Trial Court: Monterey County Superior Court No.: SS091101 Trial Judge: The Honorable Stephen A. Sillman
The opinion of the court was delivered by: Marquez, J.
CERTIFIED FOR PUBLICATION
(Monterey County Super. Ct. No. SS091101)
A jury convicted defendant Alexander Javier Jasso of attempted murder and other crimes arising from his shooting at people through a window at a McDonald's restaurant in Prunedale. On appeal he claims that the prosecutor committed misconduct during the trial, that the trial court erred in allowing the jury to hear certain evidence and denying his motion to let the jury visit the crimes' location, that there was insufficient evidence to punish him for his gang promotional activities, and that the trial was unfair when viewed as a whole.
We disagree and will affirm the judgment.
The jury convicted defendant of attempting to commit the first degree murder (Pen. Code, §§ 187, subd. (a), 189, 664)*fn1 of Alejandro Munoz (Munoz). The jury also convicted him of three counts of assault with a semiautomatic firearm (§ 245, subd. (b)) and one count each of willfully and maliciously shooting at an occupied building (§ 246) and gang-related street terrorism (§ 186.22, subd. (a)). The amended information had also charged him with the attempted first degree murder of Rafael Munoz Flores (Flores), but the jury acquitted him of that charge.
The jury found true various enhancement or alternate penalty scheme allegations: that defendant committed all of the offenses except the gang-related street terrorism crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)),*fn2 that in all of the offenses except the section 246 violation he personally used a firearm (§ 12022.5, subd. (a))*fn3 , and, with respect to his attempted murder conviction, that he intentionally discharged a firearm (§ 12022.53, subd. (c)). The trial court sentenced him to 35 years to life imprisonment.
The prosecution presented the following facts at trial. On the night of March 29, 2009, defendant, accompanied by his girlfriend Tara Meehan and his friend Robert Hornbeak, drove to a McDonald's restaurant in the Monterey County town of Prunedale. Defendant looked toward the well-lit interior of the restaurant and saw Munoz and his brother Flores. Defendant was a member of the Norteno criminal street gang and recognized Munoz as a member of the Sureno criminal street gang. He recognized Munoz personally; in addition, Munoz was wearing a blue sweatshirt, and blue is a color that Sureno gang members use to identify themselves.
Defendant reacted negatively to Munoz's presence. Hornbeak wanted him to ignore Munoz and let the car's occupants get something to eat elsewhere, but defendant, according to Hornbeak's testimony, said, "I'm gonna get this fool" or "I gotta get this guy." Defendant maneuvered his large vehicle out of the restaurant's drive-through lane, circled around in the parking lot, and parked by one of the restaurant's windows. He racked the slide of a gun he had in the car and fired one shot. It passed through the restaurant window, causing Munoz, Flores, and a woman identified in court as Jane Doe to duck or drop to the floor. The restaurant manager, who was Munoz's wife, called 9-1-1. She would later identify defendant as the vehicle driver in a photographic lineup and in court.
Sheriff's deputies arrested defendant at his residence. On the premises they found a gun, which was hidden in defendant's bedroom. The deputies also found a quantity of ammunition in the bedroom. They did not find defendant's vehicle on the premises, but found it a few days later on property on which a friend lived. It was "away from everything, out of sight" behind a tree and concealed by a tarpaulin and plywood sheets.
A criminalist who testified as an expert on firearms answered yes to the prosecutor's question whether the bullet recovered from the crime scene was in "very poor condition." The authorities did not attempt to match it to defendant's gun. The expert testified that the gun could not be fired until its slide had been pulled back to chamber a round. Because of a missing part, the gun could be fired with about one-third of the normal trigger pulling force needed. The "harder trigger pull [is] a safety measure," he explained, but this gun lacked the needed part. As a result, some 4.25 to 4.5 pounds per square inch of pulling force would discharge the weapon, whereas ordinarily about 12 pounds per square inch would be required. In general, however, the gun worked normally, and it was of "reasonably high quality."
Because defendant was the subject of a gang-related charge and numerous gang-related allegations, the prosecution presented evidence of his ties to the Norteno gang. A witness qualified as an expert in street gangs generally and the Nortenos in particular testified that gangs like the Nortenos have an honor-based culture and thus prize displays of dominance over other similar gangs and, conversely, take harshly to insults or other acts that they perceive as demeaning to them. The Nortenos' archrival is the Sureno criminal street gang. The Nortenos use certain motifs to identify and promote the gang. These include the number 14, the color red, the logos of the San Francisco Giants professional baseball team, and the iconic huelga eagle that is the symbol of the United Farm Workers agricultural labor union. (Huelga is Spanish for a labor strike.) Nortenos also use tattoos and hand gestures to identify themselves and to intimidate or ward off other gangs.
Defendant bore a one-dot tattoo on one arm and a four-dot tattoo on the other, registering his identification with the Nortenos' favored number 14 (the letter "N" is the fourteenth letter of the alphabet). In his bedroom sheriff's deputies found a red blanket with the logo of the San Francisco 49ers professional football team, red bandanas, a T-shirt with the huelga eagle, and CD-ROM covers with the title "Northern Cali Killas" (Cali being an abbreviation of California), and a man in red holding an Uzi machine gun. A cap modeled on the uniform of the New York Yankees professional baseball team was red instead of the Yankees' traditional blue. A San Francisco Giants cap was white with red letters instead of the Giants' traditional black and orange. Hornbeak testified that he was making prideful Norteno gestures to Munoz and Flores before defendant fired his shot, and that Munoz and Flores were laughing at Hornbeak for doing so.
Inside defendant's vehicle, sheriff's deputies found CD-ROM covers with the words "Northern Exposure," the huelga eagle, and one dot followed by four dots. According to the testimony of a sheriff's department detective, the CD-ROMs featured the performances of gang-associated musicians who performed music listened to by Norteno gang members. The friend who was hiding defendant's vehicle for him was dressed in a red shirt and red tennis shoes with red shoelaces when the deputies went to the property. The same detective testified that as he prepared to book defendant into jail, defendant "told me he was a Norteno" for the jail's housing assignment purposes.
The prosecution's expert witness on gangs testified that in his opinion defendant was an active member of the Nortenos. The witness testified that defendant, despite his youth, had a long history of associating with the Nortenos in various parts of California and that he was an active Norteno on the day of the crimes. He also testified that defendant fired the shot in the direction of Munoz and Flores to promote the Nortenos' interests.
Questioned by sheriff's investigators following his arrest, in an interview that was recorded and played for the jury, defendant acknowledged that his gun discharged toward Munoz and Flores, but insisted that he fired it "accidentally" and did not intend to shoot at anyone. He claimed that he did not rack the gun's slide to load a round into the chamber for firing. Defendant was acquainted with Munoz and did not like him but "wanted [only] to fight him . . . [and] not shoot him" after seeing him at the restaurant. He denied making any gang gestures toward Munoz and Flores.
The defense presented the following facts at trial, at which defendant testified on his own behalf.
Before defendant shot at Munoz, the two exchanged insults outside the restaurant, although they were not gang-related. Nor did the two exchange gang signals. However, defendant knew that "they called him [Munoz] a southerner," meaning a member of the archrival Sureno street gang. Defendant parked his vehicle and could see Munoz, who was now inside the restaurant. Defendant and Hornbeak, still in defendant's vehicle, gestured to Munoz to come outside, and Munoz, who was seated and talking on a telephone, started laughing at defendant. "I got kind of mad," defendant testified, and so, in what was "the worst mistake of my life," "I got the weapon" "to show it to him," meaning Munoz. Defendant did this to "kind of fit in, to look tough." "It went off," defendant testified, but "I never meant for a bullet to be fired from that weapon." "If I wanted to kill him, I could have kept shooting." Defendant did not pull back the gun slide to chamber a round, so Hornbeak--who said he heard a semiautomatic gun being cocked from the area of the driver's seat--must have misinterpreted the sound. Nor did defendant tell Hornbeak that he intended to "get this guy," in the words of the prosecutor during cross-examination.
The reason defendant took his vehicle to another location, some three to four days later, was to have his friend's father fix a damaged bumper.
Defendant admitted to being a Norteno gang member "[a]t one point" and retaining a degree of interest in the Nortenos' lifestyle and imagery, as shown by the paraphernalia found at his residence and in his car (although he associated the huelga eagle with the late Cesar Estrada Chavez, the well-known labor leader who co-founded the United Farm Workers union, rather than with the Nortenos); he had called himself a Norteno earlier in his life. But he denied being actively involved with any gang after "maybe [age] 17 at the latest."*fn4 For example, he acquired his Norteno dot tattoos at age 14, and only to be "cool." Even when he considered himself an active Norteno, his activities consisted of "just girls, weed, and partying," but not gang-related crimes. He might own more blue clothing than red and in general he had "real plain tastes, so I'm used to wearing . . . black shirts or white shirts and just regular jeans." He also denied identifying himself as a Norteno during his jail booking. Instead, he had requested to be placed with the general population and not with the separate housing set aside for Nortenos. In addition, he admitted to having juvenile delinquency adjudications and juvenile probation violations, and he acknowledged that a juvenile court judge had once imposed a gang-related probation condition "telling me that I had to stop hanging around with the group of friends that I [had]."
Defendant did not consider his friend Hornbeak to be a Norteno, but he knew, and for a while had associated with, at least five people in Monterey County whom he considered to be gang members or probable gang members. He obtained his gun in Visalia (Tulare County) "for protection" and ammunition for it because he had once been shot at in Prunedale and, regarding the gun itself, because "I thought it was cool" to have it.
Defendant was evasive in answering his lawyer's question whether his being fired upon had happened only shortly before his own gunplay at the restaurant, but he admitted that "it wasn't that long" beforehand. He further testified on direct examination that he told the sheriff's department detective who questioned him that he and the victim were rival gang members, and in his testimony he implied that he believed the victim was a Sureno: "I have some friends that . . . live by him, so they know him real well" and "[t]hey said that he might be a southerner." He amplified that he and the victim "just didn't like each other," and this was so "because a friend of mine that lives right next to him . . . has problems with him." He also testified that he had fired the gun before the fateful encounter at the restaurant and that it had not discharged accidentally before.
Hornbeak testified that he and defendant went to a residence after the shooting. Defendant handed him the gun but it started to fall from Hornbeak's grasp. Hornbeak squeezed the trigger inadvertently and the gun discharged. Hornbeak did not testify about the amount of gripping strength it took for this accident to happen.
I. Claim of Repeated Instances of Prosecutorial Misconduct
Defendant claims that the prosecutor repeatedly committed misconduct during his closing argument to the jury, in violation of state law and the due process guaranty contained in the Fifth and Fourteenth Amendments to the United States Constitution. Specifically, defendant asserts that the prosecutor, over defense counsel's repeated objections and despite admonitions from the trial court, committed misconduct as follows:
1. The prosecutor repeatedly stated that high-ranking California courts had found defendants guilty under facts similar to those here and implied that their decisions were a warrant for the jury to do the same.
2. The prosecutor improperly tried to shift the burden to defendant to prove that he fired the gun accidentally.
3. The prosecutor implied that, after speaking with his lawyer, defendant confabulated an account that he fired the gun accidentally. "This injected defense counsel's veracity and character into the trial, and denigrated [the defense lawyer] by implying he helped fabricate evidence." And the prosecutor made the same insinuation regarding accounts of how defendant obtained the gun.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] . . . [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Carter (2005) 36 Cal.4th 1215, 1263, internal quotation marks omitted.)
Despite our quotation of this strong and morally freighted language, containing such adjectives as intemperate, reprehensible, egregious, and deceptive, the concept of "prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) No "showing of bad faith is required to establish prosecutorial misconduct in argument to the jury." (Ibid., italics deleted.) Thus, the rubric of prosecutorial misconduct embraces a prosecutor's inadvertent and negligent objectionable statements to the jury as well as misstatements involving mental states more culpable than negligence.
The prosecutor's closing arguments contained a number of unorthodox assertions:
1. The prosecutor repeatedly stated that the California Supreme Court and the California Court of Appeal had upheld guilty verdicts on facts similar to those before the jury;
2. The prosecutor implied that the case was not worth the bother of trying because it was open-and-shut, and that trying it was merely a formality legally required to obtain convictions that defendant obviously merited;
3. The prosecutor told the jurors that if any member of the jury failed to follow his or her oath, and, specifically, if a fellow juror failed to deliberate to the other jurors' satisfaction, the dissatisfied jurors must report it to the trial court; and
4. The prosecutor argued to the jurors that because "the case continues to be investigated through trial" and the evidence now showed a charge of attempting to murder a third person, a customer at the restaurant, to be baseless, they should return a verdict of not guilty on that charge. This came as a surprise to the trial court, which mentioned during a break in the prosecutor's argument that it had "denied . . . the motion to dismiss, under [section] 1118.1"--i.e., defendant's motion for judgment of acquittal on ...