Los Angeles County Super. Ct.No. NA083496 APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed.
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Terry Robinson was convicted of assaulting David Moguel and Daniel Castanon with a firearm in violation of Penal Code section 245, subdivision (a)(2).*fn2 The jury found defendant personally used a firearm in committing the assaults (§ 12022.5) and personally inflicted great bodily injury upon Moguel (§ 12022.7, subd. (a)). The jury also convicted defendant of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury acquitted defendant of the attempted murders of Moguel and Castanon and found not true criminal street gang allegations. In a separate proceeding, the trial court found defendant had served a prior prison term under section 667.5, subdivision (b).
The trial court imposed a sentence of 22 years 4 months, comprised of the four-year upper term for the Moguel assault with a firearm, three years for the great bodily injury enhancement, and the upper term of ten years for the firearm use enhancement. A consecutive sentence of one year was imposed for the Castanon assault (one-third the middle term), enhanced by three years four months for the use of a firearm, and one year for the prior prison term. Sentence on the felon in possession of a firearm count was stayed pursuant to section 654.
In his timely appeal, defendant contends: (1) the trial court's limitation on the cross-examination of the prosecution gang expert was an abuse of discretion and a violation of defendant's constitutional right to present a complete defense; (2) the trial court erroneously and prejudicially permitted the prosecution to impeach defendant with his prior conviction for carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)); and (3) the trial court erroneously and prejudicially permitted the prosecution to present rebuttal testimony by Viola Gutierrez. In supplemental briefing, defendant contends imposition of the enhancements for both the great bodily injury and firearm use, as to the assault on Moguel, were barred by section 654.
On the evening of October 3, 2009, just after midnight, Castanon was sitting outside his home on West Ninth Street in Long Beach with his friend Moguel. The residence was in the territory of a Hispanic street gang called Barrio Pobre. Both men are Hispanic. Moguel was drunk, but Castanon was sober. Defendant, an African-American male, approached them on foot from the alley. Moguel asked defendant, "Where are you from?" Defendant stopped, turned toward them, and said, "I'm from Insane." Castanon understood that "Insane" referred to a street gang. Moguel responded, "Fuck Insects," which was a term of disrespect for the Insane gang. Defendant turned and began to walk away in the direction of Magnolia Avenue. After walking 20 to 25 feet, defendant turned back to face Castanon and Moguel, pulled out a handgun, and fired at least five gunshots at them. Castanon heard his friend scream, "Fuck Insects."
According to Castanon, Moguel was unarmed and did not reach into his waistband prior to the shooting. Castanon ran to his neighbor's home for help; he did not realize he had been grazed in the back by a gunshot. Within a few minutes, Castanon returned to the shooting scene. Moguel was still on the steps, bleeding from a gunshot wound to his arm. The police arrived within minutes. Castanon identified defendant at a field showup shortly thereafter.
Moguel admitted being intoxicated and did not remember what he and defendant said to each other, nor did he recall what the shooter looked like. He denied ever pulling a gun out that night. Moguel understood that "Fuck Insects" was offensive and making that assertion to an Insane gang member will cause a "problem." Upon hearing it, a gang member "might actually pull out a gun and start shooting." Ordinarily, Moguel would not make such a challenge unless he was "armed and ready to get down," but Moguel was drunk that night.
Viola Gutierrez heard gunshots sometime after 12:20 a.m. from her apartment on Magnolia Avenue, which was close to the shooting scene. Within seconds, she looked out her window onto Magnolia and an alley across the street. She saw defendant run across the street and through the front gate of her apartment complex. He had a gun in his hand and was wrapping it in a T-shirt. Gutierrez had seen defendant before that incident. Defendant entered a downstairs apartment within the complex--the unit in which Mercedes Harris (defendant's girlfriend) and her daughters lived. Gutierrez called the 911 operator and reported that an African-American ran into the Harris apartment shortly after the gunshots were fired.
Officer Lorenzo Uribe responded to the shooting scene at 12:26 a.m. Five minutes after speaking to Castanon, the officer went to the Harris apartment, where he found defendant, who matched the description of the suspect. Officer Uribe told defendant to raise his arms, but defendant began to walk away with his arms down and said, "I didn't do anything. I am here in my house. I been here all along, man." The officer and his partner opened the apartment security door, which was not locked, and detained defendant.
Officer Thomas Vriens arrived with Officer Uribe at the scene and spoke to Gutierrez at her apartment. She directed him to the Harris apartment. In a walk-in closet, the officers found a black .38 special revolver that smelled of gunpowder, indicating it had been fired recently. There were two live rounds in the weapon. The handgun was wrapped in a black T-shirt. After defendant was arrested and while the officers were removing him from the apartment, defendant yelled to Harris not to talk to the police: "You don't need to tell them shit."
Defendant was taken to the police station. During the booking process, Officer Uribe read defendant his Miranda rights,*fn3 which defendant said he understood. He admitted being a member of the Insane Crips with the moniker, "Big Gump."
Three expended .38-caliber bullet casings were found in a trash can in the alley, close to Magnolia. A damaged bullet that was consistent with having been fired from the.38-caliber revolver recovered from Harris's apartment was also recovered at the scene. One of the expended cartridge cases found at the scene had been fired from the revolver. The other two could have been fired from that weapon, but were too damaged to make a conclusive determination.
The prosecution's gang expert, Detective Hector Gutierrez, had received extensive training in California street gang culture and criminal behavior, as well as participated in numerous criminal gang investigations over the past 20 years. He was familiar with the Insane Crip gang, having investigated them for nearly two decades. He had also investigated the Barrio Pobre gang. The Insane Crip gang was predominately African-American, while Barrio Pobre was Hispanic. The Insane gang had approximately 1,200 members at the time of the Moguel shooting. It had territory throughout Long Beach, and its members considered all Hispanic gangs to be rivals. Its primary activities included the commission of murders (usually the killing of rival gang members) and the sale and transportation of narcotics.
Detective Gutierrez was aware of police reports concerning defendant and had spoken to other officers about defendant. Based on the information he had received, the detective opined that defendant was a member of the Insane Crips and its clique, the Baby Insane Gang. The detective also reached this conclusion by relying on defendant's admission of gang membership during booking and the gang-related tattoos on defendant's body.
After investigating Moguel, Detective Gutierrez concluded he belonged either to the Barrio Pobre gang or the Barrio Small Town gang. He believed Castanon was either a gang member or a gang associate because he associated with gang members and dressed as one.
The detective explained that in gang culture, the question, "Where are you from?" asked whether the person addressed was a gang member and, if so, to identify the gang. The phrase was a gang challenge that can typically incite violence.
Based on a hypothetical set of facts that closely reflected the prosecution case, the detective opined the shooting was committed for the benefit of the Insane Crips because rival gang members had issued a gang challenge to the shooter. A member of the Insane Crips would be required to respond violently to the challenge. Such a violent response not only would enhance the shooter's reputation within the gang, but would enhance the gang's reputation for violence. That, in turn, benefitted the Insane Crips by demonstrating to the community that its members were willing to commit violent acts to protect themselves and terrorize the community.
Defendant testified that he lived in Long Beach, outside Barrio Pobre territory. Harris, his girlfriend and mother of his daughter, lived on Magnolia within Barrio Pobre territory.*fn4 Defendant knew it was dangerous for him to be in a neighborhood claimed by Hispanic gangs, but Harris had called him because their daughter needed to go to the hospital the following morning. Defendant travelled most of the way by bus and was walking to Harris's apartment when he passed Moguel and Castanon, who were on the porch. Defendant did not know them and was not looking for a confrontation. Moguel, using an "aggressive" tone, asked where defendant "came from." Defendant responded, "I am not tripping," meaning that he had no gang business.
As defendant continued walking, Moguel stood up and said, "Fuck Insects," which defendant understood as an insult to his gang. Defendant said nothing and kept walking away, but looked back to keep an eye on Castanon and Moguel. When Moguel lifted up his shirt, defendant believed he "was about to grab a gun." Defendant, who had been shot before, "felt like [Moguel] was about to shoot" him. Defendant fired in Moguel's direction, aiming at his leg, and began to run away. He stopped, turned around, and fired twice more for a total of three shots from his revolver. He did not see Moguel or Castanon with a gun, but defendant heard gunshots other than his own and heard "bullets whizzing by" him. His intention was to "get [Moguel and Castanon] away from" him. He ran to Harris's apartment ...