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November 30, 2010


Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed. (Super. Ct. No. 07CF4087)

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

P. v. Cabrera



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


A jury convicted defendant Henry Cabrera of carjacking (Pen. Code, § 215, subd. (a); all statutory references are to this code unless otherwise stated; count 1); attempted second degree robbery (§§ 211, 212.5, subd. (c), 664; count 2); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3); street terrorism (§ 186.22, subd. (a); count 4); evading police while driving recklessly (Veh. Code, § 2800.2; count 5); receiving a stolen vehicle (§ 496d, subd. (a); count 6); carrying a loaded firearm by a gang member (§ 12031, subd. (a)(1), (2)(c); count 7); and unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a); count 8.) The jury found true a gang enhancement (§ 186.22, subd. (b)) for counts 1 through 3 and 5 through 7 and that defendant personally used a firearm (§ 12022.53, subd. (b)) while committing counts 1 and 2. In a bench trial the court found that defendant had one prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to 30 years to life.

Defendant argues there was insufficient evidence to support the street terrorism conviction or the gang enhancement and the court erroneously excluded an exculpatory statement which should have been admitted under Evidence Code section 356 and failed to instruct the jury on a crime on which the prosecution relied to prove the gang's primary activity. We affirm.


On an evening in December 2007 as Julio Torrez was parking his car, two men, wearing dark blue or black sweatshirts with hoods, ran toward his car. One of them, holding a gun, demanded Torrez give him all his money and his car keys. The second man entered the passenger side and the man with the gun got into the driver's side of the car and drove away.

After receiving a report of a carjacking police found the car. Inside were two Hispanic men wearing dark sweatshirts with hoods, as described in the report. When the police first began following the car they saw the passenger throw a gun out the window, after which followed a high-speed chase. When the car stopped, the passenger, Pablo Jimenez, jumped out and ran. Defendant, in the driver's seat, surrendered. Several items, including the stereo and tools, were found missing from the car.

Torrez could not positively identify the gun as the one used but said it looked similar. At an in-field showup, Torrez was not absolutely sure defendant was the one who had taken the car. He was afraid of retaliation by the two men. About six weeks later Torrez picked defendant out of a six-pack photo lineup but at trial testified he did not recall whether he had identified him. A search of defendant's residence revealed a dark blue sweatshirt and other dark blue clothes, and a holster.

Corporal Ronald Castillo testified as the gang expert. He had 15 years in the gang unit and had served for 12 as the supervisor. His duties included assisting other gang detectives, determining whether gang charges are to be filed, and interacting with gang members. He had investigated more than 1,000 gang cases. He had also interviewed more than 5,000 gang members about their territories, allies, rivals, loyalty, respect, guns, and graffiti.

He was familiar with the Highland Street gang, having been assigned to its claimed turf since he began working with the Santa Ana police department in 1984, and had spoken to some of its members, although not for a couple of years and not with the 15 members active on the day of the carjacking. He testified as to its claimed territory, and, based on conversations with gang members, its allied and rival gangs. Its primary activities are possession of narcotics for sale (Health & Saf. Code, §§ 11378, 11351) and auto theft (Veh. Code, § 10851). He cited four narcotics arrests and five auto theft arrests of members of Highland Street, all between 2003 and 2007. This testimony was based on his review of police reports and arrest reports he had studied to determine whether to file gang charges.

The two predicate crimes were attempted first degree burglary and street terrorism in 2006 and carjacking, receiving stolen property, possessing a firearm near a school, and street terrorism in 2007. As to the earlier crime, Castillo testified he knew and had contacts with the defendant and had reviewed arrest reports and related documents. As to the second crime, he conducted a background check, including review of police reports and gang notices.

As of the date of the crimes, Highland Street was a criminal street gang based on the number of members, primary activities, symbol, and predicate crimes. Castillo testified Highland Street is a traditional Hispanic gang, which has a claimed territory, usually in a residential neighborhood, marked by graffiti and in which members have free rein because no one will try to stop them. Respect, which is critical to status, is obtained by committing crimes; violent crimes are those most helpful to the gang and earn more respect. A goal is to engender fear in the community to prevent opposition or cooperation with police or prosecutions. Victims often are hesitant to testify for fear of retaliation. Possessing a firearm increases a gang member's respect and is useful in committing crimes, including carjackings and when selling drugs. A sign of respect is to inform other gang members in a car if it contains a gun. The occupants will be aware it is available for use or to dispose of if the car will be stopped by police.

Castillo did not know defendant personally but had checked his background. He reviewed police reports and four STEP (Street Terrorism Enforcement and Prevention) notices dating between 2003 and 2007. They included information defendant had associated with two other gang members, grew up in the territory Highland Street claimed, and had been "claiming" that gang since he was in the sixth grade. Defendant had written "Highland" on a school door and a chair in his bedroom. Castillo also reviewed Lizardi's post-arrest interview with defendant, where he ...

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