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The People v. Manuel Jose Cervin


March 27, 2012


(Super. Ct. No. 07F02356)

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

P. v. Cervin



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Manuel Jose Cervin of second degree murder (Pen. Code, §§ 187, 189; unspecified section references that follow are to the Penal Code) and found defendant committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury also found true a firearm use enhancement (§ 12022.53, subds. (b), (c), (d), (e)(1)), and the trial court subsequently imposed an aggregate sentence of 40 years to life.

On appeal, defendant contends that (1) the court violated constitutional guarantees in refusing to bifurcate the gang allegation, (2) a gang expert offered improper opinion testimony, (3) there is insufficient evidence to support the gang enhancement, and (4) the court erred in instructing the jury on the natural and probable consequences doctrine. None of these claims has merit and we therefore affirm the judgment.


Late one night, as the victim and his girlfriend drove up to the victim's house and prepared to turn left into the driveway, they found their way blocked by an occupied car. When the car did not move, the victim honked the horn. The blocking car drove down the street, the couple turned into the driveway, and the victim got out. The other car, which had driven forward a few houses, backed up and blocked the driveway again. The driver rolled down the window and the occupants said something to the victim, who raised his hands and yelled, "What the fuck?" The occupants of the car were smirking. The passenger in the front seat leaned toward the driver's side of the car, pointed a gun out of the window and shot the victim, killing him. The car then sped off.

A subsequent investigation revealed defendant to be the driver of the car and a leader of a gang associated with the Nortenos. The three other passengers were fellow gang members. One had shown defendant a gun earlier in the day. The group subsequently went to a park and then a pizza parlor where defendant admired the video game shooting skills of another person, and stated that he wanted to shoot someone.

An information charged defendant with first degree murder and alleged a firearms and gang enhancement.

At trial, an expert witness described gang behavior, particularly that of the Nortenos. In response to a series of hypothetical questions, he testified that gang members often have their weapons with them and occupants of a car would have known of their presence. He explained the importance of maintaining respect in a gang, and said that a gang member would need to respond to any perceived disrespect to avoid being thought of as weak.

Defendant admitted being a gang member and the driver of the car, but argued that the shooting was unconnected to gang activity.

The jury acquitted defendant of first degree murder but convicted him of the lesser included offense of second degree murder. It also found the charged enhancements to be true. The court sentenced defendant to an aggregate prison term of 40 years to life, and this appeal followed.



Refusal to Bifurcate Gang Allegations

Defendant contends that the trial court erred in denying his motion to bifurcate the gang allegations from the substantive offense. There was no error.

"In cases not involving the gang enhancement, [the California Supreme Court has] held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation--including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.)

"Thus, as a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative." (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) The trial court has broad discretion in denying a motion to bifurcate a charged gang enhancement. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.)

Here, the prosecution asserted that the victim was shot because he "disrespected" defendant in the presence of other gang members. The gang evidence was necessary to explain this state of mind and the need to maintain status and honor within his gang.

The trial court recognized that gang evidence would have some prejudicial effect and added that the case was "not as clear cut as a number of these cases are. Does that mean that it should be excluded because it may not fit the general parameters that we're used to seeing in gang type cases? I think not."

The trial court's ruling was well within its discretion. The expert explained that gang members require respect. A car honking at a vehicle being driven by a gang member was viewed in gang culture as an act of disrespect, necessitating a response. A gang leader simply did not have the option of ignoring the honking if other gang members were present; to do so would demonstrate weakness. Unlike the situation in other cases cited by defendant, such as People v. Albarran, supra, 149 Cal.App.4th at pages 225-229, the evidence here supported a theory of gang motivation. "It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect.'" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384; accord People v. Vang (2011) 52 Cal.4th 1038, 1049-1050, fn. 5; People v. Gonzalez (2006) 38 Cal.4th 932, 945-946.)

The court determined that this gang evidence was highly probative and outweighed any potential prejudice because it provided a context for the shooting. Consequently, the court did not err in denying defendant's motion to bifurcate the gang enhancement from the substantive offense.


Testimony of Gang Expert

Defendant contends that his motion for new trial should have been granted because the gang expert witness gave improper opinion evidence and incorrectly defined "criminal street gang." We assume for purposes of argument that defendant's claims have been preserved for appeal and are the proper basis for a motion for new trial, but conclude that none of these contentions has merit.

A. Evidence of defendant's knowledge of a weapon in the car Defendant asserts that the gang expert improperly opined that defendant knew of a weapon in the car. Defendant misreads the expert's testimony, which related to a series of questions involving hypothetical questions about a hypothetical group of gang members.

The prosecutor outlined a hypothetical situation mirroring the facts of the charged case and asked the gang expert whether a shooting was foreseeable. The expert described the "gang mentality," gang members' insistence on respect, and the range of possible responses. The expert testified that gang members would interpret someone throwing their hands up and asking "What the fuck?" as a challenge.

The prosecutor then asked, "So, talking about whether or not shooting is foreseeable, . . . under that hypothetical of facts [previously outlined], how is your opinion altered at all if you learn that earlier in the day that [a] carload of Nortenos was at a buddy's house looking at a handgun?"

The gang expert replied, "That's going to tell me that they probably did have handguns with them. [¶] They're looking at a handgun, and they're handling this. And if it's one of their guns, they're not going to leave their guns someplace else; they're going to take it with them so they don't lose it. They have it. They can use it whenever they want to use it, or give it to whoever they want to give it to. Or whatever. [¶] But if they had it earlier in the day, you can best believe that they had it at night in case something happens."

The prosecutor asked, "Would everyone know it's in the car?" and the expert responded, "Sure."

Contrary to defendant's claim, the expert did not express an opinion about defendant's guilt or innocence; rather, he responded to hypothetical questions, a practice that the California Supreme Court recently endorsed in People v. Vang, supra, 52 Cal.4th 1038. In that case, the court noted that hypothetical questions must be based on the evidence in order to be relevant and helpful to the jury. (Id. at p. 1046.) "[T]his rule means that the prosecutor's hypothetical questions had to be based on what the evidence showed these defendants did, not what someone else might have done. The questions were directed to helping the jury determine whether these defendants, not someone else, committed a crime for a gang purpose." (Ibid.)

"The jury was as competent as the expert to weigh the evidence and determine what the facts were, including whether the defendant[] committed the assault. So he could not testify directly whether [the defendant] committed the assault for gang purposes. But he properly could, and did, express an opinion, based on hypothetical questions that tracked the evidence, whether the assault, if the jury found it in fact occurred, would have been for a gang purpose. 'Expert opinion that particular criminal conduct benefited a gang' is not only permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement." (People v. Vang, supra, 52 Cal.4th at p. 1048.)

Vang disapproved People v. Killebrew (2002) 103 Cal.App.4th 644, a case relied upon by defendant. (People v. Vang, supra, 52 Cal.4th at pp. 1047-1049; see also People v. Gonzalez, supra, 38 Cal.4th at pp. 946-948.) Here, the expert expressed an opinion in response to a hypothetical question; he did not express an opinion about defendant himself, nor did he give an opinion on how the jury should decide the case. (See Vang, at p. 1049.) Defendant's claim of error is meritless.

B. Evidence of "road rage"

Defendant contends that the gang expert exceeded the scope of proper testimony in responding to questions about road rage. The record demonstrates otherwise.

The prosecutor asked the expert whether a carload of Nortenos would consider a car that honked at them to be showing disrespect. The expert replied affirmatively and explained, "We've all been honked at, and we all get irritated by it. It's a natural reaction, but in the gang element, it's [a] reaction of showing disrespect. If someone's honking at you or confronting you, it's a nonverbal assault on you, that somebody's challenging you or being aggressive on you, because they're honking at you and disrespecting you." He said that if he were a gang member and someone honked at him, "I am going to be mad, yeah. I'm going to say, 'What are you honking at me for?' And probably be confrontational . . . and escalate the pain," particularly if other Norteno friends were in the car; a driver could not let the matter go under those circumstances.

During cross-examination, defense counsel asked the gang expert, "So it's not possible under that same hypothetical fact scenario for the driver of the car with the four Nortenos in it to, in his own mind, simply intend to get out and fight the person who has thrown up his hands and said, 'What the fuck?" The expert replied, "It's possible. But it didn't happen, though." He added, "I mean, it's possible in your scenario, but, yes, the door is open. The driver could have gotten out and fought him, yeah. But that isn't in fact what happened."

Defendant asserts that it was improper for the expert to express his opinion that this particular shooting was not a matter of road rage. Again, however, the colloquies between the witness and the attorneys centered on hypotheticals that tracked the facts of the case. The expert did not express an opinion on defendant's particular intent, and in fact agreed that under defendant's scenario, it was possible for someone to intend only to fight. There was no error.

C. Definition of "criminal street gang"

Defendant asserts the expert erroneously defined the term "criminal street gang," thereby nullifying the prosecution's duty to prove each element of the offense. Defendant ignores the fact that the trial court expressly told the jury that its instructions would define any terms with legal meanings, and that the jury was to follow these definitions. (CALCRIM No. 200.) The court's instructions included a definition of "criminal street gang" and its elements, and explicitly informed the jury of the prosecution's burden of proving each allegation. (CALCRIM No. 1401.) We presume the jury followed these instructions (People v. Thompson (2010) 49 Cal.4th 79, 138), and therefore, even if we assume the expert gave an erroneous definition, defendant cannot establish prejudice.


Sufficiency of the Evidence

Section 186.22, subdivision (b)(1), the gang enhancement statute, requires that the underlying crime be "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."

Defendant points out that the prosecution offered no evidence, other than the gang expert's testimony, that the shooting was committed to "promote, further and assist" the criminal conduct of the Nortenos. Expanding on the arguments we have already addressed, he asserts that this testimony is insufficient to support his conviction. The California Supreme Court has held otherwise.

"'Expert opinion that particular conduct benefited a gang' is not only permissible but can be sufficient to support [a] . . . section 186.22, subdivision (b)(1), gang enhancement." (People v. Vang, supra, 52 Cal.4th at p. 1048.)

The expert's testimony was reasonable, credible and of solid value, providing substantial evidence from which a reasonable trier of fact could find the gang enhancement to be true. (See People v. Albillar (2010) 51 Cal.4th 47, 59-60.) Defendant's claim to the contrary is unpersuasive.


Natural and Probable Consequences Doctrine

Defendant contends the court erred in instructing the jury on the natural and probable consequences doctrine because that theory is applicable only in cases of escalating violence, not when the target crime is simple assault. We disagree.

An individual is responsible not only for the offense he intended to facilitate or encourage, but also for any other crime that is the natural and probable consequence of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 261.) "Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 920.)

Here, the evidence established that defendant knew a passenger in his car was armed with a gun. Defendant initially drove away from the victim but then returned to respond to a perceived act of disrespect. This evidence, coupled with the gang expert's testimony about gang behavior and the likelihood of a shooting, provided ample basis for the natural and probable consequences instruction. A reasonable person in defendant's position would have known that the shooting under these circumstances was a reasonably foreseeable consequence of an aided and abetted assault. (See People v. Medina, supra, 46 Cal.4th at pp. 926-928.) There was no error.


The judgment is affirmed.

We concur: ROBIE , J. BUTZ , J.


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