Santa Clara County Superior Court No. 213441 Hon. Griffin M. J. Bonini, Trial Judge.
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Attorneys for Petitioner: Richard Torres Arteaga Kendall Dawson Wasley and Eric Weaver for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Jeffrey M. Laurence, Deputy Attorney General, and Michael James Mongan, Deputy State Solicitor General, for Real Party in Interest.
A grand jury indicted petitioner Richard Torres Arteaga on charges of participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and conspiracy to sell methamphetamine (§ 182, subd. (a)(1); Health & Saf. Code, § 11379), with an allegation that petitioner committed the conspiracy for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)) and an allegation that petitioner had a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (c)).
Petitioner moved to dismiss the grand jury indictment. He argued there was not “reasonable or probable cause” for the indictment (§ 995) because the only evidence the grand jury received in support of the charges was uncorroborated accomplice testimony. After the trial court denied petitioner’s section 995 motion, petitioner filed a petition for writ of mandate and/or prohibition in this court.
The Attorney General contends we should deny the petition because petitioner did not file his section 995 motion within 60 days of his arraignment, which is a prerequisite for pretrial writ review under section 1510. We conclude that under the circumstances of this case, petitioner may seek pretrial writ review of the trial court’s order despite his failure to file his section 995 motion within 60 days of his arraignment, because he had “no opportunity” to file the motion earlier and was “unaware of the issue.” (§ 1510.)
In his writ petition, petitioner contends uncorroborated accomplice testimony is insufficient to support a grand jury indictment. We conclude that uncorroborated accomplice testimony can be the basis for a grand jury indictment. We will therefore deny the petition for writ of mandate and/or prohibition.
A. Grand Jury Testimony: Sergeant Dan Livingston
Campbell Police Sergeant Dan Livingston was the first witness to testify before the grand jury. After describing his training and experience, he was presented as an expert in the following areas: gangs (specifically, the Nuestra Familia), firearms, controlled substances, and sales of controlled substances.
The Nuestra Familia originated as a prison gang, in an attempt to protect its members from the Mexican Mafia. Today, the Nuestra Familia operates both inside and outside of prisons. Most Nuestra Familia members are from Northern California. In order to become an actual Nuestra Familia member, a person must be sponsored and prove his or her dedication to the organization, primarily by committing assaults in jails and prisons or on the streets. Members are governed by a constitution, and they must follow orders, even orders to murder their own family members.
Nuestra Raza is the organization of gang members underneath the Nuestra Familia. Nuestra Raza members are leaders of the Norteños, the street gang that is aligned with Nuestra Familia. Norteños identify with the number 14 and the color red. Norteños are governed by a code of conduct called the “14
Bonds.” Norteños serve the Nuestra Familia organization on the street level, by selling drugs and assaulting people.
On the street, the Nuestra Familia has an organized structure. There is typically a Regiment Commander and a Second in Command, who may also be known as a Regiment Security, a Second, or a Reserve. There may be a Squad Leader. There are also regiment members and associates.
The primary activities of the Nuestra Familia are: murder, assault with a deadly weapon or firearm, and sales of controlled substances. Gang members may also engage in extortion, witness intimidation, kidnapping, illegal firearms possession, arson, threats, grand thefts, robbery, burglary, forgery, identity theft, and counterfeiting.
A “kite” is a piece of paper with tiny writing, which is a form of communication used by members of the Nuestra Familia organization who are in custody. Some kites are written in a “dead Aztec language” or in code, and others have “ghost writing, ” which is when a person uses a sharpened staple to etch the paper, and the recipient uses graphite or a pencil to reveal the writing.
On November 20, 2012, a kite was located inside a purse belonging to the mother of codefendant Leonard Rodriguez. Livingston believed the kite had been written by codefendant Robert Pacheco.
In the kite, Pacheco wrote that his family had been “disrespected by an individual named Flaco, ” which is petitioner’s nickname. Pacheco described how Flaco had tried to intimidate Pacheco’s family at the request of Pacheco’s “baby mom, ” who was supposed to have given his family money from methamphetamine sales. Pacheco claimed that Flaco had also been spreading rumors that Pacheco was snitching, and that Flaco was telling people he was “a big homie, ” meaning a member of Nuestra Raza or Nuestra Familia.
B. Grand Jury Testimony: Jesus Cervantes
Jesus Cervantes (also known as Jesse Cervantes) testified under an immunity agreement. He had pending charges of conspiracy to distribute methamphetamine, participation in a criminal street gang, and attempted murder. He had decided to cooperate prior to his preliminary hearing.
Cervantes had been a driver for Nuestra Familia member Angel Martinez. As a driver for Martinez, he had delivered methamphetamine and helped to
collect “hood taxes.” Cervantes had also committed a shooting at the Creekside Grill, and he had been involved in drug sales with various codefendants.
Cervantes identified a picture of petitioner and confirmed that petitioner went by the name Flaco. He described petitioner as “[o]ne of [the] people that was selling for [Martinez].” Cervantes had seen Martinez give petitioner methamphetamine to sell about five times. Petitioner had gotten into debt with Martinez, and petitioner had given Martinez a.38-caliber firearm as a down payment.
C. Grand Jury Instruction: Accomplice Testimony
During the grand jury proceedings, the following instruction regarding ...