] Is that special finding the
special finding of the entire jury?
“JUROR NO. 6 [FOREPERSON]: Yes.
17
“THE COURT: The same special finding regarding Mr. Duran, true, dated the
24th signed by the foreperson. [¶] Is that the special finding of the entire jury?
“JUROR NO. 6 [FOREPERSON]: Yes.
“THE COURT: And the same for Mr. Sisneros, Count 5, special finding, it is true,
dated the 24th and signed by the foreperson. [¶] Is that the special finding of the entire
jury?
“JUROR NO. 6 [FOREPERSON]: Yes.”
After the verdicts and special findings were read, each juror individually confirmed that
the court had correctly read the jury’s verdicts and special findings.
Duran and Sisneros’ argument that the jury’s oral confirmation does not provide
clarity on the jury’s true intent regarding the special finding is without merit. It is
irrelevant that the judge who presided over taking the jury’s verdicts was not the judge
who presided over the trial. Duran and Sisneros’ counsel, moreover, agreed that the
substitute judge need not read each verdict or special finding form verbatim. The court
specifically asked whether it could, for each count, read one verdict or special finding
form and then characterize the remaining forms to identify what was happening by count,
charge, and verdict. All counsel acquiesced in the court’s proposed procedure.
On this record, we conclude that the jury’s intent to find the count 5 special
finding true for each defendant unmistakable. Duran and Sisneros, thus, did not receive
an unauthorized life sentence for dissuading a witness by force or threat of force
convictions.
II
Ineffective Assistance of Counsel
Duran and Sisneros next contend that their counsel was ineffective for failing to
object to the life sentence imposed for their count 5 witness dissuasion convictions
because, in their view, the jury did not find the attached force or threat of force special
18
finding true. Defendants specifically argue that their counsel should have raised a
Cunningham/Blakely/Apprendi objection to the indeterminate life term imposed for count
5. (Cunningham v. California (2007) 549 U.S. 270, 274-275 [166 L. Ed. 2d 856]; Blakely
v. Washington (2004) 542 U.S. 296, 303-304 [159 L. Ed. 2d 403]; Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 [147 L. Ed. 2d 435] [any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt].)
In light of our contrary conclusion that the jury did in fact find the special finding
true as to both Duran and Sisneros, their counsel was not ineffective for failing to object
to the sentences imposed on that basis. (People v. Ferraez (2003) 112 Cal. App. 4th 925,
934 [trial counsel has no duty to raise an unmeritorious or futile objection].) No doubt
counsel did not object to the sentence because each understood that the jury had, in fact,
convicted their clients of dissuading a witness by force or threat of force or violence as
we have concluded above. We therefore reject their ineffective assistance of counsel
claims.
III
Substantial Evidence Supports Defendants’ Section 136.1 Convictions
Defendants Sisneros and Duran contend insufficient evidence supports their
convictions for using force or the threat of force or violence to dissuade Cushing from
reporting the assault on Fordyce to authorities. They claim they neither directly used or
threatened to use force against Cushing to stop him from reporting the crimes, nor aided
or abetted Vasquez in doing so.
When considering a sufficiency of the evidence challenge, we must “ ‘ “review the
whole record in the light most favorable to the judgment to determine whether it contains
substantial evidence--i.e., evidence that is credible and of solid value--from which a
rational trier of fact could have found the defendant guilty beyond a reasonable
19
doubt.” ’ ” (People v. Hill (1998) 17 Cal. 4th 800, 848-849 (Hill).) We may not reweigh
the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa
(1993) 6 Cal. 4th 1199, 1206.) “[O]ur opinion that the evidence could reasonably be
reconciled with a finding of innocence or a lesser degree of crime does not warrant a
reversal of the judgment.” (Hill at p. 849.) Reversal for insufficient evidence is
warranted only where it clearly appears that upon no hypothesis whatever is there
sufficient evidence to support a conviction. (People v. Bolin (1998) 18 Cal. 4th 297, 331;
People v. Massie (2006) 142 Cal. App. 4th 365, 371 (Massie).)
Section 136.1 prohibits someone from dissuading or attempting to dissuade a
witness or victim from reporting a crime, or from attending or testifying at trial. (§ 136.1,
subds. (a)-(b).) Where such conduct is accompanied by force or an express or implied
threat of force or violence, the violation is a felony. (§ 136.1, subd. (c)(1).)
To prove defendants guilty of violating section 136.1, subdivision (c)(1), the
People had to establish: (1) defendants knowingly and maliciously tried to prevent or
discourage Cushing from reporting to law enforcement that Fordyce was a crime victim,
or (2) defendants knowingly and maliciously tried to prevent or discourage Cushing from
causing or seeking the arrest of someone in connection with the crimes against Fordyce;
(3) Cushing was a witness or crime victim; and (4) defendants used force or threatened,
either directly or indirectly, to use force or violence on the person or property of a
witness or any other person. (§ 136.1, subds. (a)-(c).)
The record contains ample evidence supporting each of the defendants’
convictions for violating section 136.1, subdivision (c). Evidence at trial showed the
following: While defendants were beating Fordyce, one of them noticed Cushing on the
phone and yelled out to alert the others that Cushing was likely calling the police. All
three defendants immediately got into Duran’s car and sped across the parking lot to
where Cushing and Lozano were standing. Vasquez jumped out of the car, and using
20
derogatory and threatening language, asked Cushing if he was calling the police.
Vasquez threatened to shoot Cushing and intimated he had a weapon in his waistband.
At the same time, Duran and Sisneros also got out of the car. While Vasquez
threatened to shoot Cushing, Duran and Sisneros charged at Cushing and began chasing
him. Having just witnessed all three men attacking Fordyce, Cushing fled for safety.
After Duran and Sisneros gave up chasing Cushing, they turned their attention to Lozano,
who happened to be standing with Cushing when he was calling the police. Both Duran
and Sisneros viciously attacked Lozano, kicking and punching him in the head and chest.
It is undisputed that Cushing witnessed defendants attacking Fordyce. By
immediately getting in their car after noticing Cushing on the phone, racing towards
Cushing in their vehicle, and jumping out to confront Cushing, the jury reasonably could
have found that defendants were trying to stop Cushing from reporting the crime.
Vasquez’s verbal threats to shoot Cushing for calling the police clearly qualify as
an express threat of force or violence. And, the jury reasonably could have determined
that Duran and Sisneros’ actions of chasing Cushing while he was on the phone
constituted an express or implied threat to use force or violence to stop Cushing from
calling the police.
Duran and Sisneros cite their acquittals of making terrorist threats under section
422 as additional proof that there is insufficient evidence to support their dissuading a
witness by force convictions. Section 422 requires a verbal or written statement
threatening to commit a crime resulting in death or serious bodily injury, however.
(§ 422, subd. (a).) Section 136.1, subdivision (c)(1), by contrast, requires no such verbal
or written statement. (§ 136.1, subd. (c)(1).) Duran and Sisneros’ conduct of chasing
Cushing, even though nonverbal, sufficiently conveys an implied threat of force or
violence for purposes of section 136.1, subdivision (c)(1), especially when their cohort
was verbally threatening to shoot Cushing.
21
The fact that Duran was acquitted of assaulting Cushing with a deadly weapon--
his car--is also not persuasive. The jury could have reasonably found Duran impliedly
threatened to use force or violence against Cushing to stop him from reporting the crime
based on Duran’s actions of jumping out of the car and chasing Cushing while he was on
the phone.
Similarly, Duran and Sisneros’ reliance on People v. Leon (2008) 161 Cal. App. 4th
149 (Leon), for the proposition that witness intimidation is not a natural and probable
consequence of robbery, or to show that they did not aid and abet Vasquez in verbally
threatening Cushing is unavailing. Sufficient evidence shows both Duran and Sisneros
chased after Cushing, which actions carry an implicit threat of violence or force under the
circumstances. Reversal of the dissuading a witness convictions under section 136.1,
subdivision (c)(1) is therefore unwarranted.
IV
Motion to Dismiss Jury Panel
Defendants contend the court erred in failing to dismiss the entire jury venire
based on one prospective juror’s abbreviated statement during voir dire. The statement
occurred during the following exchange with Duran’s counsel: “Now, also you indicated
in your questionnaire about this, right, that you believe that the defendant’s [sic] have
prior juvenile records, and they’re linked with gang activity, and this has something to do
about and [sic] Ipod; is that right? Now, what makes you believe that any of this is [sic]
young people?” The prospective juror responded, “Well, I looked up yesterday and I--.”
Vasquez’s counsel interrupted the exchange with an objection, which the court sustained,
and the potential juror was not permitted to finish her statement.
Outside the presence of the jury panel, Vasquez’s counsel moved to dismiss the
entire jury venire, claiming defendants could not receive a fair trial after the prospective
juror’s unfinished statement. In denying the motion, the court found that the statement
22
did not poison or taint the entire jury panel. But the court ultimately dismissed the
prospective juror for cause for conducting research in the matter, however.
On appeal, defendants argue the entire jury panel was tainted after the prospective
juror’s comment implied each of the defendants had prior juvenile records or arrests
when in fact Sisneros, unlike Duran and Vasquez, did not. They argue the jurors
eventually sworn to try the case would have mistakenly believed Sisneros had
undisclosed priors like his codefendants, which likely would have affected their
deliberations. The failure to dismiss the panel, they contend, thus denied them due
process and a fair trial requiring reversal of their convictions.
“[T]rial court[s] possess[] broad discretion to determine whether or not possible
bias or prejudice against the defendant has contaminated the entire venire to such an
extreme that its discharge is required.” (People v. Medina (1990) 51 Cal. 3d 870, 889
(Medina); People v. Martinez (1991) 228 Cal. App. 3d 1456, 1466-1467 [trial court’s
conclusion concerning jury bias and prejudice reviewed for abuse of discretion on
appeal].) Dismissing an entire jury venire is a “drastic remedy” and is not appropriate as
a matter of course merely because a prospective juror may have made some inflammatory
remarks. (Ibid.) “[D]ischarging the entire venire is a remedy that should be reserved for
the most serious occasions of demonstrated bias or prejudice, where interrogation and
removal of the offending venire persons would be insufficient protection for the
defendant.” (Ibid.)
Several cases illustrate the relatively high showing of bias or prejudice necessary
before dismissal of an entire jury panel is warranted. In Medina, at least five prospective
jurors, who did not end up serving on the jury, made statements that other venire persons
heard such as “ ‘in frontier justice style,’ the authorities should ‘bring the guilty S.O.B.
in, we’ll give him a trial, and then hang him[,]’ ” and “ ‘even his own lawyers think he’s
guilty.’ ” (Medina, supra, 51 Cal.3d at p. 888.) The Supreme Court found the trial court
23
did not err in refusing to dismiss the entire jury panel based on the inflammatory
statements of those potential jurors. (Id. at p. 889.)
Similarly, in People v. Vernon (1979) 89 Cal. App. 3d 853, 865 (Vernon), this court
held that a defendant was not denied a fair trial nor was a mistrial necessary after a
prospective juror stated during voir dire that the defendant had previously been tried for
raping her niece. And in People v. Nguyen (1994) 23 Cal. App. 4th 32, 40-41 (Nguyen),
dismissal of the entire panel was unwarranted after a prospective juror of Vietnamese
descent said he feared retaliation from the Vietnamese community if he served as a juror
in the case because the defendant was also Vietnamese.
Like in Medina, Vernon, and Nguyen, defendants fall far short of satisfying the
exacting standard for dismissing an entire jury panel. Based on the totality of the
circumstances, we cannot say that the trial court abused its discretion in concluding that
the prospective juror’s single, incomplete comment that she “looked up” something about
the defendants rises to the level of prejudice necessary to dismiss the jury venire in its
entirety.
Notably, after Duran’s counsel questioned the prospective juror on her jury
questionnaire answers, Vasquez’s counsel specifically asked whether anyone else had
conducted outside research on the matter. Implicit in the panel members’ response is that
no one had conducted such research. Vasquez’s counsel also asked whether
“[e]verybody has basically an open mind? Is that yes?” The panel responded
affirmatively.
Each person who did eventually serve on the jury thus affirmed his or her ability
to be fair and impartial by keeping an open mind when considering the case. And the
offending potential juror was dismissed and did not serve on defendants’ jury.
Under these circumstances, the trial court was rightly satisfied that no injustice
had resulted or would result from the lone, incomplete statement. No abuse of discretion
occurred in refusing to dismiss the entire jury panel.
24
V
Section 654
Defendants contend that they robbed Fordyce and dissuaded Cushing from
reporting the crime during a single course of conduct for which they may only be
punished once under section 654. The trial court, however, imposed separate sentences
for both the count 2 robbery conviction and the count 5 dissuading a witness conviction.
Finding the trial court properly sentenced defendants on both convictions, we reject
defendants’ section 654 challenge.
Section 654 provides in pertinent part: “(a) An act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) The statute
does not prohibit multiple convictions for the same conduct, only multiple punishments.
(People v. Monarrez (1998) 66 Cal. App. 4th 710, 713.) “In such a case, the proper
procedure is to stay execution of sentence on one of the offenses.” (Ibid.)
In any section 654 inquiry, the court must initially ascertain the defendant’s
objective and intent. (People v. Porter (1987) 194 Cal. App. 3d 34, 38 (Porter).) “If he
entertained multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for independent violations committed in
pursuit of each objective even though the violations shared common acts or were parts of
an otherwise indivisible course of conduct.” (Ibid.) “Whether the defendant maintained
multiple criminal objectives is determined from all the circumstances and is primarily a
question of fact for the trial court, whose finding will be upheld on appeal if there is any
substantial evidence to support it.” (Ibid.)
The record in this case supports the trial court’s implicit finding that robbing
Fordyce and dissuading Cushing from reporting the crime involved multiple objectives
25
even though they may have shared common acts or were otherwise parts of an indivisible
course of conduct. The court reasonably could have inferred that defendants initially
planned only to rob Fordyce while he sat alone in his car, but thereafter came up with a
new idea: stopping Cushing from reporting the crime he had just witnessed to avoid
detection or arrest. Similar conduct has been found separately punishable under section
654. (See People v. Nichols (1994) 29 Cal. App. 4th 1651, 1654, 1657 [sufficient
evidence of two separate objectives--one for robbery and one for avoiding detection or
dissuading a witness--existed where defendant kidnapped a victim and later told the
victim that he knew where he lived and would kill him if he opened his mouth]; People v.
McGahuey (1981) 121 Cal. App. 3d 524, 529 [defendant properly convicted and sentenced
for residential burglary and assault with a deadly weapon after throwing a hatchet at the
victim to stop him from calling the police after the victim discovered defendant
burglarizing his home].)
The decision in Porter is instructive. There, the victim was getting into his car
when the appellant jumped into the vehicle while brandishing a knife. (Porter, supra,
194 Cal.App.3d at p. 36.) The appellant’s accomplice got in and rifled through the
victim’s wallet. (Ibid.) After finding less than $10, the appellant ordered the victim to
drive to a bank to withdraw additional money from an ATM machine, which was
unsuccessful. (Id. at pp. 36-37.) The appellant was ultimately convicted of robbing the
victim and kidnapping for the purpose of robbery. (Ibid.) The court upheld his
punishments for both crimes, rejecting the appellant’s argument that section 654
precluded double punishment since appellant had a single objective of robbing the victim.
(Id. at pp. 37-38.) “What began as an ordinary robbery turned into something new and
qualitatively very different. No longer satisfied with simply taking the contents of the
victim’s wallet, appellant decided to forcibly compel the victim to drive numerous city
blocks to a bank where, only with the victim’s compelled assistance, could appellant
achieve a greater reward.” (Id. at pp. 38-39.)
26
This is what occurred here. No longer satisfied with simply robbing Fordyce of
his property, defendants decided to forcibly dissuade Cushing from calling law
enforcement. All three raced through the parking lot in Duran’s car directly at Cushing,
and jumped out of the car. Vasquez threatened to shoot Cushing and Duran and Sisneros
chased after him while he was on the phone with the 911 dispatcher. These actions were
qualitatively different than taking Fordyce’s property while he was seated in his car.
The trial court did not violate section 654 by imposing sentences on defendants for
both their robbery and dissuading a witness by force convictions.
VI
Evidence Code Section 352
Defendants contend the trial court erred in failing to exclude evidence of Duran’s
juvenile robbery adjudication as more prejudicial than probative under Evidence Code
section 352. Admitting the evidence, they argue, violated defendants’ constitutional
rights to due process by denying them a fundamentally fair trial.
Over defendants’ objections, the trial court admitted evidence that Duran suffered
a robbery adjudication in 2006 when he was a minor. Detective Sample testified, based
on information he obtained from the investigating officers, that a rival gang member
escaped from a home after being held for two days by a group of Norteno gang members,
including Duran, who tied him up, beat him, and demanded his ATM card so that they
could withdraw money from his account to bail another jailed Norteno gang member out
of jail. Duran was arrested at the home where the rival gang member had been held; he
was wearing red clothing. The house contained Norteno gang graffiti. At the time, he
told officers he only hung with Nortenos gang members.
Although Detective Sample acknowledged that no gang allegations were included
in the robbery adjudication, in his opinion, the juvenile adjudication evidence showed
Duran was a Norteno gang member that engaged in gang activities.
27
Based on Detective Sample’s testimony, defendants moved for a mistrial, arguing
the evidence was highly inflammatory and exceeded the court’s pre-set parameters for
admitting such evidence. The court denied the motion, finding the evidence more
probative than prejudicial under Evidence Code section 352.
Evidence Code section 352 allows a court “in its discretion, [to] exclude evidence
if its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The
prejudice referred to in section 352 is not the prejudice to a defendant that naturally flows
from probative evidence tending to demonstrate guilt of a charged offense, but rather the
prejudice resulting from “ ‘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.)
Trial courts exercise discretion in determining the admissibility of evidence under
Evidence Code section 352. (People v. Ochoa (2001) 26 Cal. 4th 398, 437, disapproved
on other grounds in People v. Prieto (2003) 30 Cal. 4th 226, 263, fn.14.) Reversal is
warranted only when “ ‘ “the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (Id. at
pp. 437-438.)
Duran first argues that the court never weighed the probative value of the juvenile
adjudication evidence against the probability that it was unduly prejudicial under
Evidence Code section 352. He also claims the court failed to conduct a similar analysis
before it denied Duran’s mistrial motion based on Detective Sample’s description of the
juvenile adjudication and its underlying factual basis. The court’s purported failure to
engage in these weighing processes, he contends, constitutes an abuse of discretion.
28
The record, however, belies defendants’ contention. Prior to trial, Duran moved in
limine to exclude the evidence under Evidence Code section 352. Duran specifically
argued that “Cal[ifornia] Evidence Code [section] 352 requires the court to balance the
relevance of any evidence with its potential for prejudice and undue consumption of time.
Given the limited relevance of this material [Duran’s juvenile adjudication], the fact that
it will prejudice the jury and would have to be proven in a ‘mini-trial’ the court should
exclude it under Evidence Code section 352.”
Citing Evidence Code section 352, the court ruled the evidence was too prejudicial
to be admitted for the purpose of establishing a predicate offense under the gang statute,
but that it could be admitted as a basis of the gang expert’s opinion that Duran was a
Norteno gang member who engaged in gang activity. This shows the court was well
aware of its duty to weigh the probative value of the evidence against its potential for
undue prejudice before admitting it.
Before Detective Sample testified, Duran’s counsel raised the juvenile
adjudication issue again, seeking to clarify the parameters of the expert’s testimony. The
court explained that Detective Sample could testify to the robbery adjudication and the
facts relating the offense to gang behavior. The court overruled several defense
objections while Detective Sample was testifying about the matter, stating he would
allow the testimony because it was “coming in for a limited purpose.”
That the court did not expressly cite Evidence Code section 352 in overruling the
trial objections is of no moment. It is well settled that court need not “expressly state for
the record it engages in a weighing process every time it makes a ruling” as long as the
record as a whole reflects the court was aware of and consistently performed such duty
under section 352. (People v. Carpenter (1999) 21 Cal. 4th 1016, 1053.) Here, the record
as a whole demonstrates the court examined the evidence under section 352. The court
was under no obligation to restate that it was reweighing the probative and prejudicial
29
value of the evidence when it subsequently considered and overruled defendants’
objections during trial.
Having concluded that the court did weigh the evidence under Evidence Code
section 352, we next consider whether the court abused its discretion in admitting the
evidence for the limited purpose of expert opinion basis evidence. Duran contends the
evidence was inflammatory and cumulative regarding an issue not reasonably subject to
dispute--that he was a Norteno criminal street gang member. He further contends the
evidence was of low probative value since the prior crime was not charged as a gang
crime when committed. And, he argues the jury could have believed he was inadequately
punished for the juvenile offense, thus making it more likely the jury convicted him to
make up for the previous inadequate punishment. Sisneros raises similar contentions.
We find no abuse of discretion here. The evidence had substantial probative value
regarding Duran’s Norteno membership as well as his knowledge of the primary
activities of Norteno gang members.
In prosecutions for active participation in a criminal street gang, like the one here,
“the probative value of evidence of a defendant’s gang-related separate offense generally
is greater because it provides direct proof of several ultimate facts necessary to a
conviction.” (People v. Tran (2011) 51 Cal. 4th 1040, 1048 (Tran).) Evidence that a
defendant committed a gang-related offense on a separate occasion “provides direct
evidence of a predicate offense, that the defendant actively participated in the criminal
street gang, and that the defendant knew the gang engaged in a pattern of criminal gang
activity.” (Ibid.) Evidence of a defendant’s prior gang affiliation, moreover, can “help
prove identity, motive, modus operandi, specific intent, means of applying force or fear,
or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004)
33 Cal. 4th 1040, 1049 (Hernandez) [gang evidence relevant to fear, motive and intent];
see also People v. Mendoza (2000) 24 Cal. 4th 130, 178 [element of fear]; People v.
Williams (1997) 16 Cal. 4th 153, 193 [motive and identity].)
30
Here, Duran’s juvenile adjudication and the facts underlying the adjudication
tended to prove defendant’s knowledge and active participation for purposes of the gang
statutes. (§186.22, subd. (a) [“Any person who actively participates in any criminal street
gang with knowledge that its members engage in or have engaged in a pattern of criminal
gang activity . . .”].) At the time of the juvenile incident, Duran was arrested with several
other Norteno gang members. He told investigators that he only hung out with Norteno
gang members. He was arrested wearing red clothing associated with the Norteno street
gang while in a residence containing Norteno gang graffiti. The investigation further
revealed that the motive for the crime was to obtain money to bail out a fellow Norteno
gang member who had recently been arrested. Such evidence was thus highly probative
given the substantive offenses and the attached enhancements in this case.
We also conclude that the evidence was not particularly inflammatory compared
with the charged offenses. The juvenile adjudication involved a robbery and assault, the
same crimes charged in this case. In each case the victims were threatened with death.
Duran’s juvenile adjudication involved a firearm and Vasquez threatened to shoot
Lozano and Cushing for calling the police, intimating he had a gun in his waistband.
Duran was carrying a knife when arrested. And, while both the charged crimes and
Duran’s juvenile adjudication involved weapons, no evidence showed the weapons were
ever used against the victims. (Tran, supra, 51 Cal.4th at p. 1050 [evidence that shots
were fired during defendant’s prior extortion offense, which was offered to prove a
predicate offense under the gang statute, was not unduly inflammatory where no evidence
showed anyone was killed or injured or that defendant personally shot at or threatened
anyone].)
People v. Harris (1998) 60 Cal. App. 4th 727, 738 (Harris), provides useful
guidance on when prior acts evidence is too inflammatory to be admissible. There, the
defendant, a caregiver in a mental hospital, was charged with sexually assaulting two
patients by licking and fondling them. (Ibid.) Both women were on speaking terms with
31
the defendant after the assaults. (Ibid.) The court admitted evidence that the defendant
had been convicted of burglary with infliction of great bodily injury 23 years earlier. (Id.
at pp. 738-739.) In describing the incident, the jury heard testimony of a viciously beaten
and bloody victim who was a stranger to the defendant. (Ibid.)
This court found that the prior acts evidence was inflammatory in the extreme.
(Harris, supra, 60 Cal.App.4th at p. 738.) The charged crimes, involving a breach of
trust and the taking advantage of two emotionally and physically vulnerable women were
of a significantly different nature and quality than the violent and perverse attack on a
stranger that was described to the jury. (Ibid.)
Here, by contrast, Duran’s juvenile robbery adjudication was not significantly
different in nature or quality than the attacks on Fordyce and Lozano. And, unlike in
Harris, where the prior offense was extremely remote--occurring 23 years before the
charged offenses--the juvenile adjudication occurred only four years prior.
We also reject Duran’s contention that the evidence likely swayed the jury to
convict defendants because jurors believed Duran had somehow been inadequately
punished for the juvenile offense. The fact that Duran had already had a juvenile petition
sustained for his involvement in the robbery and had been punished for his conduct made
the evidence less, rather than more, inflammatory. (Hernandez, supra, 33 Cal.4th at
p. 1051 [gang evidence admitted to prove gang enhancement not inflammatory since it
was not evidence of offenses for which a defendant might have escaped punishment];
Tran, supra, 51 Cal.4th at p. 1050 [“because defendant stood convicted of the [prior]
extortion, there was little danger of confusing the issues by requiring the jury to
determine if defendant was guilty of both the charged offenses and the extortion, and no
risk the jury might convict defendant to prevent him from escaping punishment for the
extortion”].)
Finally, the trial court instructed the jury that it could not consider evidence of
gang activity for the purpose of concluding that defendant was a person of bad character
32
or someone that had a criminal disposition. (Tran, supra, 51 Cal.4th at p. 1050 [citing
similar limiting instruction as one reason for concluding that evidence of a defendant’s
prior gang-related conviction was not more prejudicial than probative under Evidence
Code section 352].) We presume the jury followed these instructions. (People v.
Lindberg (2008) 45 Cal. 4th 1, 25-26 (Lindberg).)
Evidence of Duran’s past robbery adjudication had a tendency to prove he had
knowledge of and engaged in one of the primary activities of the Norteno street gang--
robbery. (Tran, supra, 51 Cal.4th at p. 1048 [evidence defendant committed a gang-
related offense on separate occasion provides direct evidence of a predicate offense,
active gang participation, and knowledge of a pattern of criminal gang activity]; People v.
Sengpadychith (2001) 26 Cal. 4th 316, 323, as modified (Oct. 17, 2001) [evidence of past
offenses has some tendency in reason to show a group’s primary activity].) It also tended
to prove he was a Norteno gang member. The trial court, therefore, properly exercised its
discretion in admitting the evidence surrounding Duran’s juvenile robbery adjudication.
Because no error occurred, we reject defendants’ contention that the admission of
this evidence violated defendants’ constitutional rights to a fair trial. (Lindberg, supra,
45 Cal.4th at p. 26 [“[a]pplication of the ordinary rules of evidence generally does not
impermissibly infringe on a capital defendant’s constitutional rights”].) This case is not
like People v. Albarran (2007) 149 Cal. App. 4th 214, 230-232 (Albarran), where the
court found a federal constitutional violation because the gang evidence was highly
prejudicial but only marginally relevant. Albarran was “one of those rare and unusual
occasions where the admission of evidence ha[d] violated federal due process and
rendered the defendant’s trial fundamentally unfair.” (Albarran at p. 232.) That is not
the case here where the challenged evidence was highly relevant to the substantive gang
offense and the multiple gang enhancements.
33
VII
Sixth Amendment Confrontation Clause
Defendants also contend the court erred in allowing Detective Sample to testify to
out-of-court statements about Duran’s juvenile robbery adjudication because such
evidence violated their rights to confront the witnesses against them under the Sixth
Amendment to the United States Constitution. Detective Sample based his testimony on
discussions with the officers who investigated the juvenile adjudication case and its
underlying circumstances. It is this basis evidence, which was not independently
admitted and which was derived from declarants who were not subjected to cross-
examination, that defendants challenge on confrontation grounds.
Binding precedent requires us to find no confrontation clause violation. (People v.
Gardeley (1996) 14 Cal. 4th 605, 618-619 (Gardeley).) But even if a violation occurred,
we conclude it was harmless beyond a reasonable doubt. (People v. Lopez (2012)
55 Cal. 4th 569, 585 (Lopez) [beyond a reasonable doubt standard of error applies to
violations of Sixth Amendment confrontation right].)
The Sixth Amendment guarantees a criminal defendant the right “to be confronted
with the witnesses against him.” (U.S. Const., 6th Amend.) In Crawford v. Washington
(2004) 541 U.S. 36 [158 L. Ed. 2d 177] (Crawford ), the Supreme Court held 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.” (Id. at pp. 53-54.) Crawford, however, did not
comprehensively define “testimonial.” (Id. at p. 68.) Rather, the court declared that,
“[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations”
(ibid.), which, under the facts of the case, included recorded statements by a witness in
34
response to structured police questioning. (People v. Cage (2007) 40 Cal. 4th 965, 978
[explaining Crawford].)
Crawford also made clear that the confrontation clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Crawford, supra, 541 U.S. at p. 59, fn. 9 [citing Tennessee v. Street (1985)
471 U.S. 409, 413-414 [85 L. Ed. 2d 425] [respondent’s rights under the confrontation
clause were not violated when an accomplice’s out-of-court confession was introduced
for the nonhearsay purpose of rebutting respondent’s testimony that his own confession
was coercively derived from the accomplice’s statement].) Given the purpose of the
basis evidence in this case, Detective Sample’s testimony does not come within
Crawford’s protections.
Evidence Code section 801 limits expert testimony to an opinion that is “[b]ased
on matter . . . perceived by or personally known to the witness or made known to [the
witness] at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which [the expert] testimony relates . . . .” (Evid. Code, § 801, subd. (b).) An expert may
base his opinion on material that is not admitted into evidence if the material is of a type
that is reasonably relied upon by experts in the particular field in forming their opinions
and so long as the material is reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) In
forming their opinions about gangs, experts routinely rely on information obtained by
talking to gang members as well as from information contained in investigative reports
prepared by other officers. (See e.g., People v. Gonzalez (2006) 38 Cal. 4th 932, 948-949
(Gonzalez) [gang expert’s overall opinion is typically based on information drawn from
many sources and on years of experience, including interviews with gang members,
which in sum is reliable]; People v. Gamez (1991) 235 Cal. App. 3d 957, 966 (Gamez)
[police officers testifying as gang experts properly based their testimony on “personal
observations of and discussions with gang members as well as information from other
35
officers and the department’s files”], disapproved on other grounds in Gardeley, supra,
14 Cal.4th at p. 624, fn.10.)
In Gardeley, our Supreme Court said that hearsay statements testified to by a gang
expert as a basis for his or her expert opinion are not offered for their truth but instead are
offered merely to evaluate the expert’s opinion. (Gardeley, supra, 14 Cal.4th at pp. 618-
619.) Thus, even if testimonial, admitting the statements would not violate the
confrontation clause. That decision binds us. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal. 2d 450, 455 (Auto Equity) [“Courts exercising inferior jurisdiction must
accept the law declared by courts of superior jurisdiction”]; see also People v. Hill (2011)
191 Cal. App. 4th 1104, 1131 (Hill II) [“we must follow Gardeley and the other California
Supreme Court cases in the same line of authority”].)
Under Gardeley, the trial court properly concluded that the challenged basis
evidence related by Detective Sample concerning Duran’s juvenile robbery adjudication
was not offered for its truth but only to evaluate Detective Sample’s opinion. Its
admission thus did not violate the hearsay rule or the confrontation clause.
While bound by Gardeley, we recognize that some courts have questioned the
premise that out-of-court statements upon which an expert’s opinion is based are not
offered for their truth. (See e.g., Hill II, supra, 191 Cal.App.4th at pp. 1129-1130.) In
Hill II, for example, the court observed that Gardeley was based on an “implied
assumption that the out-of-court statements may help the jury evaluate the expert’s
opinion without regard to the truth of the statements. Otherwise, the conclusion that the
statements should remain free of Crawford review because they are not admitted for their
truth is nonsensical.” (Ibid.; italics added.) The court noted, however, that that
“assumption appears to be incorrect.” (Ibid.) In the court’s view, the only way the jury
could properly evaluate the expert’s opinion was to assume the truth or falsity of the out-
of-court statement. (Id. at p. 1131 [“where basis evidence consists of an out-of-court
36
statement, the jury will often be required to determine or assume the truth of the
statement in order to utilize it to evaluate the expert’s opinion”].)
Recently, two divisions in the Fourth District came to opposite conclusions on the
issue. The Supreme Court has granted review in both cases. (See People v. Sanchez,
Supreme Court (review granted May 14, 2014, S216681) [admission of nontestifying
police officers’ statements that defendant admitted to gang association did not violate
confrontation clause]; and People v. Archuleta, Supreme Court (review granted June 11,
2014, S218640) [fellow gang member’s statement that defendant had directed a robbery
was offered for its truth and was testimonial for confrontation clause purposes, but
admission was harmless beyond a reasonable doubt].) Until the Supreme Court decides
otherwise, Gardeley compels us to conclude that no confrontation clause violation
occurred because the out-of-court statements concerning Duran’s juvenile adjudication
upon which Detective Sample based his opinion were not offered for their truth, but
rather to aid the jury in evaluating the validity of Detective Sample’s expert opinion.
(Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
Citing Williams v. Illinois (2012) [183 L. Ed. 2d 89] (Williams), defendants argue
that the Gardeley rule that expert opinion basis evidence is not offered for its truth is no
longer valid. Based on statements in the dissent and concurrence in Williams, defendants
claim a majority of the United States Supreme Court has now found that expert opinion
basis evidence is offered for its truth and thus subject to confrontation clause scrutiny.
Although the Williams plurality concluded expert basis testimony does not violate
Crawford because it is not admitted for its truth (Williams, supra, 183 L. Ed. 2d 98-99,
106, plur. opn.), both Justice Thomas’s concurrence and the four Williams dissenters
rejected that analysis, concluding this kind of evidence is admitted for its truth. (Id. at
pp.129-130, conc. opn. of Thomas, J.; pp. 142-147, dis. opn. of Kagan, J.)
The People, on the other hand, argue that the dissent in Williams holds no
precedential value and is not binding. (Lopez, supra, 55 Cal.4th at p. 585 [“dissenting
37
opinions are not binding precedent”].) They allege the dissent’s view cannot be
combined with Justice Thomas’s concurrence to cobble together precedent because doing
so would be contrary to the result and judgment in the case, which found no confrontation
clause violation. (See Rappa v. New Castle County (3d Cir. 1994) 18 F.3d 1043, 1060,
fn. 25 [finding that a view taken by a majority of concurring and dissenting Justices could
not have precedential value, “as the precedential meaning would then be inconsistent
with the result in that case”]; see also Lopez, supra, 55 Cal.4th at p. 590, dis. opn. of Liu,
J. [“The United States Supreme Court’s most recent decision in this area [Williams]
produced no authoritative guidance beyond the result reached on the particular facts of
that case”].)
We need not decide whether the rule announced in Gardeley has been implicitly
overruled, however. Even if we assume without deciding that evidence of Duran’s
robbery adjudication constituted “testimonial” evidence effectively offered for its truth in
violation of the confrontation clause, admitting the evidence through Detective Sample as
one of several bases for his opinions was harmless. (Chapman v. California (1967)
386 U.S. 18, 24 [17 L. Ed. 2d 705] (Chapman).) We are convinced beyond a reasonable
doubt that the jury would have concluded that defendants were active Norteno gang
members and that the offenses were gang-related even without Detective Sample’s
testimony regarding Duran’s juvenile adjudication. (Lopez, supra, 55 Cal.4th at p. 585.)
Multiple witnesses testified at trial that defendants repeatedly called out “Norte”
or “Nortenos” while attacking Fordyce and Lozano and while intimidating Cushing from
calling the police. Some of these witnesses were familiar with the words, either from
prior gang training they received or from growing up in a gang-infiltrated neighborhood,
and understood the terms to be gang-related.
A red belt consistent with Norteno gang attire was found in Duran’s car when
defendants were pulled over. Defendants were with two other Norteno gang members
when they were arrested. Sisneros admitted to a police investigator that he “hood bangs”
38
with Northerners and characterized himself as a “Northerner from the heights.” Duran
yelled out “Norte” while being interviewed by police, in an apparent attempt to
communicate with one of his cohorts being questioned in an adjoining room. Vasquez
admitted he had a Norteno gang tattoo on his chest. Vasquez had also been contacted
numerous times wearing Norteno gang clothing, and posed in pictures with other Norteno
gang members while throwing Norteno gang signs. Both Duran and Vasquez were
involved in Norteno gang-related incidents in jail while awaiting trial on the current
charges--Vasquez passed a kite with Norteno curriculum and gang structure information
to another inmate and Duran, together with other jailed Norteno gang members, assaulted
a Norteno gang member who wished to disassociate from the gang.
This evidence was more than sufficient to establish defendants’ Norteno gang ties
and that the crimes were gang-related even if one disregards Detective Sample’s
testimony about Duran’s juvenile adjudication. Thus, even if the court erred in admitting
the testimony the error was not prejudicial.
VIII
Hypothetical Questions Regarding Specific Intent
Defendants contend the trial court erred in permitting Detective Sample to opine
about the specific intent of hypothetical gang members who committed crimes similar to
the charged offenses to prove the gang enhancement under section 186.22, subdivision
(b). In defendants’ view, Detective Sample did nothing more than opine on their specific
intent under the guise of the hypothetical. They argue hypothetical questions may not be
used to conceal an expert’s improper testimony on the real defendants’ subjective
knowledge and intent. We disagree. But even if an error occurred, we find it harmless
on this record.
A person with special knowledge, skill, experience, training, or education in a
particular field may testify as an expert witness and give an opinion if the subject matter
39
is sufficiently beyond common experience so that the opinion would assist the trier of
fact. (Evid. Code, §§ 720, 801.) While an expert’s opinion may embrace the ultimate
issue to be decided, it may not encompass matters of common knowledge that jurors
could decide as intelligently as the witness. (Evid. Code, § 805.) It is well settled that
“[t]he subject matter of the culture and habits of criminal street gangs” is sufficiently
beyond common knowledge that expert testimony on such matters is appropriate.
(Gardeley, supra, 14 Cal.4th at p. 617.)
A trial court generally has “broad discretion in deciding whether to admit or
exclude expert testimony . . . .” (People v. McDowell (2012) 54 Cal. 4th 395, 426.) “[I]ts
decision as to whether expert testimony meets the standard for admissibility is subject to
review for abuse of discretion.” (Ibid.)
An expert “may render opinion testimony on the basis of facts given ‘in a
hypothetical question that asks the expert to assume their truth.’ ” (Gardeley, supra,
14 Cal.4th at p. 618.) “Such a hypothetical question must be rooted in facts shown by the
evidence, however.” (Ibid.)
The Supreme Court addressed the use of hypotheticals in the context of expert
gang testimony in People v. Vang (2011) 52 Cal. 4th 1038, 1044-1045 (Vang). There, the
Supreme Court reversed the Court of Appeal’s decision that found the trial court
erroneously permitted the expert to testify that a crime was gang related based on
hypotheticals that closely tracked the evidence presented in the case. (Vang at p. 1044.)
The Court of Appeal had primarily relied on People v. Killebrew (2002)
103 Cal. App. 4th 644, 647 (Killebrew), which involved a gang expert who testified
through hypothetical questions about “the subjective knowledge and intent” of each of 11
occupants in three vehicles. (Killebrew at p. 658.) The Killebrew court held it was error
to admit the expert’s testimony because issues of subjective knowledge and intent were
properly reserved for the trier of fact. (Ibid.) Because the expert’s testimony was the
only evidence offered to establish the elements of the defendant’s alleged conspiracy to
40
possess a handgun, no substantial evidence supported the conviction. (Id. at pp. 660-
661.)
Vang criticized Killibrew’s analysis, pointing out Killibrew’s limited significance
because it “overlooked the critical difference between an expert’s expressing an opinion
in response to a hypothetical question and the expert’s expressing an opinion about the
defendants themselves.” (Vang, supra, 52 Cal.4th at p. 1049.) According to the court,
“ ‘[a] lthough [Killibrew’s] legal discussion states that the expert “informed the jury of
his belief of the suspects’ knowledge and intent on the night in question,” its factual
account states that “[t]hrough the use of hypothetical questions, Darbee [the expert]
testified that each of the individuals in the three cars” had certain knowledge and
intent.’ ” (Id. at p. 1047.)
While the Supreme Court assumed for purposes of its opinion that an expert
testifying about specific defendants was improper, it nonetheless confirmed that an expert
testifying about hypothetical persons was permissible and that such testimony did not
give an opinion on how the jury should decide a case. (Vang, supra, 52 Cal.4th at
pp. 1047-1048, fn. 4.) Thus, contrary to the Court of Appeal, the high court held that the
trial court had properly permitted the expert to testify that a hypothetical assault that
tracked the evidence was a “ ‘gang-motivated’ ” attack. (Id. at p. 1043.)
Like in Vang, the expert here testified about hypothetical gang members and
hypothetical crimes that tracked the evidence presented in the case. Detective Sample did
not testify about the defendants specifically. Thus, he did not offer an opinion on their
specific intent as defendants argue.
Defendants’ contention that Vang did not consider whether an expert could testify
regarding a hypothetical defendant’s specific intent, moreover, appears to conflict with
the Supreme Court’s actual decision. The Supreme Court expressly acknowledged the
Court of Appeal’s reasoning that “ ‘the prosecution may not use a hypothetical question
to conceal an expert’s improper testimony on the real defendants’ subjective knowledge
41
and intent’ ” when it found the trial court had abused its discretion. (Vang, supra,
52 Cal.4th at p. 1044.) Yet, the Supreme Court found the Court of Appeal’s decision
unpersuasive because, again, it did not distinguish between hypothetical persons and
actual defendants. (Id. at p. 1047; see also Hill II, supra, 191 Cal.App.4th at p. 1126
[where a gang expert was properly allowed to testify as to what gang members think and
how they behave, specifically, that a gang member would not go into rival gang territory
except to shoot or kill a rival gang member, and if the intended target is not there anyone
else will do, and killing a police officer sends the ultimate message of gang reputation];
and People v. Olguin (1994) 31 Cal. App. 4th 1355, 1384 [approved expert testimony
focused on what gangs and gang members typically expect and not on the defendant’s
subjective expectation].)
Thus, it appears the Supreme Court did consider the issue presented here, namely,
whether an expert may testify about the knowledge and specific intent of a hypothetical
person. Other cases have implicitly recognized the same. For example, in People v. Rios
(2013) 222 Cal. App. 4th 542 (Rios), the court summarized Vang as follows: “At trial, the
prosecution’s gang expert responded to two hypothetical questions that closely tracked
the evidence in the case . . . [and was asked] (1) whether the assault was committed for
the benefit of, at the direction of, or in association with the gang and (2) whether the
attack was ‘ “gang motivated” ’ (an apparent shorthand reference to the ‘specific intent
to promote, further, or assist in any criminal conduct by gang members’
(§ 186.22(b)(1)).” (Rios at p. 570, italics added.)
But even if Vang cannot be read as having considered that precise issue, and
assuming defendants are correct that an expert may not testify regarding a hypothetical
person’s specific intent, we nevertheless find that any abuse of discretion in allowing
Detective Sample to opine on the specific intent of three hypothetical gang members in
this case was harmless. Erroneously admitting expert testimony requires reversal only if
it is reasonably probable the verdict would have been more favorable to the defendant in
42
the absence of the error. (People v. Prieto, supra, 30 Cal.4th at p. 247; People v. Watson
(1956) 46 Cal. 2d 818, 836].) Given the record, we conclude it was not reasonably
probable the jury would have found the gang enhancements not true had the court
precluded Detective Sample from answering the hypothetical question about the specific
intent of hypothetical gang members.
Even without Detective Sample’s challenged testimony, there was ample evidence
from which the jury could infer defendants’ specific intent for purposes of the gang
enhancement. “ ‘To establish a gang enhancement allegation, “the prosecution must
prove that the crime for which the defendant was convicted had been ‘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.’ ”
[Citation.]’ ” (People v. Miranda (2011) 192 Cal. App. 4th 398, 411 (Miranda).) “There
is rarely direct evidence that a crime was committed for the benefit of a gang. For this
reason, ‘we routinely draw inferences about intent from the predictable results of action.
. . . We can discover mental state only from how people act and what they say.’ ” (Id. at
pp. 411-412.)
“ ‘Commission of a crime in concert with known gang members is substantial
evidence which supports the inference that the defendant acted with the specific intent to
promote, further or assist gang members in the commission of the crime.’ ” (Miranda,
supra, 192 Cal.App.4th at p. 412.) In People v. Morales (2003) 112 Cal. App. 4th 1176,
1179 (Morales), for example, the court found that “evidence that [the] defendant
knowingly committed the charged crimes in association with two fellow gang members
was sufficient to support the jury’s findings on the gang enhancements that (a) the crimes
were ‘committed for the benefit of, at the direction of, or in association with’ a gang, and
(b) [the] defendant committed the crimes ‘with the specific intent to promote, further, or
assist in any criminal conduct by gang members.’ ” (Morales at pp. 1179, 1198 [“very
43
fact that defendant committed the charged crimes in association with fellow gang
members” supports the gang enhancement].)
Here, Detective Sample opined that all three defendants were active Norteno gang
members at the time of the offenses. The other two men with whom defendants were
arrested were also Norteno gang members. Both Vasquez and his brother Luis Vasquez
had gang tattoos. Defendants also repeatedly called out “Norte” during the attacks. Gang
attire was also found in the car when they were apprehended. From this evidence, the
jury reasonably could have inferred that defendants knew the others were gang members
and that they all intended to rob and assault Fordyce, assault Lozano, and dissuade
Cushing from reporting the crimes, and that they all intended to promote or assist one
another in carrying out those crimes. This evidence was sufficient to establish the
specific intent of each defendant under section 186.22, subdivision (b)(1). (Morales,
supra, 112 Cal.App.4th at p. 1198.)
Any purported error in allowing Detective Sample to opine on the specific intent
of hypothetical persons was thus harmless. The outcome would have been the same even
in the absence of such testimony.
IX
Admissibility of Defendants’ Booking Statements About Gang Membership
Police gave standard Miranda warnings to each defendant before individually
interrogating them. (Miranda, supra, 384 U.S. 436.) Despite these Miranda warnings,
defendants now contend the court violated their Fifth Amendment privilege against self-
incrimination by admitting several statements they made to jail classification officers
while being booked into jail following police questioning. Duran admitted he was
affiliated with a gang and listed “Northerner” on the questionnaire form. Sisneros and
Vasquez both denied being gang members, but indicated that they “[hung] with
44
Northerners” on their classification forms. We conclude that even if the court erred in
admitting defendants’ responses to the jail booking questions, the error was harmless.
Under Miranda, “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.” (Miranda, supra, 384 U.S. at p. 444.) An individual is subjected to
“custodial interrogation” whenever law enforcement officers initiate questioning after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. (Ibid.) The Supreme Court later clarified that the definition included not
only express questioning by law enforcement but also its “functional equivalent.”
(Arizona v. Mauro (1987) 481 U.S. 520, 526 [95 L. Ed. 2d 458].)
In Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L. Ed. 2d 297], the Supreme
Court defined the phrase “functional equivalent” of express questioning to include “any
words or actions on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.” (Fns. omitted.) Later, in Pennsylvania v. Muniz (1990)
496 U.S. 582, 601 [110 L. Ed. 2d 528], the Supreme Court recognized a “ ‘routine booking
question’ exception which exempts from Miranda’s coverage questions to secure the
‘biographical data necessary to complete booking or pretrial services.’ ” In that case, the
court found the exception applied to questions asked regarding a defendant’s name,
address, height, weight, eye color, date of birth, and current age. (Ibid.)
Our Supreme Court recently held that asking an individual about his gang
affiliation for jail administrative purposes, particularly for the safety of custodial staff and
inmates, does not come within the purview of the booking exception to Miranda.
(People v. Elizalde (2015) 61 Cal. 4th 523, 527 (Elizalde).) Such questions exceed the
scope of the exception because the questions are reasonably likely to elicit an
incriminating response given California’s criminal gang statutes and a defendant’s
45
pending charges. While officers are permitted to ask these questions for institutional
security purposes, a defendant’s un-Mirandized responses are inadmissible against him
during the People’s case-in-chief. (Ibid.) Thus, under Elizalde, defendants’ responses to
the jail booking questions regarding their gang affiliations were not admissible unless
they were given proper Miranda warnings which they knowingly waived.
According to the People, Duran and Sisneros’ responses to the jail booking
questions were admissible because they were Mirandized prior to being interrogated by
police and they each waived their Miranda rights before speaking with investigators. The
People do not specifically address whether the same reasoning applies to Vasquez’s
responses to the jail classification questions. The trial court had previously ruled that
Vasquez’s taped police interview was inadmissible because he had invoked his right to
counsel prior to being questioned.
Defendants, on the other hand, contend the initial Miranda warnings did not
extend to the later jail booking questions and answers. In other words, police were
required to readvise them of their Miranda rights before asking them the jail
classification questions regarding gang affiliation.
Any subsequent interrogation that is reasonably contemporaneous with a knowing
and intelligent waiver of a suspect’s Miranda rights does not require readvisement of
those constitutional rights. (People v. Williams (2010) 49 Cal. 4th 405, 434-435, as
modified (Aug. 18, 2010).) “The necessity for readvisement depends upon various
circumstances, including the amount of time that has elapsed since the first waiver,
changes in the identity of the interrogating officer and the location of the interrogation,
any reminder of the prior advisement, the defendant’s experience with the criminal
justice system, and ‘[other] indicia that the defendant subjectively underst[ood] and
waive[d] his rights.’ ” (Ibid.; People v. Mickle (1991) 54 Cal. 3d 140, 171 [an
interrogation conducted 36 hours after the first interview was reasonably
contemporaneous].)
46
While the parties dispute whether readvisement was necessary, we need not
resolve the issue here. Even assuming the court erred in admitting defendants’ responses
to the jail classification questions, we find the error harmless beyond a reasonable doubt.
(Chapman, supra, 386 U.S. at p. 24 [17 L. Ed. 2d 705].) The record contains convincing
evidence of defendants’ Norteno gang affiliation without any jail classification
admissions. (See Elizalde, supra, 61 Cal.4th at p. 542 [erroneous admission of responses
to jail booking questions harmless beyond a reasonable doubt where the defendant’s gang
membership was convincingly established by three witnesses who testified that they
knew him to be a gang member and the gang expert opined that defendant was a gang
member].)
Here, Detective Sample opined that all three defendants were active Norteno gang
members when they committed the charged, gang-related offenses. Defendants
repeatedly yelled the word “Norte” or “Nortenos” during the attacks. Following the
assaults on Fordyce and Lozano, defendants were arrested with two other individuals
who were Nortenos. A red canvas belt, often worn by Norteno gang members, was found
in Duran’s car during a search of the vehicle.
Police had contacted Sisneros several times with Norteno gang members while he
was wearing red clothing. When being interviewed by police in this case, Sisneros
admitted he “hood bangs” with Northerners, characterized himself as a “Northerner from
the heights,” and admitted that his family members had always been Northerners. Thus,
Sisneros’ later admission to jail classification officers that he “hangs with Northerners”
was merely cumulative of other properly admitted evidence.
While awaiting trial in this case, Duran and several Norteno gang members
assaulted another Norteno member who wanted to drop out of the gang. Duran also
yelled out the word “Norte” while be interrogated by police for the instant crimes.
Vasquez had a Norteno gang tattoo on his chest, had been shot three months
earlier at a gang party, had been contacted on multiple occasions associating with
47
Norteno gang members, often wore red clothing indicative of the Nortenos, was
photographed with other Norteno gang members throwing gang signs at a funeral for a
documented Norteno gang member, and was suspected of passing a kite in jail containing
Norteno curriculum or training materials while awaiting trial in this case.
In light of this evidence establishing defendants’ Norteno gang ties, admitting
defendants’ statements to the booking officers that they hung with or were affiliated with
“Northerners” was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at
p. 24; Elizalde, supra, 61 Cal.4th at p. 542 [“Because [defendant’s] gang affiliation was
amply established by independent and uncontradicted evidence, the erroneous admission
of his challenged statements was harmless beyond a reasonable doubt”].) Given the
absence of any prejudice from the statements’ admission, we reject defendants’ Miranda
challenge.
X
Evidence of a Criminal Street Gang
Defendants were convicted of violating section 186.22, subdivision (a), the
substantive gang crime of actively participating in a criminal street gang, and of several
gang enhancements under section 186.22, subdivision (b). Following our request for
supplemental briefing, they now claim insufficient evidence established the existence of a
“criminal street gang” for purposes of the gang offense and the gang enhancements.
The substantive gang offense under section 186.22, subdivision (a) provides,
“[a]ny person who actively participates in any criminal street gang with knowledge that
its members engage in or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal conduct by members of
that gang, shall be punished [as specified].” (§ 186.22, subd. (a).) The gang
enhancement imposes additional punishment for felony convictions “committed for the
benefit of, at the direction of, or in association with any criminal street gang, with the
48
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .” (§ 186.22, subd. (b).)
“The existence of a criminal street gang is unquestionably an element of both the
enhancement and the substantive offense.” (In re Jose P. (2003) 106 Cal. App. 4th 458,
466 (In re Jose), disapproved on other grounds in Prunty, supra, 62 Cal.4th at p. 78,
fn.5.) Section 186.22, subdivision (f) defines “criminal street gang” as “any ‘ongoing
organization, association, or group of three or more persons’ that shares a common name
or common identifying symbol; that has as one of its ‘primary activities’ the commission
of certain enumerated offenses; and ‘whose members individually or collectively’ have
committed or attempted to commit certain predicate offenses.” (Prunty at p. 67; see also
§ 186.22, subd. (f).)
While defendants’ appeals were pending, the Supreme Court decided Prunty,
which construed the definition of a “criminal street gang” under section 186.22,
subdivision (f). (Prunty, supra, 62 Cal.4th at pp. 70-71.) Prunty also discussed the proof
necessary to establish the existence of such a gang when the prosecution’s theory turns on
the conduct of one or more gang subsets. (Prunty at p. 67.) The analysis applies to both
the substantive gang offense and the gang enhancements. (Id. at p. 72, fn.3.) We thus
examine the effect of Prunty on defendants’ appeals.
The defendant in Prunty identified as Norteno and specifically claimed the Detroit
Boulevard set of the Nortenos as his own. (Prunty, supra, 62 Cal.4th at pp. 67-68.) He
had shot at a perceived rival gang member at a Sacramento shopping center while
uttering gang slurs and yelling the word “Norte.” (Ibid.) The prosecution sought to
prove he committed the charged crimes to benefit the Sacramento-area Norteno street
gang. (Id. at p. 67.)
To establish the gang enhancement, the prosecution’s gang expert testified about
the Sacramento-area Norteno gang’s general existence and origins, its use of shared
signs, symbols, colors, and names, its primary activities, and the predicate activities of
49
two local neighborhood subsets, the Varrio Gardenland Nortenos and the Varrio Centro
Nortenos. (Prunty, supra, 62 Cal.4th at pp. 67, 69.) The gang expert, however, did not
provide any specific testimony connecting the subsets’ activities to one another or to the
Sacramento Norteno gang in general. (Id. at p. 67.)
In reversing the gang enhancement for insufficient evidence, the Supreme Court
found the prosecution failed to show a connection among the subsets it alleged comprised
the criminal street gang. (Prunty, supra, 62 Cal.4th at p. 68; § 186.22, subd. (b).)
“[W]here the prosecution’s case positing the existence of a single ‘criminal street gang’
for purposes of section 186.22(f) turns on the existence and conduct of one or more gang
subsets, then the prosecution must show some associational or organizational connection
uniting those subsets.” (Prunty at p. 71.)
The court explained that the necessary “connection may take the form of evidence
of collaboration or organization, or the sharing of material information among the subsets
of a larger group. Alternatively, it may be shown that the subsets are part of the same
loosely hierarchical organization, even if the subsets themselves do not communicate or
work together.” (Prunty, supra, 62 Cal.4th at p. 71.) Evidence that “various subset
members exhibit behavior showing their self-identification with a larger group” may also
be sufficient to allow those subsets to be treated as a single organization. (Ibid.)
However the “prosecution chooses to demonstrate that a relationship exists” (id. at p.72),
the evidence must show that “the gang the defendant sought to benefit, the individuals
that the prosecution claims constitute an ‘organization, association, or group,’ and the
group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate
offense requirements of section 186.22(f), [are] one and the same.” (Id. at pp. 75-76.)
Prunty provided several examples demonstrating how to establish the necessary
connection between various subsets and an alleged larger gang for purposes of the gang
enhancement. (Prunty, supra, 62 Cal.4th at p. 77.) For more formal groups, evidence
showing shared bylaws or organizational arrangements, shot callers who answer to a
50
higher authority, or that the subsets routinely protect the same turf may prove the
connection. (Ibid.)
In situations where a group’s structure is more informal, evidence showing various
subsets collaborate to accomplish shared goals, strategize to carry out activities, or
profess or exhibit loyalty to one another would be sufficient to imply the existence of a
genuinely shared venture. (Prunty, supra, 62 Cal.4th at pp. 78-79.) Evidence that gang
subsets acknowledge one another as part of the same organization, coupled with evidence
that the organization tends to operate in decentralized fashion in a relevant geographic
area may also be sufficient. (Id. at p. 79.)
Applying this framework to the evidence presented in Prunty, the Supreme Court
first found that the prosecution sufficiently proved that the Sacramento-area Nortenos
engaged in illicit primary activities since Defective Sample had testified that “ ‘the
Nortenos’ in the area engage in various criminal practices, including homicide, assault,
and firearms offenses.” (Prunty, supra, 62 Cal.4th at p. 82.) We note that Detective
Sample provided similar testimony here.
What the Supreme Court found lacking, however, was evidence regarding the
necessary predicate offenses. (Prunty, supra, 62 Cal.4th at p. 82.) While the gang expert
in Prunty referred to two offenses involving three alleged Norteno subsets, which he
characterized as Nortenos, “he otherwise provided no evidence that could connect these
groups to one another, or to an overarching Sacramento-area Norteno criminal street
gang.” (Ibid.)
We find the evidence regarding predicate offenses in this case decidedly different
than the evidence--or lack of evidence--proffered in Prunty. Expert gang testimony,
coupled with other trial evidence, provided the required connection the Supreme Court
found absent in Prunty.
The People’s theory below was that the “criminal street gang” defendants sought
to participate in and benefit was the larger Sacramento-area Norteno criminal street gang,
51
which consisted of several local neighborhood subsets--the same theory set forth in
Prunty. To prove the existence of this larger criminal street gang, the prosecution
proffered predicate crimes committed by certain subset members. Defendants contend
insufficient evidence links defendants and the subsets to this larger “criminal street
gang.” We disagree.
Officer Herrera, a gang investigator for the West Sacramento Police Department
testified to two predicate offenses--referred to as the Memorial Park predicates--
committed by a West Sacramento subset of the Norteno street gang known as the
Broderick Boys. Officer Herrera linked the West Sacramento subset to the defendants
and the larger Sacramento-area criminal street gang through photographic evidence.
Given their “RVN” tattoos, the evidence showed that Vasquez and his brother
Luis Vasquez claimed the Richardson Village Nortenos set from the Del Paso Heights
area. Pictures posted on a Richardson Village Norteno MySpace page as well as
Vasquez’s personal MySpace page showed West Sacramento Norteno gang members,
including Norteno gang members affiliated with the Broderick Boys.
Vasquez and other West Sacramento Norteno gang members are seen in several
pictures throwing Norteno gang signs and wearing red attire. Ryan Boyd (also known as
Ryan White or Derek White), who was arrested with defendants, is also pictured. Several
of the pictures were taken at the funeral of Frank White, a well-documented Norteno
gang member. Sisneros admitted knowing Frank White when he was arrested.
From this evidence, a jury reasonably could have concluded that Norteno subsets
in West Sacramento associate with other Norteno subsets including the Richardson
Village Norteno subset in Del Paso Heights. Members of both sets attended the funeral
of a “well-documented” Norteno gang member. Such conduct shows a loyalty not only
to their particular set but also an association with the larger Norteno street gang as a
whole. (Prunty, supra, 62 Cal.4th at p. 78 [“evidence that two Norteno subsets have
52
professed or exhibited loyalty to one another would be sufficient to show that the two
subsets collaborate or cooperate”].)
The funeral pictures, we believe, also prove that “members of two gang subsets
‘hang out together’ and ‘back up each other,’ ” thus demonstrating that “the subsets’
members have exchanged strategic information or otherwise taken part in the kinds of
common activities that imply the existence of a genuinely shared venture.” (Prunty,
supra, 62 Cal.4th at p. 78.) As Officer Herrera testified, part of the Sacramento-area
Norteno criminal street gang’s activities include “all get[ting] together for functions”
such as “funerals.”
Based on his experience as an expert in Hispanic criminal street gangs, Officer
Herrera also testified that different Norteno sets comingle, hang out with each other, and
often commit crimes together. Officer Herrera responded “yes” when asked whether it
was “fair to say that Nortenos of any set, whether it be Del Paso Heights or Broderick
Boys . . . follow the same ideology,” and “use the same signs and symbols,” including the
number 14.
Detective Sample similarly testified that the violent acts of one Norteno subset
help or benefit other sets under the rubric of the larger Norteno criminal street gang.
When one set commits a violent crime, other members associated with the same umbrella
gang receive the same fear and respect from the crime.
The evidence showed that the crimes were committed in West Sacramento, and
that the defendants called out “Norte” or “Nortenos” during the attacks rather than any
particular Norteno subset. Evidence also established that Sisernos used to live in West
Sacramento, and now self-identified as a “Northerner from the heights.” Such evidence
tends to show that Norteno gang members can move fluidly among various gang
territories, and that a gang member claiming one subset or area, such as Vasquez
identifying himself as a Richardson Village Norteno through his tattoo and Sisneros
characterizing himself as a “Northerner from the heights,” may commit crimes in the
53
territory of other Norteno subsets. The jury, moreover, reasonably could have concluded
that by calling out “Norte” during the vicious attacks on the nongang member victims in
this case, the umbrella Norteno organization benefitted as the victims and other people in
the community were more likely to attribute the attack with the Norteno criminal street
gang in general.
Finally, Detective Sample testified that even though Norteno gang members may
belong to different sets or subsets, their “foremost allegiance is to the Nortenos gang,
aside from their set or subset.” They demonstrate such allegiance through their shared
use of the same colors, the same monikers, the same letters, and the same identifying
symbols linking them to the larger Norteno gang.
This evidence sufficiently shows the behavior and practices of both West
Sacramento Nortenos, including the Broderick Boys, and Del Paso Heights Nortenos
such as the Richardson Village Nortenos, which could reasonably lead the jury to
conclude the subsets shared an association with each other and the larger Sacramento-
area Norteno criminal street gang. This stands in stark contrast to the evidence in Prunty,
where the gang expert simply “described the subsets by name, characterized them as
Nortenos, and testified as to the alleged predicate offenses.” (Prunty, supra, 62 Cal.4th at
p. 83.)
Our conclusion is further buttressed after reviewing the evidence presented in two
cases discussed in Prunty, People v. Ortega (2006) 145 Cal. App. 4th 1344 (Ortega) and
In re Jose P., supra, 106 Cal. App. 4th 458. (Prunty, supra, 62 Cal.4th at p. 78, fn.5.)
While the Supreme Court disapproved of the cases to the extent they did not require
proof of an organizational or associational connection to show the existence of a single
criminal street gang, the court nevertheless conceded that the evidence in both cases was
likely sufficient to show the necessary connection under Prunty’s framework. (Ibid.)
The gang expert in Ortega testified that there were thousands of Norteno gang
members in the Sacramento area that operated through subsets. (Ortega, supra,
54
145 Cal.App.4th at p. 1356.) In finding “[t]here was sufficient evidence that Norteno was
a criminal street gang,” the court noted that “[n]o evidence indicated the goals and
activities of a particular subset were not shared by the others.” (Id. at p. 1357.) And,
there was further testimony “that it was not uncommon for members of different gangs to
work in concert to commit a crime.” (Ibid.) As discussed above, both Officer Herrera
and Detective Sample provided similar testimony in this case.
The gang expert in In re Jose testified that the “ ‘Norteno’ street gang” was an
ongoing organization having around 600 members or associates in Salinas, which was
separated into cliques or factions. (In re Jose, supra, 106 Cal.App.4th at p. 463.)
According to the expert, two such subgroups, the Santa Rita and Salinas East Market
Street (SEM) gangs, were loyal to one another and to the larger Norteno street gang.
(Ibid.) Similarly, expert testimony in this case showed that regardless of whether an
individual was a West Sacramento Broderick Boys Norteno or a Richardson Village
Norteno from Del Paso Heights, his first allegiance was to the Sacramento-area Norteno
criminal street gang, and that both sets follow the same ideology and show their
allegiance to the Norteno street gang by using the same signs and symbols.
The third predicate offense in this case, testified to by Detective Sample, also did
not run afoul of Prunty. It involved a murder committed by Steven Duran (no evidence
showed any relation to defendant Duran). He was validated as a Norteno gang member
based on the crime, but was not affiliated with any particular Norteno set. The evidence
thus showed Steven Duran identified with the larger Norteno criminal street gang alleged
by the prosecution rather than a specific Norteno subset.
As the Supreme Court emphasized in Prunty, “[t]he key is for the prosecution to
present evidence supporting a fact finder’s reasonable conclusion that multiple subsets
are acting as a single ‘organization, association, or group.’ ” (Id. 62 Cal.4th at p. 80.)
We find the prosecution satisfied that burden here.
55
XI
Evidence of Active Gang Participation
Defendants finally contend insufficient evidence shows they “actively
participat[ed]” in the alleged criminal street gang under section 186.22, subdivision (a).
Defendants fail to sustain the heavy burden of establishing such an insufficient evidence
claim, however. The record, we believe, contains ample evidence that defendants
actively participated in the Norteno criminal street gang when they committed the
charged offenses.
The level of participation required to establish the element of “active participation
in a criminal street gang” under section 186.22, subdivision (a), is “participation that is
more than nominal or passive.” (People v. Rodriguez (2012) 55 Cal. 4th 1125, 1130.) “A
person who is not a member of a gang, but who actively participates in the gang, can be
guilty of violating section 186.22(a). (§ 186.22, subd. (i).)” (Rodriguez at p. 1130.)
Sisneros argues that although he lived in a neighborhood with gang members, and
had family members who were Northerners, he did not consider himself a gang member.
The absence of any gang tattoos or previous gang convictions, he contends, further shows
he was not actively participating in the Norteno street gang when he assaulted Fordyce
and Lozano. These facts, he contends, distinguish this case from People v. Castenada
(2000) 23 Cal. 4th 743, 745, 752 (Castenada) and In re Jose, supra, 106 Cal.App.4th at
p. 466, which both found sufficient evidence of active gang participation where, among
other things, the respective defendants had been found in the company of gang members
on at least seven prior occasions, and had admitted or bragged about associating with the
gang.
A defendant’s active gang membership is often a matter beyond the common
knowledge of jurors, making it the proper subject of expert testimony. (Gamez, supra,
235 Cal.App.3d at p. 965; see also People v. Valdez (1997) 58 Cal. App. 4th 494, 506
56
(Valdez) [expert properly opined on defendant’s membership in gangs]; People v.
Champion (1995) 9 Cal. 4th 879 [expert testimony that defendants were members of a
particular gang].) Here, Detective Sample opined that Sisneros was an active Norteno
gang member.
He based his opinion on several factors, including that Sisneros committed the
charged crimes, which he characterized as gang-related, in the presence of several other
Norteno gang members. (Vang, supra, 52 Cal.4th at pp. 1044-1045 [expert properly
testified through hypotheticals that crimes were gang-motivated].) Sisneros had also
been contacted multiple times with Norteno gang members, was documented wearing red
gang-related clothing on several occasions, had admitted to officers that he “hood bangs”
with Northerners, identified himself as a “Northerner from the heights,” and admitted that
his family members had always been Northerners.
These facts are similar to those found sufficient to sustain an active gang
participation finding in Castenada and In re Jose. (Castenada, supra, 23 Cal.4th at p.753
[“evidence of the crimes defendant here committed, his many contacts on previous
occasions with the Goldenwest criminal street gang, and his admissions by bragging to
police officers on those occasions of gang association or membership” proved the
defendant’s active participation]; In re Jose, supra, 106 Cal.App.4th at pp. 467-468 [the
minor admitted associating with criminal street gangs; had been contacted by the police
on several occasions in the company of known gang members; wore gang colors; had
been involved in crimes for the benefit of the gang; and told the police he would do what
gang members asked of him].) In other words, the evidence sufficiently shows that
Sisneros was more than nominally involved with the Norteno street gang. (Castenada,
supra, 23 Cal.4th at p. 745 [“To prove that a defendant ‘actively participates’ in a gang
. . . the evidence [must establish] that the defendant’s involvement with the gang is more
than nominal or passive”].)
57
The absence of gang tattoos, moreover, is not dispositive of the active
participation issue. In People v. Garcia (2007) 153 Cal. App. 4th 1499, 1509, for
example, a defendant who had no gang-related tattoos, was not seen wearing gang
clothing or flashing gang hand signs, and whose name had not come up as an active gang
member in the expert’s recent extensive interviews with gang members was still found to
be an active gang participant at time of crime. In this case, Detective Sample testified
that due to an increase in law enforcement actions against gangs, gang members are now
less likely to have visible gang tattoos.
The jury also was not required to credit Sisneros’ self-serving statement denying
that he was an active Norteno gang member. (People v. Silva (2001) 25 Cal. 4th 345, 369
[a rational trier of fact could disbelieve those portions of defendant’s statements that were
obviously self-serving].) This is particularly so in light of Sisneros’ claim that he was in
the back of Duran’s car sleeping during the attack and did not wake up until the police
pulled over the car. Sisneros’ explanation was, to say the least, highly improbable given
the uncontradicted evidence that Fordyce had been eating nachos when he was attacked
and Sisneros was arrested with a nacho cheese stain on the front of his white shirt.
Sisneros’ palm print was also found on the driver’s side door of Fordyce’s car.
The jury heard Sisneros’ implausible explanation when it considered the evidence
of his police interrogation, and obviously rejected his contention that he did not assault
either Fordyce or Lozano that night. It rationally could have done the same with
Sisneros’ statement that he was not a Norteno gang member.
Sisneros also appears to fundamentally misapprehend our role in deciding a
sufficiency of the evidence challenge on appeal. We do not view the evidence in the light
most favorable to him, as he has done, but rather in the light most favorable to the
judgment. We must reject a sufficiency of the evidence challenge if, after reviewing the
whole record in the light most favorable to the judgment, there is any hypothesis that
would support a conviction. (Hill, supra, 17 Cal.4th at pp. 848-849; Bolin, supra,
58
18 Cal.4th at p. 331; Massie, supra, 142 Cal.App.4th at p. 371.) Under that exacting
standard, Sisneros’ challenge falls short.
Duran argues that if we disregard his statements that he was a Norteno gang
member in response to jail classification questions, the record lacks sufficient evidence to
establish his active gang participation. Even without his jail classification responses, and
even if we disregard the juvenile robbery adjudication evidence, we still conclude the
record contains sufficient evidence establishing that Duran was an active Norteno gang
member.
Duran attacked Fordyce and Lozano while in the company of several Norteno
gang members. Defendants repeatedly yelled “Norte” or “Norteno” during the attacks.
Detective Sample opined the crimes were gang-related. In an attempt to communicate
with someone in the next room while being questioned by police for the charged
offenses, Duran yelled out “Norte.”
While in jail Duran and several Norteno gang members assaulted another Norteno
member who wanted to drop out of the gang. Duran himself acknowledges that the jail
assault evidence was highly probative of his active participation as a Norteno gang
member. This evidence established that during and after the charged crimes, Duran
engaged in violent criminal conduct with other Norteno gang members. Based on this
evidence, the jury reasonably could have found that Duran was an active gang participant
even if the trial court had excluded Duran’s jail classification responses.
While it is not entirely clear whether Vasquez raises this same issue, since his
reply brief concedes that “he and two fellow gang members beat up two people and
threatened a third,” we nevertheless briefly discuss the evidence of Vasquez’s active gang
participation. Similar to his codefendants, we find that ample evidence supports the
jury’s finding that Vasquez actively participated in the Norteno criminal street gang
within the meaning of section186.22, subdivision (a).
59
Vasquez had been contacted by the Sacramento Police Department on multiple
occasions associating with Norteno gang members, including during a 2009 homicide
investigation. Vasquez often wore red clothing consistent with Norteno-style dress
during these contacts. Vasquez had also previously been shot at a party, which Detective
Sample opined was gang-related.
Vasquez admitted the “RVN” tattoo on his chest stood for the Richardson Village
Nortenos. His brother, Luis Vasquez, had a similar “RVN” tattoo and was in the car with
Vasquez when he was arrested in this case. (See e.g., People v. Martinez (2008)
158 Cal. App. 4th 1324, 1331 [expert testimony based on a review of booking photos
showing the defendant’s tattoos constitutes substantial evidence that defendant was an
active gang member for purposes of § 186.22, subd. (a)].)
Numerous photographs showing Vasquez with other Norteno gang members,
including ones from West Sacramento, were posted on his MySpace page. In the photos,
Vasquez and the others are wearing red clothing and are throwing gang signs with their
hands. Several of the pictures were taken at the funeral of a well-documented Norteno
gang member. While in jail on the present charges, Vasquez passed a kite to another
inmate containing information about Norteno “curriculum,” including a structured
training process for the gang.
The jury was amply justified, based on the above evidence, in finding defendants
were active gang participants under section 186.22, subdivision (a).
60
DISPOSITION
The judgment for each defendant is affirmed.
HULL , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
61