Trial Court: Monterey County Superior Court Nos.: SS110071 A&B Trial Judge: The Honorable Pamela L. Butler (Monterey County Super. Ct. Nos. SS110071 A & B)
The opinion of the court was delivered by: Marquez, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendants Valentin Navarro Rivas and Benjamin Puga Carrillo of the first degree murder of James Lopez and of firing a gun into an occupied vehicle. It also found true sentence enhancement allegations that Rivas used a gun and that both defendants committed the murder to benefit a criminal street gang. And it found that defendants were principals, either as the perpetrator or an accomplice, in Rivas's intentional firing of a gun into an occupied vehicle, resulting in Lopez's death. (Pen. Code, §§ 186.22, subd. (b), 187, subd. (a), 246, 12022.5, subd. (a), 12022.53, subds. (d), (e).) The trial court sentenced each defendant to 50 years to life imprisonment.
On appeal, defendants claim that the trial court committed reversible error by providing improper jury instructions and by admitting certain evidence of gang activities that, they claim, violated their right to due process and, in some cases, was substantially more prejudicial than probative.
Although the trial was not free of problems, none of the contentions raised by defendants requires reversal of the judgments, and we will affirm them.
Shortly before 2:00 p.m. on January 12, 2009, James Lopez was driving a car. Ricardo E. was in the passenger seat. A minivan drew alongside Lopez's car. Its passenger, whom Ricardo E. identified with certainty in court as Rivas, taunted, "Where you from, fool?" Lopez held up four fingers, a sign used by the Norteno criminal street gang, and shouted, "Norte." Rivas then fired several gunshots into the vehicle, killing Lopez.
Passenger Ricardo E. described the driver as a clean-shaven Latino with a shaved head who was about 18 years old. Three other eyewitnesses provided testimony about the minivan's occupants. Marisela Zuniga, Rafael Garcia, and Brenda M. were in the vicinity at the time of the crimes. Zuniga was working as a school crossing guard and the other two witnesses were traveling in cars. All three had seen the minivan just before the shooting. Neither Garcia nor Zuniga witnessed the shooting, but Zuniga heard gunfire.*fn1 The minivan had called attention to itself through the operator's reckless driving.
Brenda M. was a passenger in a car behind the two vehicles involved in the shooting. She saw the minivan pull up next to Lopez's car and the minivan passenger fire into it.
Moments earlier, both occupants of the minivan had pulled alongside the vehicle Brenda M. was in and made a gang sign by displaying three fingers. Salinas police officer Robert Zuniga, an expert on local criminal street gangs, would later testify that the number three is a means of Sureno gang identification. Zuniga further testified that "[h]and signs are gestures that are commonly made prior to confronting. . . a rival gang member" and that showing three fingers is a Sureno gang sign.
Brenda M. identified both Rivas and Carrillo in court as the minivan's occupants, but named Rivas as the driver and Carrillo as the gunman. Earlier, according to police testimony, she had told police that Carrillo could have been the driver and Rivas the passenger when they showed her photographs of the two suspects, and she testified that her memory was better then.
Garcia told the police immediately after the shooting that he had gotten a good enough look at the driver of the minivan to identify him. He described the driver as a light-complected thin Latino with short slicked-back hair. The driver was in his late teens or early twenties and wore brown gloves and a black jersey from the Oakland Raiders professional football team.
A detective showed Garcia a six-pack photographic lineup on January 21, 2009. As we read the detective's testimony, Garcia identified Carrillo as the driver with no doubt or equivocation. At trial, however, he testified that he failed to get a good look at either vehicle occupant, and he denied identifying Carrillo as the driver to the detective. When shown the photo of Carrillo, which he had initialed in the presence of investigators, he testified that the photo looked "really similar" to the driver, but he could not be "a hundred percent certain." He testified that he had told the police the truth.
It appears from the record that Zuniga was never able to provide a description of the vehicle occupants.
The photo of Carrillo shown to the witnesses had been taken on or about January 20, 2009, i.e., eight days after the shooting. Carrillo had a rather prominent goatee in that photo, but Garcia did not describe the driver of the minivan as having facial hair, nor did any other eyewitness.
The three other eyewitnesses also provided testimony about the minivan.
Ricardo E. testified that the minivan was dark green, was dirty or dusty, and had sun-damaged paint on the passenger door, tinted windows, and a sliding side door.
Garcia testified that the minivan was a Chrysler Town and Country or Dodge Caravan, which vehicles he described as virtually identical. He described it as brown or light green and having rounded contours. He was familiar with that type of minivan because he had previously been shopping for a minivan and had done research on them. He told a police officer that the van was a 1998 to 2000 model Dodge Caravan.
Brenda M. testified that the minivan looked like a 1998 Dodge, with a rounded hood and tinted windows. It was "tannish goldish" or "gold" but not green. Officers found a minivan owned by Carrillo's mother. A photograph of it was shown to Brenda M., Zuniga, and Garcia. Garcia "immediately" identified the minivan with certainty, while Zuniga thought the photo probably showed the minivan and Brenda M. thought the photo looked similar to the minivan.
Officers who looked at the minivan characterized its paint as "metallic," and they thought it appeared silver, gold, or green, depending on the lighting conditions and the angle from which an observer would look at the vehicle.
The jury heard evidence that Rivas told police that he if was in the area at the time of the shootings, it was because he was visiting Jose de la Rosa, whom he regarded as a de facto grandfather. Rivas told the police that he visited Rosa about 5:30 p.m.--this would be three and a half hours after the shootings occurred--and stayed for about half an hour, and that Rosa mentioned hearing gunshots earlier that day. Rivas added that he, too, heard the gunshots, but said he heard them as he was visiting Rosa. (Seconds later during the interview, Rivas denied having intended to say that he heard the gunshots himself.) But Rosa testified to a different recollection: Rosa had known Rivas since Rivas was four years old, and Rivas visited him regularly at his apartment, but Rivas did not visit Rosa on the day of the shootings, nor did Rosa tell Rivas about hearing any gunshots. He learned about the killing only through news broadcasts and never heard any gunfire.
Each party summoned a witness with expertise in cellular telephone network technology. They testified in essence that both defendants' cell phones were in the Salinas area when the killing occurred. Beyond that, they could not be more specific. To the extent the records provided any useful information, the People's expert testified that defendants could have been in the vicinity of the crime scene between 1:50 and 2:00 p.m. Against this, the expert acknowledged that Rivas's phone did not connect to the reception site closest to the shooting at the time of the shooting. An investigator testified for the prosecution that it took him at least three minutes and 30 seconds to get to downtown Salinas from the crime scene, and cell phone network records showed that Rivas made a phone call at 1:56 that registered with a downtown Salinas cell phone reception site. The parties agree that the 9-1-1 call about the shooting was made at 1:57 p.m., and according to the testimony of the person who placed it, she called 9-1-1 two minutes after the incident.
Cell phone records showed that approximately ten calls were placed between the two defendants' cell phones on the day of the shooting, the first at 10:44 a.m. and the last at 5:10 p.m. There were no calls between the cell phones from 1:46 p.m. to 4:31 p.m.
As noted, a Salinas police officer, Robert Zuniga, testified for the prosecution as an expert on local criminal street gangs. He described the nature and operations of these gangs and defendants' involvement with the Surenos in Salinas.
The two main gangs in Salinas were the Nortenos and the Surenos, and they were in constant rivalry. Sureno refers to a group of street gangs that share the number 13 or XIII, which stands for the letter M in the alphabet, which in turn stands for Mexican Mafia, one of the largest prison gangs and the supreme authority in the Sureno hierarchy. Sureno gangs also shared the color blue, the letter "S," and the number 13. La Posada Trece--trece is Spanish for 13--was a Sureno gang set in Salinas. Sureno gangs engaged in shootings, murders, vehicle theft, vehicle burglaries, home invasion burglaries, and selling and distributing narcotics. Sureno gangs associated with sports teams that use a blue motif, such as the Dallas Cowboys. In addition, Sureno gang members often wore black Oakland Raiders football jerseys, but the meaning of doing so was unclear because Norteno members were also known to wear that apparel.
Norteno street gangs operate under the supreme authority of a prison gang called Nuestra Familia (Our Family) and are associated with the number 14 (the letter "N," as in Nuestra Familia, is the fourteenth letter of the alphabet), the color red, and the apparel of the San Francisco 49ers and Giants. "Even though the Giants don't have the red color," Officer Zuniga testified, Nortenos "use the 'SF' to stand for 'scrap free' or 'sucker free.' " Scrap is a derogatory term for a Sureno. Norteno gang members used the word norte (Spanish for north) to refer to themselves or the gang.
Officer Zuniga opined that Rivas was an active member of the Surenos. Rivas told more than one police officer that he belonged to the La Posada Trece Sureno gang set. He had "LP" tattoos, which stood for La Posada Trece. He had tattoos of three dots on a hand and an elbow. Jail intake records registered him as a Sureno. He had scrawled Sureno graffiti on a wall of his jail cell. Many aspects of Rivas's life illustrated his level of commitment and active support for the gang. The police had often found him in the company of known Surenos. He owned CD-ROMs containing music that Surenos commonly listened to.
Officer Zuniga also opined that Carrillo was an active member of the Surenos. Carrillo told jailers that he was a Sureno and resided in the Sureno section of the jail. He, like Rivas, had Sureno and La Posada Trece tattoos. As with Rivas, the police had often found Carrillo in the company of known Surenos. One such encounter was particularly significant in terms of Carrillo's modus operandi--its importance will become apparent when we discuss defendants' first claim. Officer Zuniga not only considered this modus operandi in forming his opinion that Carrillo was a Sureno but described it for the jury:
"Q. Did you also consider a contact from May of 2006?
"Q. . . . [W]hat are the facts of that contact?
"A. Officers were dispatched to . . . a report of a shooting. [¶] A description of a vehicle was given out. One of the officers located the suspected vehicle involved in the shooting. A traffic stop was conducted. Multiple Sureno gang members were pulled out of the vehicle that was stopped. [¶] Officers located a .380 caliber handgun and a .40 caliber handgun. On one of the individuals that [were] removed, it was Mr. Carrillo, where officers located a .40 caliber handgun on him.
"Q. So it was three gang members inside of the vehicle?