(City and County of San Francisco Super. Ct. No. 199275)
The opinion of the court was delivered by: Lambden, J.
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A jury convicted defendant Marcos Vinicious Reis-Campos (Campos) of the second degree murder of Luis Guillermo Fuentes (Fuentes), rejecting his claim that he shot Fuentes in self-defense and finding true an enhancement allegation that he acted "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 . . ." (Pen. Code, § 186.22, subd. (b)(1)).*fn1 In addition, the jury found true firearm enhancement allegations (§§ 12022.53, subd. (d), 12022.5, subd. (a)) and convicted Campos of active participation in a criminal street gang (§ 186.22, subd. (a)) (count II). On appeal from these convictions, Campos contends the trial court erred in: (1) denying his request for an evidentiary hearing to explore the possibility that the prosecution failed to disclose favorable, material evidence (Brady v. Maryland (1963) 373 U.S. 83 (Brady)); (2) precluding him from cross-examining the People's gang expert regarding the victim's reputation for violence; (3) admitting evidence of his participation and status in the gang after the shooting; and (4) failing to instruct the jury on an element of count II. We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2004, the People filed a felony complaint against Campos alleging that he had murdered Fuentes (§ 187) (count I), and had done so for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). The complaint included a special allegation that Campos had personally and intentionally discharged a firearm in the commission of the murder (§ 12022.53, subds. (a)(1), (d)) and a second felony count of active participation in a criminal street gang (§ 186.22, subd. (a)) (count II). After a July 2006 preliminary hearing, Campos was held to answer on both counts. Shortly thereafter, he was charged by information in accordance with the complaint. The information added a firearm enhancement allegation under section 12022.5, subdivision (a), and asserted that Campos committed the murder willfully, deliberately, and with premeditation (§ 664, subd. (a)). Campos entered a plea of not guilty to both counts and denied the special allegations.
The matter proceeded to a jury trial in May 2007. The People argued that Campos was a member of a violent street gang and had killed Fuentes, a rival gang member, in defending gang territory and seeking status in the gang. The defense contended Campos killed Fuentes in self-defense, maintaining Fuentes was the leader of a rival gang who had threatened him and orchestrated two attempts on his life in the months before the shooting. On July 2, 2007, the jury convicted Campos of second degree murder (§ 187) and active participation in a criminal street gang (§ 186.22, subd. (a)), and found all the special allegations true.
Campos filed a motion for a new trial. Before filing an opposition, the prosecutor sent defense counsel a letter indicating she had learned Fuentes was a suspect in a vehicle shooting in Daly City. Concurrently with his reply in support of the motion, Campos filed a request for an evidentiary hearing "in connection with pending motion for a new trial," "to determine whether the prosecution has complied with its constitutional obligation to provide the defense with material exculpatory evidence in the possession of law enforcement." The trial court denied the motion for a new trial and the request for an evidentiary hearing.
The trial court sentenced Campos to 15 years to life on count I and imposed consecutive terms of 10 years to life for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), for a total term of 50 years to life. The trial court sentenced Campos to a concurrent term of three years on count II.
Campos filed a timely notice of appeal from the judgment of conviction.
The following evidence was presented at trial: On June 26, 2004, Fuentes was shot and killed near the northeast corner of 24th Street and Hampshire Avenue, an area of the Mission District of San Francisco claimed by the Nortenos, a violent Latino street gang. Thirty-five-year-old Fuentes was the leader of M.S.13, a "very vicious" Latino street gang affiliated with the Surenos, a Norteno enemy. He was found laying face down with gunshot wounds to his right cheek, head, and back, and wearing bright blue shoes, the color claimed by the Surenos. Campos, an admitted member of the Nortenos, was identified as the shooter.
Around 8:00 p.m. that day, Fuentes and his six-year-old son Rafael were walking to the store from a nearby home. Rafael testified that he and his father had just crossed the street holding hands when they saw Campos, and that Fuentes let go of his hand. Rafael heard gunshots and ran home crying. He told his mother a man pulled out a gun and killed his daddy. Rafael testified that Fuentes did not have a gun or knife in his hand when he was shot.
Denhi D. witnessed the shooting and testified as follows: She was parking her car at the corner of 24th Street and Hampshire Avenue and heard a gunshot behind her to the right. She turned and saw two men standing about a foot away from each other. One had a gun and was standing with his back to a wall, about a foot away from it. The other man was standing with his back to the street. Denhi heard two more shots and saw the man with the gun shoot the other man, who fell to the ground. The shooter did not fire the gun after the victim was on the ground. The shooting happened "extremely fast--a matter of seconds." Denhi did not see the two men struggling for the gun or any physical contact between them. The shooter put the gun in his pocket and ran away, and Denhi followed him in her car. Denhi saw him drop the gun in a planter on the sidewalk and go into a laundromat, where he was later arrested without incident.
Denhi later identified Campos as the shooter and the man she followed. Another witness who heard gunshots near 24th Street and Hampshire Avenue saw a man running from the scene and later identified him as Campos.
Police investigators found a .38 caliber revolver stuck inside a potted plant near the scene. The revolver held six rounds of ammunition, and all six shots had been fired. Gunshot residue was found on Campos's right hand.
Dr. Amy Hart conducted the autopsy of Fuentes and concluded the cause of death was multiple gunshot wounds: one to his right cheek, two to the back of his head, and three to his back. Dr. Hart could not determine the order in which the wounds were inflicted. She saw no evidence of a close or intermediate range of fire, and she concluded all six wounds were "distant gunshot wounds." Noting that the distance from which the gun was fired could be better measured by test firing the gun, she estimated the shots were fired from a distance of "around a few feet," "[b]ut it could be less than that, or more than that, or a great deal more than that." Dr. Hart said she found no soot or gunpowder particles on Fuentes's hands, as you would expect to see if his hand was very close to the muzzle when the gun was fired.
A firearms expert testified that bullets and bullet fragments recovered from Fuentes's body were from the revolver police found.
Testimony Regarding Campos's Gang Involvement After the Shooting
San Francisco Sheriff's Department deputies assigned to the county
jail testified that gang-related drawings and "kites" were found in
Campos's possession during his incarceration after the shooting.*fn2
The deputies opined that Campos was a Norteno shot caller and "tier
channel" for his "tank," who had been given a high place in the gang
The Prosecution's Gang Expert
Officer Mario Molina testified for the People as an expert in Latino gangs, discussing the gang culture in general and the Norteno and Sureno gangs in particular. In Molina's opinion, the shooting was gang-related. He concluded that, in June 2004, Campos was a member of the 22nd and Bryant Street gang, also known as 22B or the Bryant Street Locos (BSL), a subset of the Nortenos. In 2004, 22B was the most criminally active Norteno gang in San Francisco. Campos has gang tattoos all over his body. Field interview cards and photographs from police contacts show he admitted gang membership, was associating with other gang members, and was wearing gang colors in the months before the shooting.*fn3 Almost all of the contacts occurred in Norteno territory. A photograph shows him wearing a red bandanna as a headband, indicating membership in the Nortenos, who claim the color red. At the time of the shooting, Campos was not wearing red but had a red bandanna that was ready to be worn as a headband.
Fuentes also had gang tattoos, including the letters "M.S." In 2004, M.S.13 was the most active subset of Surenos in San Francisco. Like the Surenos, M.S.13 is a Norteno enemy and claims the color blue. Officer Molina saw Fuentes at weekly soccer games playing for the M.S.13 team, but had seen and talked to him on M.S.13 "turf." His gang moniker was "Memo." Officer Molina concluded after Fuentes's death that Fuentes was the head of M.S.13 in San Francisco.
At the time of the shooting, Fuentes was wearing blue shoes in Norteno territory, which would be seen by the Nortenos as a sign of disrespect. Officer Molina said gangs have a code of conduct that requires respect for the neighborhood, and Latino gangs claim specific areas and are very territorial. When a rival enters their territory, they feel disrespected and answer the challenge by "checking" the trespasser with a verbal confrontation, followed by an act of violence. Officer Molina opined that the shooting in this case "is a classical confrontation where a person is perceived as a rival in the defendant's gang turf, and that person was checked and ultimately resulted in a killing." Noting that the gang code also requires "payback" for crimes against the gang, he said Campos called at least three other 22B gang members following his arrest. Campos referred to the gang and said: "Be on the lookout. I don't want anything to happen to you." Five months after the shooting, Officer Molina returned to the scene and discovered 22B graffiti on the sidewalk where Fuentes was killed, indicating the gang was claiming the crime.
Officer Molina said: "As a gang member, it's your job to take out your rival." Nonetheless, gang members are not supposed to attack a rival in church or when he is with members of his family. Younger gang members may break these rules to achieve a higher status. Officer Molina said, however, that gang members almost always act in groups, and it would be unusual for a gang member to act alone in doing violence to a rival.
Officer Molina said 22B would benefit from Campos's acts in killing Fuentes because the crime would provide recognition, produce fear in the community, and serve as a warning to rival gangs. Officer Molina said Campos would gain recognition and status in the gang. Confirming the significance of the kites and drawings found in Campos's possession in jail, he said a gang member can move ahead by "putting in work" for the gang--committing crimes, flashing gang colors, or selling drugs. Gang leadership is based on the length of membership, loyalty, and readiness to use violence.
Officer Molina identified a prior gang-related assault and robbery, narcotics sale, and drug possession conviction as the predicate crimes establishing 22B as a criminal street gang under section 186.22.
Campos said his friends told him in late December 2003 that M.S.13 wanted to kill him because he had disrespected them by dating a girl who was pregnant by an M.S.13 gang member, wearing red in their territory, and turning down Fuentes's invitation to be a member of M.S.13. Campos was "jumped in" by the Nortenos in February or March ...