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The People v. Austen Robert Manuel Nunes et al

November 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
AUSTEN ROBERT MANUEL NUNES ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Yolo County, Timothy Fall, Judge. (Super. Ct. Nos. 072135/054185)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed in part and reversed in part.

INTRODUCTION

In April 2007, defendants Austen Nunes, Pauliton Nunes, and Daniel Bonge*fn2 went with several others to the train tracks in West Sacramento to drink some stolen beer. When an Amtrak train came by, slowing as it approached Sacramento, one of the group stood on the tracks, and Austen threw a rock at the train. The train stopped and the angry engineer got off the train. A vicious assault on the engineer followed.

Defendants (and two others not before us) were prosecuted for multiple felonies, including attempted murder and assault with a deadly weapon on a public transit employee with great bodily injury and criminal street gang enhancements. The jury found defendants guilty of most of the charges and found most of the great bodily injury enhancement allegations true, but found the gang enhancement allegations were not true. The jury did, however, find defendants guilty of the offense of criminal street gang activity (sometimes called street terrorism).

On appeal, defendants contend: (1) it was error to qualify Police Officer Kenneth Fellows as a gang expert; (2) Officer Fellows's testimony improperly invaded the province of the jury; (3) there was insufficient evidence to support their convictions of criminal street gang activity; and (4) in any event the trial court should have stayed the sentence for criminal street gang activity pursuant to Penal Code*fn3 section 654. Austen and Pauliton further contend the trial court erred in failing to instruct the jury that the testimony of Bonge's girlfriend, C. S., had to be corroborated because she was an accomplice. In addition, Austen contends there was insufficient evidence he personally inflicted great bodily injury. The People concede defendants' three remaining contentions: (1) their convictions for assault with a deadly weapon (counts 2 through 4) should be reversed because those offenses are lesser included offenses of assault with a deadly weapon on a public transit employee, of which defendants were also convicted (counts 5 through 7); (2) the great bodily injury enhancements to their convictions for battery with serious bodily injury (count 8) must be stricken; and (3) the amount of their court security fees must be corrected.

We agree with those of defendants' claims the People have conceded and reverse defendants' convictions for assault with a deadly weapon (counts 2, 3, and 4) and the great bodily injury enhancements on their battery convictions (count 8). We also correct the amount of the court security fees. Otherwise, however, we affirm the judgment. As we will explain, the gang expert was properly qualified and his testimony did not exceed the permissible scope for a gang expert. There was substantial evidence of criminal street gang activity, and there was no evidence C. S. was an accomplice. Moreover, her testimony provided substantial evidence that Austen personally inflicted great bodily injury.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Crimes

On April 16, 2007, several people, including defendants, was hanging out and drinking at the Pickwick Motel in West Sacramento. Among the group was Bonge's girlfriend, C. S., and her brother Ernie, a self-proclaimed Broderick Boys gang member. The group took multiple photographs at the motel that were later found on Pauliton's cell phone, which was discovered at the scene of the attack on the train engineer. The photographs showed defendants and some others making gang signs outside the motel. In particular, they were forming the letter "N" and the number "14" or "XIV," which symbolize the Norteno gang (N being the 14th letter of the alphabet), and the letter "B," which symbolizes the Broderick Boys, a subset of the Norteno gang in West Sacramento.

After spending a while at the motel, a smaller group that included C. S. and defendants went swimming in the Sacramento River. After that, Austen suggested a beer run, and the group stole beer from a market. The group then went to the train tracks to drink the stolen beer.

At some point, after one of the group (Javier Ramos) went up on the tracks, an Amtrak passenger train approached on its way to Sacramento. The crew had received information that there were trespassers on the tracks, and as the train slowly approached the I Street Bridge the engineer, Jacob Keating, saw a person on the tracks waving his hands. As Keating stopped the train to avoid hitting the person (Ramos), Austen threw a rock at the train. Keating flinched and cursed as the rock struck the window frame near his head.

Angry, Keating got off the train and yelled at the group to get off the tracks. The group started throwing rocks at him and he threw a rock back. Keating then saw Bonge approaching him with a big rock in his hand. Keating asked Bonge if Bonge was going to hit him, but then, in self-defense, Keating punched Bonge first. After Keating hit Bonge a second time, Bonge fell to the ground and pulled Keating with him, where Keating continued to punch Bonge. Pauliton intervened, kicking Keating in the ribs. Keating then began fighting with Pauliton, and a third person came up and hit Keating in the face a couple of times.

Meanwhile, the train's conductor, William Ray, Jr., had followed Keating off the train, grabbing a fire extinguisher before he stepped off because he heard yelling. After the group began throwing rocks at him, Ray discharged the fire extinguisher, then threw rocks back at them. At some point he set the fire extinguisher down and was rushed by several individuals. Eventually Ray managed to get back on the train amidst a barrage of rocks and bottles.

Richard D'Alessandro was a student engineer on the train. He also got off of the train and found it hard to see; things happened fast and it was "almost like a dream." Rocks and bottles were being thrown. D'Alessandro was not hit, but he reeked of beer. He returned to the train and called dispatch, requesting police assistance. A service attendant on the train had also called 911.

In the midst of the attack, Keating managed to get back on the train. When he saw that D'Alessandro was still outside and "in a bad situation," he got back off the train. He eventually ran into "the trespassers on the tracks" and ended up fighting with five of them. Someone tackled him from behind, and then he was struck in the back of the head with a Grey Goose vodka bottle.*fn4 Austen also struck Keating in the back of the head with the fire extinguisher. Keating begged his attackers not to kill him, but they continued attacking him. Eventually Keating was bleeding so profusely that everyone ran.

As Keating tried to get back on the train, Austen and another person returned and punched him, and Austen demanded his wallet and cell phone. When Keating told them, "'It is on the train,'" they hit him again, but then ran away when they determined the police were coming.

When Keating finally made it back onto the train, D'Alessandro drove the train into Sacramento. There was blood, broken glass, stones, and fire extinguisher dust everywhere. D'Alessandro described the scene as "pretty horrific."

Keating suffered serious injuries from the assault. He spent two and one-half days in the hospital and required staples to close the cuts on his head. In addition, he had numerous cuts and bruises and had to use a cane for two or three months. About a week after the attack, Keating returned to the hospital with severe postconcussive symptoms.

B

The Charges

The indictment charged defendants and two others (including Ramos) with 12 felonies and two misdemeanors: specifically, one count of attempted murder (count 1); three counts of assault with a deadly weapon (the fire extinguisher, the vodka bottle, and the stones) (counts 2, 3, and 4); three counts of assault with a deadly weapon on a public transit employee (the fire extinguisher, the vodka bottle, and the stones) (counts 5, 6, and 7); one count of battery with serious bodily injury (count 8); one count of attempted second degree robbery (count 9); one count of throwing a missile at a vehicle of a common carrier (count 10); one count of vandalism (count 11); one count of criminal street gang activity (count 12); and two misdemeanor counts of assault on transportation personnel (counts 13 and 14). All of the felony charges included great bodily injury enhancement allegations, and all of the felony charges except the criminal street gang activity charge (§ 186.22, subd. (a)) included enhancement allegations for criminal street gang activity under section 186.22, subdivision (b).

C

The Gang Expert

Before trial, Bonge moved to limit the testimony of any gang expert the People intended to call. The trial court denied that motion. Subsequently, during trial, Austen and Pauliton moved to exclude any gang expert testimony on the ground there was insufficient evidence the crimes were gang related. Bonge joined that motion.

The court held a hearing on the motion to exclude gang expert testimony. Pauliton's attorney complained about late discovery and the late notice that Officer Kenneth Fellows would be substituted as the People's gang expert in place of the officer who had testified before the grand jury. The trial court ruled the defense could impeach Officer Fellows with the grand jury testimony of the other officer and limited Officer Fellows to giving opinions based on the reports defendants currently had. The court also limited Officer Fellows to the theory of gang involvement advanced before the grand jury.

Subsequently, Officer Fellows testified he had been a West Sacramento police officer for approximately nine years. He was currently assigned to the community response team, which dealt with gang, narcotic, and prostitution crimes and other quality of life issues. Before this assignment, he had been on patrol for approximately seven years.

Officer Fellows had 250 hours of formal training on gangs. His last training was a 16-hour FBI course a week before he testified. In addition to formal training, he had received training from field training officers and the gang investigator who had testified before the grand jury. Of his 250 hours of formal training, approximately 100 hours were devoted to Hispanic gangs, including the Nortenos.

Officer Fellows had attended a debriefing of a lieutenant of the Nuestra Familia, a prison gang. The Norteno gang is a division of the Nuestra Familia, and the Broderick Boys is a division (or subset) of the Nortenos. Officer Fellows was a member of the California Gang Task Force, the Northern California Gang Investigators Association, and the California Gang Investigators Association. He had experienced no fewer than 700 gang contacts, mostly with Nortenos, including the Broderick Boys, while working with gang members in West Sacramento. In his conversations with gang members, they had discussed the lifestyle, philosophy, membership, dress, hairstyles, signs and tattoos, graffiti, rivalries and alliances, and turf of the gang. They also discussed the gang concept of respect.

Officer Fellows had investigated no fewer than 20 gang crimes and had assisted in other investigations. He reviewed reports of gang-related crimes and consulted the database of gang-related crime members and suspects. He also read literature on gangs. Other officers asked him questions about gangs. Officer Fellows had previously been qualified as a gang expert in three preliminary hearings.

Defendants objected to Officer Fellows testifying as a gang expert, but the trial court overruled their objections.

Officer Fellows testified there are over 300 validated gang members in West Sacramento; 167 of them are members of the Broderick Boys. The Broderick Boys identify with the number 14 and the color red. They also identify themselves with the letter B.

There are several ways to become a member of the Broderick Boys. One can be "jumped in" through a fight. Another method is generational, by which members are accepted into the gang because there are already gang members in their family. Others join as walk-ins by hanging around gang members. Although Nortenos are primarily Hispanic, in West Sacramento, whites and blacks are also accepted as members of the Broderick Boys.

Officer Fellows explained that gang members are expected to put in work or "earn [their] bones" to show they are "down for the gang." They do this by committing crimes or backing up fellow gang members who are confronted by rivals. They then earn loyalty or status within the gang and earn the right to a gang tattoo, such as four dots.

Turf is very important and the gang protects it. The turf of the Broderick Boys is north of Highway 50 to the Sacramento River and east of Harbor Boulevard, within the old neighborhoods of Broderick and Bryte. The railroad tracks where the attack on the engineer occurred were within the turf claimed by the Broderick Boys. There was a substantial amount of Broderick Boys graffiti in the area.

Officer Fellows testified that the primary activities of the Broderick Boys are assaults, theft, vehicle theft, burglary, narcotics sales, weapons violations, and homicides. The assaults often involve weapons and are violent, with multiple members attacking a single victim. Officer Fellows identified different levels of participation in a gang: "hanging around associates," who do not commit crimes; active gang members, who commit crimes and recruit; and old gangsters or "OG's," who are older and out of prison. "OG's" are less likely to be actively involved; they use younger members to commit crimes.

Officer Fellows gave his opinion that Bonge was an active participant in the Broderick Boys. He based his opinion in part on the various photographs showing Bonge and others making the signs "N," "XIV," and "14." Officer Fellows noted the pictures had been taken in public and there would be adverse consequences for displaying gang signs if one was not a member.

Officer Fellows also based his opinion on evidence that Bonge had a prior police contact in which he was issued a STEP Act*fn5 notice for hanging out with gang members. Specifically, Bonge was caught shoplifting at a Walgreens drug store in 2006 with Pauliton and Rolando Venegas, a validated Norteno and Broderick Boy.

Officer Fellows also relied on the theft of the beer on the day of the attack on the train engineer to support his opinion that Bonge was an active participant in the Broderick Boys gang. Fellows noted that Bonge associated with others to conspire to steal the beer and to engage in the gang activity of drinking beer and celebrating.

Officer Fellows also gave his opinion that Austen was an active participant in the Broderick Boys. He based his opinion in part on the fact that items seized from the Nunes residence -- which included a piece of notebook paper with "SAC," "916," "Norte," and "409" on it; two red bandanas; and a shirt with the character from the movie Scarface on it -- showed gang affiliation. Scarface is a violent movie about a gangster that glamorized the mentality that gang members idolize. The red clothing showed the residents were "gang related for the Nortenos."

Also, when Austen was admitted to juvenile hall in 2005, he asked if it was filled with "scraps," a derogatory term Norteno gang members use for members of the rival Sureno gang. According to Officer Fellows, this showed Austen was a Norteno. Fellows also relied on another incident in 2006, in which Austen was documented wearing a red belt, and on the fact that Austen was shown making gang signs in the photographs taken on the day of the incident.

For similar reasons, Officer Fellows gave his opinion that Pauliton was an active member of the Broderick Boys.

It was also Officer Fellows's opinion that Ramos and the fifth charged defendant (R. R.) were active gang participants. Ramos had admitted he was a Norteno, claiming he was "jumped in" but had not yet put in the work to get his dots. Like Austen, Ramos used a derogatory term for Surenos ("sewer rats") while in juvenile hall. For his part, R. R. displayed his alignment with the Nortenos by putting four dots and the number 14 on his sandals while in juvenile hall.

Officer Fellows explained the concept of respect as it pertains to gang members. A gang member can earn respect quickly by an act of violence since respect is associated with fear in a gang. The more violence a gang commits, the more it cripples the community and makes citizens less likely to stand up and report gang crimes. Fear and intimidation are a gang's ultimate power over the community. Even if gang members do not shout out the name of their gang during an attack, in a small community word of gang violence spreads fast.

Officer Fellows also testified about three members of the Broderick Boys who had been convicted of gang-related crimes.

On cross-examination, Officer Fellows admitted it was not a crime to belong to a gang. Also, he testified the Broderick Boys were disorganized, with no "shot caller."

In response to a direct question by defense counsel, Officer Fellows testified it was his opinion that the assault on the railroad tracks was a gang crime because numerous gang members were associating and came to the aid of their friend who was being beaten in the fight and "turned the tables." "Multiple subjects, that's gang mentality, that's a gang attack, it is a gang assault." The assault was a gang crime because of the association of the gang members, their prior documentation as gang members, their prior contacts with law enforcement, and the photographs showing them acting like gang members by throwing gang signs. Defendants did not just pull a friend away from a fight; they used numerical supremacy to turn the tables.

In response to defense counsel claiming Officer Fellows did not know the whole picture because he had not reviewed all the reports of the incident, Fellows responded he knew that the engineer was assaulted, that defendants are gang members, that the assault benefited the gang, and that defendants acted in association for the benefit of the gang.

D

Verdict And Judgment

The jury acquitted Bonge of attempted murder, attempted voluntary manslaughter (a lesser included offense of attempted murder), and attempted robbery, but found him guilty of the remaining charges. The jury acquitted Austen of attempted murder but found him guilty of attempted voluntary manslaughter and all of the remaining charges. The jury acquitted Pauliton of attempted murder and attempted robbery but found him guilty of attempted voluntary manslaughter and all of the remaining charges.

As for the sentencing enhancement allegations, the jury found all of the criminal street gang enhancement allegations not true but found the great bodily injury enhancement allegations true as to the charges of the assault with the fire extinguisher (counts 2 and 5), the battery charge (count 8), and the criminal street gang activity charge (count 12).*fn6

For each defendant, the trial court designated the assault with a deadly weapon on a public transit employee using the fire extinguisher (count 5) as the principal term and imposed a seven-year prison sentence for the conviction and the associated great bodily injury enhancement. Additionally, the court imposed a consecutive eight-month term on each defendant for the vandalism conviction and a consecutive eight-month term on each defendant for the criminal street gang conviction (although the court stayed the additional term for the associated great bodily injury enhancement). The court also imposed a consecutive eight-month term on Austen for the attempted robbery conviction. The court stayed the terms or sentenced concurrently on all other convictions and enhancements. Thus, the court sentenced Austen to an aggregate term of nine years in prison, Pauliton to a term of nine years and four months (which included a year for a prior charge), and Bonge to a term of eight years and four months.

DISCUSSION

I

Qualification Of The Gang Expert

Defendants contend the trial court abused its discretion in qualifying Officer Fellows as a gang expert because "he lacked ...


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