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People v. Salvador

California Court of Appeals, First District, Second Division

May 5, 2017

THE PEOPLE, Plaintiff and Respondent,
HUMBERTO SALVADOR, Defendant and Appellant.

         Contra Costa County Superior Court No. 05-12-00815 Honorable Susanne M. Fenstermacher Trial Judge.

          Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, and Roni Dina Pomerantz, Deputy Attorney General.

          Attorneys for Defendant and Appellant: Stephen B. Bedrick, under appointment by the Court of Appeal


          Richman, J.

         On the evening of December 13, 2008, Jane Doe stepped out of her car and met defendant Humberto Salvador and three other men, who dragged her into a brutalized nightmare. For his participation, defendant was convicted of 15 felonies with 98 enhancements, [1] and sentenced to 425 years and four months to life in state prison. Defendant contends the testimony of the prosecution's expert on criminal street gangs was based on improper hearsay material, and that defendant's cross-examination was unduly restricted. Defendant also contends the trial court erred when it instructed the jury that defendant's possible intoxication was not relevant to the issue of whether he formed the specific intent required for conviction on the kidnapping counts and two other charges where he was alleged to have aided and abetted others. Finally, defendant contends the trial court erred when it imposed consecutive ten-year gang enhancements terms on the ten counts carrying indeterminate life terms under section 667.61, the so-called “One Strike” law.

         Having reconsidered defendant's first contention in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), we conclude there was some improper expert testimony heard by the jury, but it was harmless. We further conclude that all other claims of trial error are without merit. In the published portion of this opinion, we conclude that the inescapable logic of People v. Lopez (2005) 34 Cal.4th 1002 establishes that the gang enhancements are not authorized by section 186.22, and must be stricken. We remand for resentencing, but otherwise affirm the judgment of conviction.

         [[Begin nonpublished portion]]


         The parties' briefs disclose a thorough knowledge of the trial record. Defendant does not contend the evidence in that record is insufficient to support any of his convictions. Defendant did not testify or call witnesses on his behalf, thus narrowing the scope for clash or differing interpretation. In any event, most of the salient details are not in material dispute, so not every detail need be reiterated here. The following narrative abbreviates the trial record in the light most favorable to the prosecution and in support of the judgments. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

         Defendant was a senior member of the Sureno criminal street gang, who lived in Richmond. On the evening of December 13, 2008, Josue Gonzalez was in San Rafael, on his way to church, when he received a telephone call from defendant, who said: “Let's go do a couple of carjack[s], licks [break-ins, robberies].” Gonzalez changed his plans, and telephoned Darryl Hodges and Robert Ortiz-both of whom Gonzalez had been instructing about gang rules and practices-to meet him in Richmond. Gonzalez had been a Sureno for nine years, but was still only a junior member of Surenos, so he felt he had no choice but to obey defendant. Hodges (age 16) and Ortiz (age 15) wanted to become Surenos, and thus would have even less inclination to disobey defendant.[2] Gonzalez, Hodges, and Ortiz had previously gone carjacking with defendant. Gonzalez, Hodges, and Ortiz met defendant in Richmond which, because it was “his neighborhood, ” increased defendant's authority. They drank beer, and set out. They broke into a number of cars, but “just took what was inside.” The four were congregated by one of those vehicles when the victim drove up.

         The victim testified that when she drove up to her Richmond home after work, she noticed a group of four men-three Latino and one Black-standing near a parked car. After she parked her car, she called her father on a cell phone “[b]ecause... I was scared.” While she was talking to her father, and walking to her house, defendant[3] approached, and, in Spanish, demanded money and her keys. The victim told the man she had no money. Defendant grabbed the phone, smashed her head with a flashlight, and repeated “give me everything you have.” The victim surrendered her money, wallet, and keys, but refused defendant's demand that she take off her clothes. After being hit for a second time in the head with the flashlight, she began disrobing.

         Down to her underwear, the victim hesitated to go further until defendant “lifted his hand up as if he were going to hit me again if I didn't take it off.” When the victim was naked, defendant ordered her to “get on the ground.” After Gonzalez picked up the victim's clothing, defendant-in the victim's words-“started to touch me from behind.” Defendant then digitally penetrated her anus for two or three minutes, ignoring her protest that it was hurting her. Defendant then told her get up, marched her over to her car, and told her to get in.[4]

         When the victim handed over her car keys, defendant had thrown them to Ortiz. Ortiz stayed in the car with Hodges and Gonzalez until defendant brought over the victim to her car, and commanded Ortiz to start the engine. Once the car was underway, with the victim in the middle of the back seat, defendant told the driver (Ortiz), “Take us somewhere where all of us can have a good time.” Defendant asked the victim “if I liked men.” “I told him yes” because “I thought he would kill me....” After defendant “asked me if I was sure that I liked men, ” he told her “that if I did like men that I needed to show him.”[5] Defendant unbuttoned his pants, and said, “Give me some head.”

         The victim testified that defendant asked her did she “like dick.” Defendant “grabbed me by the head and pushed me towards his part, ” and forced her to put her mouth over his erect penis. “He... told me we were going to go to a place to have fun.” Gonzalez heard defendant say “You like it you know. Do you like it?”

         After about five blocks, the car stopped at the abandoned home of a Sureno in “a burned-out apartment complex.” After her car had been driven into the carport, defendant ordered the naked victim out. Once out of her car, defendant “told me to bend over, ” and then “[h]e penetrated me” “[i]n the backside.” “I yelled, and I told him that it hurt me, ” whereupon defendant taunted: “See, you like men. I'm going to set you straight.” And, “You like boys. Tell me you like boys.”

         Defendant then ordered the victim underneath an exterior staircase. Again she was sodomized on her feet, while defendant kept asking “if I was sure that I liked men.” While still standing behind the victim, defendant raped her. While doing so, he again inquired “[w]hether... I liked it.” Defendant ordered the victim to her knees and to orally copulate him again. His comments this time were “whether... I liked men and that I should show him that I did, ” and “You like sucking dick, don't you?” When finished, defendant told Gonzalez “It's your turn next.” Gonzalez refused, but Ortiz did not, forcing the victim to orally copulate him. Defendant and Gonzalez drove away in the victim's car, about the time Hodges was forcing the victim to orally copulate him.

         The victim's ordeal ended when Ortiz and Hodges left on foot. Disregarding their command not to move, she ran to a nearby home, and police were summoned.

         Defendant drove himself and Gonzalez for a number of blocks, when they abandoned the victim's car. Defendant's pants and shirt were soaked in blood. He removed them, and set them afire in the middle of the sidewalk.[6] Defendant and Gonzalez were picked up by a cousin of defendant, who drove them away. Gonzalez told the jury that rape was not tolerated by the Surenos: the prohibition against it was almost as strong as the ban on snitching.[7]

         Defendant's DNA was found in swabs taken from the victim. Defendant's fingerprints, and the victim's blood, were found on the flashlight that was found in the victim's car.

         Richmond Police Detective Reina was one of the two prosecution expert witnesses who testified during the prosecution's case-in-chief on criminal street gangs, including the Central Side Locos (), a subset of the Surenos. Reina testified that “CSLs were formed... in the early ‘90s”; that defendant was one of “the founding individuals”; that in about 2000 “their numbers started to diminish, started to decline. In 2008, they had approximately... ten members”; and that “in December of 2008” the CSLs were one of “the subsets... of the Sureno criminal street gang” that were “operating together under the umbrella of Surenos.” In Reina's opinion, the CSLs met the statutory definition of a criminal street gang, [8] and defendant was an active participant, as were Ortiz and Hodges.

         The following occurred on Reina's cross-examination:

         “Q.... So it's fair to say that... you're not sure who [of the CSLs] was around in 2008?

         “MS. SMITH: Objection. Misstates his testimony.

         “THE COURT: Sustained.

         “BY MS. FULLERTON:

         “Q. Well, who was around in 2008 other than my client and his two brothers that you know were there and around in 2008?

         “MS. SMITH: Objection. Relevancy.

         “THE COURT: Sustained.

         “MS. FULLERTON: It goes to the whole gang thing. I mean, if there were members that were actually-

         “THE COURT: Come forward.

         “(Whereupon, an off-the record discussion was held at sidebar between Court and counsel.)

         “BY MS. FULLERTON:

         “Q. When you were talking about the 50 early on, you said that a lot of those people have gotten locked up, correct?

         “A. Yeah, some of them did get locked up, yes.

         “Q. And some of them just moved out of the gang life?

         “A. Correct.

         “Q. Some moved out of the area maybe and went to a gang life someplace else?

         “A. Yes.

         “Q. And that left you, and correct me if I'm wrong, with 10 active gang members on the street in 2008?

         “MS. SMITH: Objection. Compound.

         “THE COURT: Sustained.

         “BY MS. FULLERTON:

         “Q. How many active gang members of CSL were on the street in 2008?

         “MS. SMITH: Objection. Relevancy.

         “THE COURT: Overruled.

         “THE WITNESS: Approximately 10.

         “BY MS. FULLERTON:

         “Q. And of those approximate 10, the three that you know about for sure are my client and his two brothers, correct?”

         “A. Correct.”

         The other expert was San Pablo Police Sergeant Palmieri, who worked with Reina in collecting information about the CSL in Richmond. Sergeant Palmieri did not reiterate Detective Reina's testimony; his apparent allotted role was to answer hypothetical questions as to whether the repugnance for rape (see text accompanying fn. 7, ante) could be overridden by gang discipline and respect for hierarchy that would compel junior gang members to participate, not challenging the conduct and orders of a senior member, thus making the junior members active participants in an offense committed “for the benefit of, in association with, or at the direction of a criminal street gang.”

         Defendant called no witnesses on his behalf.

         Defense counsel's closing argument to the jury essentially conceded many of the substantive crimes alleged but insisted that defendant was a solo actor. Thus, by challenging whether there was sufficient credible evidence that Gonzalez, Ortiz, and Hodges had the mental state to be aiders and abettors, counsel hoped to persuade the jury the crimes had not been committed in concert, and not for a hate-motivated or gang-related purpose. And the blows ...

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