IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
February 10, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RUDY SANCHEZ GONZALES ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 07124)
The opinion of the court was delivered by: Raye , P. J.
P. v. Gonzales
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the course of a quarrel fueled by a potent mix of drugs, guns, and money, defendant Lorenzo Alberto Godoy shot Raul Ramos several times, and defendant Rudy Sanchez Gonzales threatened Antonio Paniagua with a knife. An information charged defendants with attempted premeditated murder, assault with an automatic firearm, residential robbery, burglary, and false imprisonment. The information charged Gonzales with possession of a firearm by a person who had previously been convicted of a serious felony. The jury found defendants guilty on all charges except robbery and burglary. The court sentenced defendant Gonzales to 146 years to life and defendant Godoy to 27 years four months, plus 32 years to life, in prison.
Defendant Gonzales appeals, contending the court erred in sentencing him for both assault with a firearm and attempted murder, evidence of gang membership should have been excluded, and admission of written communication between Gonzales and other inmates violated his constitutional rights and forced him to testify at trial. Defendant Godoy appeals, joining Gonzales in arguing that the trial court improperly sentenced him for both assault with a firearm and attempted murder, and that the court erred in admitting evidence of gang membership. We shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Victim Raul Ramos, who sold drugs, began buying methamphetamine from defendant Godoy in 2006. Godoy agreed to supply drugs to Ramos, who would in turn sell the drugs and repay Godoy. Haplessly, Ramos fell behind on his payments and owed Godoy $4,000. Godoy, in turn, owed his supplier, "Rick."
Godoy and Rick threatened to shoot Ramos if he failed to pay off the debt. Ramos agreed to pay Godoy $2,000 and turned over the pink slip to his truck as collateral for the balance of the debt.
Ramos met defendant Gonzales twice briefly. At their first meeting, Gonzales told Ramos not to talk to his son. At the second, Ramos had gone to pick up drugs from Gonzales's aunt's home and Gonzales, who had a knife, challenged Ramos to a fight.
In December 2005 Antonio Paniagua moved in with Ramos to escape from drugs and gangs; Paniagua had been affiliated with the Sureno gang from Southern California. Previously, Paniagua had stayed with Gonzales. Ramos referred to Paniagua as his "son."
One evening in January 2007, Ramos was in his apartment with Paniagua and Paniagua's girlfriend, Amanda Ickes.*fn1 The trio was taking drugs. Gonzales's niece, Esperanza Ybarra, was in the kitchen and Ramos's wife was in the bedroom.
Ramos's neighbor, Lucero Rangl, saw six or seven strange men outside the apartments. Two men stood behind a tree on the sidewalk, two others stood at the end of the street behind two cars, and two more stood in front of Ramos's apartment. There was another man "just kind of roaming around." One man went to the back of the building just before Rangl heard gunshots.
Paniagua, who had been smoking methamphetamine, stood on the apartment's patio as Godoy and Gonzales walked up. Godoy put a gun to Paniagua's head and they told him to go inside. Paniagua went inside looking frightened, sat on the couch, and said people were after him. Shortly afterward, Gonzales and Godoy entered the apartment. Gonzales wore a black trench coat; Godoy wore a hooded sweatshirt.
Gonzales rushed at Paniagua, pulled out a knife, and threatened him. As Ramos stood up, Gonzales told everyone to sit down. Gonzales asked Ramos, "and by the way where is my money, fool." Gonzales also told Godoy to calm down. One of the intruders took Paniagua's blue belt, which he wore to show he belonged to the Sureno gang.
Godoy told Ramos that Ramos owed him $2,000. Ramos said, "no one tells me to sit down in my own house." Godoy picked up Ramos's police scanner; Ramos told him to put the scanner back. Ramos grabbed Godoy's hand, and Godoy shot him once in the abdomen.
After Godoy shot him, Ramos heard his wife cry out. As Ramos went toward the bedroom, Godoy shot him multiple times. Ramos asked Godoy, "[I]s that all you got?" and stated "[Y]ou're not man enough to kill me."
As he left, Godoy pointed the gun at Ickes' head. Ickes believed this was a warning to her to be silent. Paniagua dialed 911 and handed the phone to Ickes. During the altercation, Paniagua's cell phone and Ramos's scanner disappeared.
After the shooting, one of the men Lucero Rangl had seen earlier ran past. He looked at Rangl and made a gesture of zipping his mouth shut. Rangl testified she was frightened for her family. The day after the shooting, Rangl identified Godoy as a man she had seen outside the apartment the previous afternoon.
Officers arrived at the apartment shortly after the 911 call. Ramos told officers Godoy had shot him.
Ramos was transferred to the hospital, where he was treated for gunshot wounds to his abdomen. His injuries included damage to his liver, right kidney, and intestines. Doctors removed one bullet from his abdomen during a three-hour surgery.
An investigator with the district attorney's office interviewed Ramos during his hospital stay. According to Ramos, Gonzales told him they needed to talk and told him to sit down. Godoy came in and they talked about Ramos's debt to Rick. Ramos said he had paid the debt and Godoy owed the rest to Rick. Ramos asked Gonzales what he wanted to do about it. Gonzales looked at Godoy and nodded his head, and Godoy pulled out a handgun from his coat and shot Ramos.*fn2
Following his release from the hospital, Ramos entered federal protective custody. In 2000 Ramos had worked as a federal informant. He again worked with authorities in 2007 for money and to obtain favorable treatment for his son. During the trial, Ramos was in a safe house and had been off drugs for over a year.
Paniagua, arrested for a probation violation after the incident, spoke with police detectives. In describing the shooting, Paniagua stated Godoy picked up Ramos's scanner, Ramos protested, and Godoy shot Ramos in the upper thigh. Several shots followed. During the shooting, Gonzales held a knife, flicked open.
Paniagua entered a witness protection program. He was arrested for domestic violence against Ickes a month after the shooting, sentenced to prison, and released in 2008.
Paniagua feared retaliation if he testified. When Paniagua took the stand for his preliminary hearing testimony, Gonzales said in Spanish, "Remember your children."
Two days after the shooting, officers searched Gonzales's house. They discovered a .25 caliber, semiautomatic pistol hidden under a mattress. The gun was loaded with two cartridges. In Gonzales's bedroom they found Paniagua's cell phone and a loaded 12-gauge shotgun. Officers also uncovered gang paraphernalia, including a photo of Gonzales garbed in blue and holding a shotgun draped in a blue bandana.
Officers searched Godoy's apartment shortly after the shooting. They located shells for a 12-gauge shotgun and several .25-caliber bullets. They found the stock to a shotgun that matched a shotgun found at Gonzales's home. Officers did not find any guns. They found gang paraphernalia: photos of Godoy wearing gang clothing and making gang signs.
Gonzales spoke with a district attorney's investigator about potential prosecution witnesses. He said with a smile that "it would be a lot of people to eliminate" and "that's kind of hard to do." Gonzales also stated that the shooting was more personal than gang related.
The investigator testified that Gonzales "had gone through steps" to drop out of the Mexican Mafia and was believed to be writing a book about his experiences. Gonzales was the intended victim of a jailhouse attack because of his dropping out of the gang and writing a book.
During examination by the prosecution, the investigator explained the Mexican Mafia is a gang operating in prisons. Surenos are "soldiers" for the Mexican Mafia. The investigator testified not every Sureno group is connected to the Mexican Mafia, and stated the plot against Gonzales involved Surenos who were not part of a local group.
The bullet removed from Ramos was from the .25-caliber pistol recovered from under Gonzales's mattress. The pistol could hold eight cartridges in the magazine and one in the firing chamber. The four cartridge cases recovered from the crime scene were consistent with tests from the pistol, but they did not show individual characteristics sufficient to make a positive identification. The unfired cartridges and cartridge cases found in Godoy's apartment sported an incomplete head stamp indicating the manufacturer of the ammunition. Gunshot residue was found on Godoy's hands.
The Tale of the Kites
Leandro Escarsega, a county jail inmate, served time in 2007 for possession of methamphetamine for sale. He knew Godoy as a friend and was associated with the Surenos. After speaking with Ramos's son, Raul Ramos, Jr., Escarsega decided Paniagua, a friend, was in danger because of the shooting. Escarsega took action, contacting Gonzales and telling him if he needed a favor Escarsega would help him. To convince Gonzales of his sincerity, Escarsega told him Paniagua owed him money.
As Escarsega and his cell mate cleaned outside the cells, Gonzales passed a secret note, in jail parlance a "kite," under his cell door. Escarsega's cell mate picked up the note and gave it to Escarsega once they returned to their cell. The kite, addressed to "Leo 410" (Escarsega's cell number), told him to find some people to say that Paniagua had a gun and was going to shoot Gonzales. Under Gonzales's scenario, the same gun shot Ramos. The kite also said "[Paniagua] is a rat anyways." Escarsega told Detective DeLao about the kite and the detective made a copy.
Escarsega received a second kite from Gonzales, addressed to "Squeaky," a friend of Escarsega. The kite contained a jail cell number and three dots underlined twice. The message asked Squeaky to testify that he put the gun under Gonzales's mattress. The kite also said, "[I]f I get found guilty I'm going to get life." After showing the kite to DeLao, Escarsega delivered the message to Squeaky.
Escarsega wrote a kite to Gonzales, stating: "I know you don't know me. If there is anything I can do for you, let me know. . . . I can get that cake you wanted. How much is that cake worth? How much will you pay if I deliver . . . the cake." Gonzales sent a reply kite stating: "If you want to work with me, then just name the price, how much can you get it for me, and how much do you want in return . . . let[']s work out the details and agree upon something."
While Godoy was in the booking area waiting to be transported to court, he began arguing with Paniagua, who was in a booking cell. Godoy said, "[T]hat guy is a punk, that's why I shot his dad."
Detective DeLao's Testimony
DeLao, a member of the gang violence suppression unit of the Woodland Police Department, testified about the Mexican Mafia and the Surenos. According to DeLao, gangs strive to maintain respect through fear and intimidation. The members protect and support one another, acting as lookouts during criminal activity.
DeLao testified he believed Godoy belonged to the Sureno gang. Godoy had gang tattoos on his chest, back, neck, and hands.
Gonzales, DeLao testified, dropped out of the Mexican Mafia, but was a veteran and gang mentor. Like Godoy, Gonzales sported numerous gang tattoos.
After the prosecution posed a hypothetical, DeLao testified the shooting benefited the Surenos by instilling fear. According to DeLao, one member's failure to collect a drug debt would discredit the entire gang. Independent drug dealers do not have a similar need to maintain their reputations. During cross-examination, DeLao testified an active Mexican Mafia member would not be interested in crimes such as the charged offenses.
Gonzales testified he became involved in gangs after he moved to Brawley at age 12. He became involved with the Mexican Mafia but dropped out in 1997. After Gonzales left the gang, there were attempts on his life.
Over the years, Gonzales spent time in prison for various crimes. Gonzales, addicted to heroin, was arrested in 2005 and entered a drug rehabilitation program. His drug use led to his having to leave the program.
As to the current charges, Gonzales learned his son loaned Gonzales's tools to Paniagua. To retrieve the tools, Gonzales asked Godoy to drive him to the apartment where Paniagua was staying. Previously, Gonzales told Paniagua he would beat him up if he did not get the tools back.
The pair drove to the apartment, where they talked to Paniagua about the tools. They began arguing and, according to Gonzales, Godoy (aka "Cholo") and Paniagua began fighting. Paniagua offered Gonzales an "eight ball" of methamphetamine and led the men to the apartment. Inside, they found several people, including Ramos, who began talking to Godoy.
According to Gonzales, he did not have a knife and did not carry knives. Because he was on parole and probation, Gonzales did not want to be involved with guns or shooting. Prior to the shooting, Gonzales did not know Godoy had a gun or intended to shoot Ramos.
Gonzales, who was talking to Paniagua, heard a gunshot and then left. Gonzales and Godoy ran to Godoy's van, which promptly ran out of gas. They walked back to Gonzales's sister's house and drank that evening; Gonzales went home that night and got drunk the following day.
Two days after the shooting, Godoy smoked methamphetamine and began acting paranoid. Gonzales told Godoy's friend to take away Godoy's gun. Gonzales hid the gun under his mattress until he could get rid of it. Officers arrested the duo the same day.
Gonzales admitted writing the kites addressed to Squeaky and Godoy, and responding to Escarsega's kite. However, he denied writing the first kite.
According to Gonzales, in the kite to Squeaky, he was not sure who had given him the gun and did not want his son charged with it. Gonzales figured Squeaky "can just ride it."*fn3
Gonzales explained Godoy was "not the sharpest knife in the drawer," so in his kite to Godoy he was only telling him what actually happened.*fn4 Gonzales believed Godoy intended to pursue an alibi defense. In the kite Gonzales said: "I've been doing a whole lot of thinking and studying the law" and they "can't beat the charges, but we can fix it where we don't get life sentence, either one of us, but you have to listen to me and do what I say." Gonzales told Godoy to say he took the gun away from Paniagua after Godoy gave Gonzales a ride to the apartment so that Gonzales could talk to Paniagua about some tools.
During cross-examination, Gonzales testified the mark on the kite to Godoy meant "Southerner," a mark Gonzales had tattooed near his eye. In the kite, Gonzales referred to "a couple of girls who are going to help out, so don't trip." He explained this referred to witnesses who were going to testify to "the way I perceived it from gathering whatever happened." Gonzales asked Squeaky to help him avoid being "blamed for the gun."
Gonzales testified his reply to Escarsega referred to drugs he wanted Paniagua to bring to jail.
Gonzales, when asked about respect, stated "nobody would disrespect me." Gonzales testified: "Whenever you become a member of the [Mexican] Mafia, you're held to higher esteem by everybody. . . . And once you make it to the top, there's nobody that can touch you."
Godoy also testified. He stated he had a problem with methamphetamine and had landed in juvenile hall and the Youth Authority. While in custody at the Youth Authority, Godoy became a member of the Sureno gang. Godoy knew Gonzales as a family member.
The day of the shooting, Gonzales asked Godoy for a ride to pick up his tools. Before they left, they drank beer and Godoy used methamphetamine. After they arrived at the apartment, Paniagua spoke to them from the back patio.
Paniagua, who was seated, pulled a gun from his pocket. Godoy grabbed the gun from Paniagua and put it in his jacket pocket. Paniagua offered to give Gonzales some drugs as security for the tools.
When they went inside, Godoy saw Ramos, whom he recognized as someone who owed Gonzales money for drugs. After Godoy picked up a scanner from the table, Ramos grabbed him. Godoy heard a gunshot from Paniagua's direction. Godoy shot Ramos "less than six" times while Ramos was "standing right in front of" him. As Godoy began to run, he heard more gunshots.
Godoy and Gonzales drove away in the van, which ran out of gas. They walked home and began drinking. When Godoy woke up the next morning, the gun was no longer in his pocket.
Godoy denied receiving a kite from Gonzales in jail but acknowledged many of the directions in the kite were consistent with his testimony.
Verdict and Sentence
The jury was presented with seven counts and related enhancements, as follows:
Count 1 charged defendants with attempted murder and enhancements for furthering a criminal street gang; Godoy with discharging a firearm and the personal infliction of great bodily injury; and Gonzales with discharge of a firearm by a principal, causing great bodily injury. (Pen. Code, §§ 187, subd. (a), 664, subd. (a), 186.22, subd. (b)(1), 12022.53, subd. (d), 12022.7, subd. (a), 12022.53, subds. (d), (e)(1).)*fn5
Count 2 charged defendants with assault with a semiautomatic firearm (on Ramos) and enhancements for furthering a criminal street gang; and Godoy with the personal use of a firearm and the personal infliction of great bodily injury. (§§ 245, subd. (b), 186.22, subd. (b)(1), 12022.5, subd. (a), 12022.7, subd. (a).)
Count 3 charged defendants with assault with a semiautomatic firearm (on Paniagua) and enhancements for furthering a criminal street gang; and Godoy with the personal use of a firearm. (§§ 245, subd. (b), 186.22, subd. (b)(1), 12022.5, subd. (a).)
Count 4 charged defendants with residential robbery and enhancements for furthering a criminal street gang; Godoy with the personal discharge of a firearm, causing great bodily injury; and Gonzales with discharge of a firearm by a principal, causing great bodily injury. (§§ 211, 212.5, subd. (a), 186.22, subd. (b)(1), 12022.53, subd. (d), 12022.7, 12022.53, subds. (d), (e)(1).)
Count 5 charged defendants with burglary and enhancements for furthering a criminal street gang; Godoy with personal use of a firearm; and Gonzales with the use of a deadly weapon. (§§ 459, 186.22, subd. (b)(1), 12022.5, subd. (a), 12022, subd. (b)(1).)
Count 6 charged defendants with false imprisonment by force or violence, and enhancements for furthering a criminal street gang; Godoy with the personal use of a firearm; and Gonzales with the use of a deadly weapon. (§§ 236, 237, subd. (a), 186.22, subd. (b)(1), 12022.5, subd. (a), 12022, subd. (b)(1).)
Count 7 charged Gonzales with possession of a firearm by a person previously convicted of a serious felony. (§ 12021.1, subds. (a), (b).) The information also alleged Gonzales served six prior prison terms, had been convicted of two prior serious felonies, and had committed a serious felony after being convicted of two prior serious felonies. (§§ 667.5, subd. (b), 667, subds. (b)-(i), 1192.7, 667, subd. (a)(1).)
The jury found both defendants guilty as charged in counts 1, 2, 3, and 6, and found Gonzales guilty as charged in count 7. The jury found defendants not guilty of robbery or burglary as charged in counts 4 and 5. The jury deadlocked on the gang enhancements, which the court dismissed. The court found the prior conviction allegations true.
The court sentenced Gonzales to 25 years to life on count 1; consecutive tripled aggravated terms of 27 years to life for each of counts 2 and 3; a consecutive sentence of 25 years to life on counts 6, plus one year for the use of a deadly weapon; a consecutive sentence of 25 years to life on count 7; 10 years for the two prior serious felony convictions; and six years for the six prior prison terms, for a total sentence of 146 years to life.
The court sentenced Godoy to seven years to life on count 1, plus 25 years to life for the firearm enhancement; a consecutive upper term of nine years on count 2, designated the principal term, plus 13 years for the enhancements; a consecutive one-third the middle base term, or two years, on count 3, plus one year four months for personal use of a firearm; and a consecutive one-third the middle base term, or eight months, on count 6, plus one year four months for the personal use of a firearm. The determinate terms totaled 27 years four months, to be served prior to the indeterminate term of 32 years to life.
Defendants filed timely notices of appeal.
DISCUSSION Assault with a Firearm and Attempted Murder
Defendants contend the acts forming the basis of the assault with a deadly weapon conviction are inseparable from the acts underlying the attempted murder conviction, necessitating vacation of their assault convictions. In the alternative, defendants argue their convictions violate section 654. According to defendants, both crimes took place during a continuous, uninterrupted course of conduct.
In determining whether defendants have been improperly subject to multiple convictions, we consider whether sufficient evidence supports the convictions. (People v. Smith (2005) 37 Cal.4th 733, 745.) We presume in support of the judgment every fact the jury could reasonably deduce from the evidence. Even if contrary conclusions or inferences can be drawn, we cannot reverse the judgment if the circumstances reasonably justify the jury's conclusion. (People v. Perez (1992) 2 Cal.4th 1117, 1126; People v. Bloom (1989) 48 Cal.3d 1194, 1208.)*fn6
At trial, Ramos testified Godoy first shot him after he grabbed for Godoy's gun. After the first shot, Paniagua told Godoy, "'Hey what the fuck man why you do that man?' And then I don't know if he pointed that [gun] on me and then [Ramos] -- I know [Ramos] told him something. [Ramos] said something too. '. . . you shoot me.' . . . [¶] . . . [¶] . . . the next thing that I saw . . . he started shooting [Ramos]." Ramos moved toward the bedroom to protect his wife. Godoy fired additional shots, hitting Ramos in the back, arm, and leg.
From this sequence of events, the jury could conclude Godoy fired the first shot in an attempt to intimidate and cow Ramos following their altercation over the scanner. Godoy's action supported the jury's finding of an assault with a firearm.
Instead of backing down, Ramos turned his back on Godoy and moved toward his wife in the bedroom. After Ramos turned, Godoy fired more shots into Ramos. These later shots evinced a clear intent to kill, supporting the jury's finding of premeditated attempted murder. Rather than one continuous spate of shooting, the evidence at trial supported the jury's conclusion that Godoy's actions resulted in an assault with the first shot, and attempted murder with the following shots.
Defendants also argue that even if the convictions were proper, the court erred in imposing consecutive sentences on counts 1 and 2. In imposing consecutive sentences on the two counts the court found they were based on separate sets of gunshots.
The prohibition against multiple punishment applies where there was a course of conduct that violated more than one statute but nevertheless constituted an indivisible transaction. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. (People v. Perez (1979) 23 Cal.3d 545, 551.) We uphold the trial court's finding of a divisible course of conduct if it is supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
As noted, ante, substantial evidence supported the inference that Godoy fired the first shot to intimidate and humble Ramos. Instead, Ramos turned and walked toward the bedroom, at which point Godoy fired additional rounds, intending to kill Ramos. Under this scenario, Godoy fired the first shot and the later shots with different motives, constituting two separate transactions.
In People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), the appellate court upheld consecutive sentences for assaults with a firearm on a police officer. The defendant, as he drove, shot his weapon. He then resumed driving, paused for about a minute, and fired again. A few seconds later the defendant fired a third time. (Id. at p. 366.) The court found each shot could be punished separately because the defendant paused prior to each shot, giving him time to reflect and consider his next action. The court considered these separate acts, noting the defendant's conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to the victim and nearby freeway drivers. Under these circumstances, "[t]o find section 654 applicable to these facts would violate the very purpose for the statute's existence." (Trotter, at p. 368.)
Defendant Gonzales argues that, unlike the defendant in Trotter, Godoy fired continuously at Ramos before fleeing the apartment: "He did not interrupt, and then resume, the assaultive conduct." We disagree. Godoy fired at Ramos once and then, as Ramos turned and moved toward the bedroom, fired additional rounds. It is the defendant's intent and objective, not the temporal proximity of the offenses, that determine whether the transaction is indivisible. (People v. Harrison (1989) 48 Cal.3d 321, 335.) As in Trotter, Godoy paused between shots, and his conduct became more egregious with the second fusillade at the retreating Ramos.
Finally, defendant Gonzales argues counsel performed ineffectively in failing to object to the sentence under section 654. However, since we find no section 654 violation, we find no prejudice from counsel's failure to object.
Defendants contend the evidence of gang membership infected the trial with highly prejudicial, completely irrelevant evidence. The trial court, defendants argue, abused its discretion by denying Gonzales's motion to exclude expert gang evidence, the admission of which denied defendants their due process rights.
Gonzales concedes neither he nor his counsel requested that the court bifurcate the gang evidence. Instead, Gonzales filed, in pro. per., a motion to exclude expert gang evidence, which the court denied. The issue of gang evidence was considered at several stages of the trial.
The superior court denied a section 995 motion to set aside the gang enhancements. The court found sufficient evidence to support the enhancements.
In his motion to exclude expert testimony regarding gang evidence, Gonzales argued there was no evidence to indicate the attempted murder was gang related. According to Gonzales, the prosecution sought to introduce the evidence "for the opprobrious implications that they invite to the trial, without shedding any light to any of the facts of the case. Such evidence could only be inflammatory in its context." Gonzales's motion asked the trial court to weigh the prejudicial impact of the evidence against its probative value.
In denying the motion, the trial court stated: "[B]oth legislature and the Court of Appeal have already spoken and I am bound by the process as it stands, which is that these types of charges can be brought, this type of testimony can be used . . . I allowed it during the preliminary hearing because that's the state of the law, and there is an inability to go around changing the state of the law at the trial court level . . . . [¶] I'm not the one who determines what the law says . . . . There is no impropriety in the way the People are presenting this case, how they pled it, what evidence they intend to put on by the gang experts . . . . [¶] So a motion to exclude gang testimony, essentially to strike the gang enhancements that would have to be something that a higher court deals with. I'm unable to do that . . . ."
During the trial, the court held an evidentiary hearing on the admissibility of gang expert testimony prior to hearing from Detective DeLao. The court found DeLao possessed sufficient expertise on local gangs to testify on gang-related issues.
The court denied a motion for acquittal under Penal Code section 1118.1, finding sufficient evidence that Godoy was a gang member and Gonzales assisted Godoy for the benefit of a criminal street gang. The court also denied a motion for a mistrial based on evidence of Gonzales's involvement in the Mexican Mafia. The court found the probative value of the evidence was not substantially outweighed by its prejudicial impact under Evidence Code section 352.
The jury deadlocked on the street gang enhancements on all counts. The court declared a mistrial on the gang enhancements.
Defendants argue Gonzales's in pro. per. motion was "in effect" a motion to bifurcate the criminal street gang enhancements. Defendants fault the trial court for failing to exercise its discretion and, instead, concluding it lacked authority to exclude the gang evidence.
However, Gonzales's motion sought to exclude gang expert testimony, not all the gang evidence. The motion did not request that the court bifurcate the gang evidence. Instead, it challenged the relevancy and prejudicial impact of the expert's gang testimony.
In the alternative, defendants argue trial counsel performed ineffectively in failing to request bifurcation of the gang evidence. To prevail on a claim of ineffective assistance, defendants must show substandard performance and prejudice resulting from that performance. (People v. Jennings (1991) 53 Cal.3d 334, 375.) Therefore, we consider whether defense counsel performed ineffectively in failing to request bifurcation of the gang enhancements.
The trial court possesses the discretion to bifurcate criminal street gang enhancements from the underlying offense. To establish the street gang enhancement, the prosecution must prove some facts to support the enhancement in addition to the elements of the underlying crime. (People v. Hernandez (2004) 33 Cal.4th 1040, 1044 (Hernandez).)
Defendants argue "This case had nothing to do with gangs" and label the admitted gang evidence irrelevant to the charged crimes; therefore, bifurcation was required. In the alternative, defendants argue, even if the evidence was relevant, the prejudicial impact outweighed the probative value of the evidence.
Evidence of gang membership is often relevant to the charged offense. Evidence of gang affiliation, including membership, signs, symbols, and practices, can help prove identity, motive, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice is dispelled, and bifurcation is unnecessary. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Here, evidence of Gonzales's membership in the Mexican Mafia and Godoy's membership in the Surenos was relevant to explain the roles of each defendant in the crimes and to explain the fear and intimidation the two men provoked in various witnesses.
The prosecution presented evidence of Gonzales's former gang membership in an effort to explain why he accompanied Godoy to recover Ramos's drug debt. As a veteran of the Mexican Mafia, Gonzales took the lead in confronting Ramos while Godoy held the gun. Gonzales nodded in approval prior to Godoy's firing the first shot. In addition, Gonzales's gang membership explained his insistence on recovering Ramos's drug debt.
As for Godoy, his membership in the Surenos and the concomitant responsibility for upholding the gang's status provided motivation for his shooting of Ramos. Ramos's act of disrespecting Godoy, by not backing down, could reasonably be interpreted as disrespecting the gang and leading to Godoy's potentially lethal retaliation.
The gang evidence explained the fear and intimidation of the witnesses to the shooting. During and after the shooting, the men threatened Ickes and Rangl. Ickes stated she did not want to be a witness because "[t]hings happen to witnesses." Ramos, Paniagua, and Ickes were reluctant to testify, necessitating introduction of their previous statements. Defendants' gang status provided a plausible explanation for the witnesses' desire to avoid testifying and for the variations in their recollection of events.
Moreover, even if the trial court granted a request for bifurcation, some gang evidence still would have been before the jury. Defendants were charged with robbery and burglary. Paniagua testified one of the men took his blue belt, which he wore to show his gang status as a Sureno. In addition, police searches of Gonzales's and Godoy's residences yielded gang paraphernalia.
Given the relevance of much of the gang evidence, defense counsel could have determined a motion to bifurcate the gang enhancements would have been denied. Accordingly, we find no ineffective assistance of counsel.
Gonzales argues the trial court erred in denying his motion to exclude evidence of the kites, the missives written while he was in jail. The kites, Gonzales contends, had a devastating effect on his defense, requiring reversal.
Defense counsel filed a motion in limine to exclude evidence of the kites as violating Gonzales's Sixth Amendment right to counsel. The trial court held an Evidence Code section 402 hearing to determine the kites' admissibility.
Leandro Escarsega testified he was in custody with Gonzales in 2007. While in custody, Escarsega learned his friend Paniagua was in danger. Escarsega exchanged kites with Gonzales. He gave the first kite to Detective DeLao, who made copies and returned the original. DeLao told Escarsega to continue the correspondence.
When Escarsega was asked if DeLao told him to keep doing what he was doing, Escarsega testified: "I told him I was going to keep doing it. He has no authority over me whatsoever, I'm not working for him." DeLao told Escarsega he was not DeLao's agent or informant. After the first kite, DeLao did not tell Escarsega to recontact Gonzales.
Escarsega exchanged three or four more kites with Gonzales and turned them over to DeLao. Escarsega testified that contacting Gonzales was all his idea.
In the first kite, Escarsega told Gonzales that he knew Paniagua and would be willing to help Gonzales with "anything." Escarsega said, falsely, that Paniagua owed him money, but his intent was to set Gonzales up. Escarsega knew Gonzales had been arrested in connection with the shooting of Ramos.
Escarsega later attempted to record a conversation with Gonzales, using a recording device supplied by federal law enforcement. DeLao met with Escarsega about three or four times.
The trial court denied the motion to exclude the kites. The court compared the situation to one in which officers direct an inmate to attempt to get information from a defendant. The court concluded: "But this is a lot more like somebody approaching the police and saying, I've been doing a little investigation on my own and [the] police officer says . . . if you ever find something out, give me a call. . . . [¶] There was no testimony that Officer DeLao started setting up and directing things, we didn't hear any of that until we got to the federal agent, and that seems to be after these notes were passed."
We review a trial court's evidentiary determinations under the sufficiency of evidence standard of review. We do not evaluate the credibility of witnesses, resolve conflicts in testimony, weigh the evidence or draw inferences, leaving those decisions to the trier of fact. We uphold the trial court's findings, whether express or implied, if supported by substantial evidence. (People v. Medina (2009) 46 Cal.4th 913, 919; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1076; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Law enforcement officers may not deliberately elicit statements pertaining to a pending charge after a defendant has evoked the right to counsel. (Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246].) To succeed in a constitutional challenge, if a defendant has made statements to an informant, the defendant must demonstrate that the police and the informant took some action, "beyond merely listening, that was designed deliberately to elicit incriminating remarks." (Kuhlmann v. Wilson (1986) 477 U.S. 436, 459 [91 L.Ed.2d 364] (Kuhlmann).)
In Kuhlmann, the officer instructed the informant only to listen to the defendant to ascertain the identities of others involved in a robbery and murder. Law enforcement had other solid evidence of the defendant's participation. The informant followed the instructions, asked no questions of the defendant about the pending charges, and only listened to the defendant's spontaneous and unsolicited statements. (Kuhlmann, supra, 477 U.S. at pp. 439-440.) Under this set of facts, the Supreme Court found no Sixth Amendment violation. (Kuhlmann, at p. 436.)
Gonzales argues Detective DeLao intentionally obtained kites passed between Gonzales and Escarsega while he was in custody. According to Gonzales: "DeLeo [sic] allowed Escarseca [sic] to turn over kites written by [Gonzales], but allowed him to initiate written contact with [Gonzales] and turned over [Gonzales's] written responses. . . . [¶] . . . After copying the first kite, DeLeo told Escarseca to 'keep doing what you are doing,' and returned two more times to make copies of kites received from [Gonzales]. Under these circumstances, DeLeo violated [Gonzales's] Sixth Amendment right to counsel by using Escarseca to intercept [Gonzales's] written communications."
However, testimony at the hearing supports the trial court's determination that the kites were not sent at the behest of law enforcement, but on Escarsega's own initiative. When DeLao told Escarsega to "keep doing what you [are] doing," Escarsega interpreted this to mean he should keep the communications going because failure to do so could make things "worse."
DeLao did not instruct Escarsega to pen the first kite; Escarsega gave it to the detective after the fact. Escarsega told DeLao he was going to keep sending kites, and he subsequently turned over the kites to the detective. As in Kuhlmann, law enforcement did not instigate the communications, but simply read the missives. Escarsega was not acting at DeLao's direction. As such, DeLao's reading of the kites written by Escarsega did not violate Gonzales's right to counsel.
In a related claim, Gonzales argues he would not have testified at trial but for the erroneous admission of the kites, violating his Fifth Amendment right against self-incrimination. In support, Gonzales relies on Harrison v. United States (1968) 392 U.S. 219 [20 L.Ed.2d 1047] (Harrison).)
In Harrison, the Supreme Court found the defendant's testimony at trial was impelled by the admission of illegally obtained confessions. (Harrison, supra, 392 U.S. at p. 222. ) The court concluded the defendant's testimony was the "fruit of the poisonous tree" (ibid.), which would be tainted unless the testimony was obtained "'by means sufficiently distinguishable' from the underlying legality 'to be purged of the primary taint.' [Citation.]" (id. at p. 226).
However, we conclude the admission of the kites did not violate Gonzales's Sixth Amendment rights. Therefore, his subsequent testimony, even if partly in response to the admission of the kites, was not "fruit of the poisonous tree".*fn7
The judgments are affirmed as to both Gonzales and Godoy.
We concur: BUTZ , J. MAURO , J.