California Court of Appeals, Second District, Third Division
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Los Angeles County
No. YA053907, Steven R. Van Sicklen, Judge. Reversed.
Marilee Marshall, under appointment by the Court of Appeal,
for Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
ALDRICH, J. [*]
and appellant Carlos Miguel Iraheta was convicted of shooting
at an occupied motor vehicle (Pen. Code, §
246) with a section 12022.53, subdivision
(d) firearm enhancement, and sentenced to 30 years to life in
prison. Iraheta contends that in light of our Supreme
Court's decision in People v. Sanchez (2016) 63
Cal.4th 665 (Sanchez), admission of gang expert
testimony, as well as evidence related to “field
identification” cards, was prejudicial error. We agree,
and therefore reverse.
unpublished portion of the opinion, we reject Iraheta's
arguments that addition of the section 246 charge after his
successful appeal of his earlier conviction constituted
vindictive prosecution and the section 246 conviction was
barred by the statute of limitations.
AND PROCEDURAL BACKGROUND
The December 2002 shooting of Michael Orozco
December 20, 2002, at approximately 5:30 p.m., Noe Martinez
drove his white Honda Civic to the Jr. Market in Inglewood.
Inside the market, Jose Tovar, whom Martinez did not know,
stared at him, giving him a bad feeling. When Martinez left
the market, Tovar walked toward Martinez's Honda. Tovar
was a member of the Inglewood 13 criminal street gang.
then drove to the home of his friend, 17-year-old Michael
Orozco, where the two socialized and drank beer and tequila.
At approximately 8:30 that evening Orozco and Martinez headed
for another friend's home. Because Martinez was feeling
“buzzed, ” Orozco drove Martinez's Honda.
Their route took them past the Jr. Market.
Iraheta, his pregnant girlfriend Melody Maciel, his younger
brother Richard Iraheta,  and his stepbrother Alexis Moreno
planned to go to the movies. Iraheta drove the group in his
Camaro. En route, they stopped at the Jr. Market, where
Iraheta saw his friend Tovar. While they were talking,
Martinez's car passed by the market, and Tovar pointed at
saw Tovar's gesture and told Orozco to “step on
it.” Iraheta followed them in his Camaro. Orozco drove
to 65th Street and, at Martinez's direction, stopped the
car. Martinez exited the Honda, intending to talk to the
people in the Camaro. He was wearing a red hat and a dark red
jacket or shirt. Iraheta, driving the Camaro, pulled up
slowly. Martinez lifted his hands up and said, “
‘what's going on?' ” As the Camaro passed
the Honda, Iraheta fired a single gunshot and sped off. The
shot shattered the Honda's driver's side window and
hit Orozco in the neck, fatally wounding him.
stopped the Camaro shortly after the shooting. An officer
found a loaded gun under the front passenger seat. One round
was expended. Forensic testing revealed that the bullet that
killed Orozco had been fired from the gun. At a field showup
conducted shortly after the shooting, Martinez identified the
Camaro and Iraheta. Officers did not find a gun in
Statements and testimony by the other occupants of the
and Melody testified that as the Honda passed the Jr. Market,
it slowed and then sped off. En route to Melody's house,
Iraheta's group came upon the Honda stopped in the middle
of the road, partially blocking their path. Melody asked
Orozco to move the car. Martinez approached the back of the
Camaro. Both Melody and Moreno heard Richard say, “
‘he's got a gun.' ” Iraheta pulled a gun
from under his seat, fired a single shot at the Honda, and
drove off. A white SUV or truck with its high beams on
briefly chased the Camaro. Melody asked Iraheta, “
‘What were you thinking? Why did you do it?'
” He replied that “he was sorry; that he
didn't want to put us in this situation but he did it for
our own safety.” Iraheta handed the gun to Melody and
told her to put it under her seat. In a recorded police
interview, Moreno stated that Iraheta had followed the Honda
after leaving the market. He explained at trial that he did
not mean Iraheta intentionally followed the Honda, but that
Iraheta simply travelled in the same direction.
expert testified regarding the characteristics and activities
of the Inglewood 13 gang. He opined that Iraheta was an
Inglewood 13 gang member, based on his “West
L.A.” tattoo, attire, and association with other gang
members. When given a hypothetical based on the facts of the
case, the expert opined that the motive for the shooting was
gang-related. Other officers testified to contacts with and
preparation of field identification (FI) cards regarding
Iraheta and other persons they believed to be gang
testified in his own defense. At the time of the shooting, he
was 19 years old, had no criminal record, was in the military
reserves, and was not a gang member. He and Melody were
planning to marry. He had just been hired by Bank of America
and was enrolled to start classes at ITT Tech. He had a
“West L.A.” tattoo, but it was not a gang tattoo.
He had the gun for protection because he had been beaten up
near his house by gang members approximately six months
before the shooting. He had been walking home from a sandwich
shop when gang members confronted him, and they attacked when
he stated he was not a gang member.
night of the shooting, Iraheta, Melody, and his brothers were
planning to go to the movies at Universal City Walk. He drove
by the Jr. Market and his friend Tovar flagged him down.
While he and Tovar were talking, Martinez's Honda passed
by. Tovar warned Iraheta that the Honda's occupants had
been “cruising around and looking for trouble”
and had “ ‘mad-dogg[ed]' ” him earlier
that day. Iraheta left the Jr. Market a few minutes later. He
did not intentionally follow the Honda, but his route took
him to 65th Street. The Honda was stopped in the street,
blocking it. Martinez was standing outside the car. Iraheta
signaled to Martinez to move the car. Martinez then put his
hands up as if to say “ ‘What's up?'
” Eventually, Orozco moved the Honda enough that
Iraheta attempted to squeeze by. Martinez approached the back
of the Camaro. When the Camaro was approximately parallel to
the Honda, Richard said, “ ‘keep going. He gots a
gun' ” or similar words. Iraheta saw Orozco looking
at him and saying something. Orozco had a small pistol in his
hand and was tapping it on the Honda's window. Iraheta
grabbed his gun from under the seat and fired one round while
simultaneously hitting the gas pedal. He believed Orozco was
going to fire first. He was afraid Melody, who was carrying
his baby, was going to be shot as she was closest to the
Honda. When asked why he did not simply speed up and drive
away, he explained: “My foot was halfway down on the
[brake] pedal. And it just - it just happened quickly. I did
speed off at the same time as I fired. And even if I would
have hit the gas, [Martinez] was behind my car, and they
would have just shot into my car, and Melody is right next to
that other guy so the threat was there.” On
cross-examination, Iraheta admitted he had previously
testified that he was unsure whether Orozco had a gun or a
cellular telephone in his hand.
testified that he saw the Honda slow as it passed the Jr.
Market. He believed one of the men in the Honda was a gang
member because he was wearing red, a gang color. As he was
talking to Iraheta, the Honda passed by again. Tovar told
Iraheta to be careful because the men in the Honda “
‘might be guys looking for trouble' ” or
“they don't look like they're from here.”
Tovar admitted he had been an Inglewood 13 gang member from
1996 to 1999. He admitted telling an officer in 2011 that he
was an Inglewood 13 member, but he had not in fact been
affiliated since 2000. Iraheta was not a gang member.
other things, the defense introduced the testimony of two
witnesses who had attended basic training with Iraheta, and
did not know him to be a gang member; expert testimony
regarding the “fight or flight” syndrome; expert
testimony regarding the Culver City Boys gang, whose gang
color was red; and a gun expert's testimony that an
object shown in a photograph of the Honda's interior, but
not discovered by police, was a gun.
2003, after an earlier trial, a jury convicted Iraheta of
second degree murder with a firearm enhancement. We affirmed
the judgment in an unpublished opinion. (People v.
Iraheta (Apr. 30, 2008, B173223 (Iraheta I).)
Thereafter our Supreme Court granted review and, after
issuance of its opinion in People v. Chun (2009) 45
Cal.4th 1172, transferred the matter back to us for
reconsideration in light of that decision. Overruling prior
precedent, Chun held that shooting at an occupied
motor vehicle (§ 246) could not serve as the basis for a
felony-murder instruction. We concluded that the trial
court's contrary instruction was prejudicial error under
Chun, and reversed in an unpublished opinion.
(People v. Iraheta (Nov. 20, 2009, B173223)
People then filed an amended information charging Iraheta
with murder (§ 187, subd. (a)) and adding a second count
of shooting at an occupied motor vehicle (§ 246), with
section 12022.53 firearm allegations. Upon the retrial that
is the subject of the instant appeal, the jury convicted
Iraheta of shooting at an occupied motor vehicle in violation
of section 246, and found the firearm allegations true. It
deadlocked on the second degree murder charge, and the trial
court declared a mistrial on that count.
then filed a motion for a new trial on a variety of grounds.
The trial court granted the new trial motion on the ground
that it had erred in failing to instruct the jury on
imperfect self-defense in regard to the section 246 count.
The People appealed that ruling. In a partially published
opinion, we concluded the trial court had not erred by
failing to instruct the jury on imperfect self-defense on
count 2. (Iraheta III, supra, 227
Cal.App.4th at p. 613.) In the unpublished portion of the
opinion, we held that the other grounds raised in the new
trial motion did not support the grant of a new trial.
Accordingly, we reversed the trial court's order and
remanded for further proceedings.
remand, the trial court imposed the midterm of five years on
the shooting at an occupied motor vehicle charge, and 25
years to life on the section 12022.53, subdivision (d)
enhancement. It ordered victim restitution of $6, 080.50 and
imposed a $200 restitution fine, a suspended parole
revocation fine in the same amount, a court operations fee,
and a criminal conviction fee. On the People's motion,
the court dismissed the murder charge upon which the jury had
deadlocked pursuant to section 1385.
Admission of gang evidence
People's theory was that Iraheta was an Inglewood 13 gang
member who killed Orozco because he believed Orozco and
Martinez to be rival gang members in Inglewood 13 territory.
As set forth below, to establish Iraheta's gang
membership, the People offered evidence that Iraheta was
found on two occasions in the company of Inglewood 13 gang
members, and his cellular telephone contained the phone
numbers and contact information for numerous gang members.
The People also offered expert testimony on the
characteristics and culture of the Inglewood 13 criminal
Officer Barragan's expert testimony regarding the
Inglewood 13 gang
Police Officer Jose Barragan, who had extensive training and
experience regarding gangs, testified as an expert on the
Inglewood 13 gang. In 2002, the gang had approximately 500
members. It was associated with the Mexican Mafia. A person
joins a gang in one of three ways: he is either “jumped
in, ” that is, beaten up; commits crimes for the gang;
or has a relative who is a high ranking gang member. Gang
members commonly use monikers. Inglewood 13 gang members
often wear “I” belt buckles similar or identical
to one Iraheta was observed wearing on the night of the
shooting and during an earlier contact with police. They
typically have Inglewood 13 tattoos, and sometimes have
“West L.A.” tattoos like Iraheta's.
members are required to commit violent crimes such as
shootings, assaults, grand thefts, carjackings, homicides,
and stabbings. Committing such crimes is known as “
‘putting in the work.' ” Gang members need
guns to commit crimes and retaliate against other gangs.
Reputation is enormously important. The gang subculture
revolves around respect and status, which are gained through
fear, intimidation, and violence directed at the community
and rival gang members. If a rival enters another gang's
territory, it is a sign of disrespect. If a gang member sees
someone believed to be a rival in his own territory and does
nothing, he will be considered weak and inferior. The
Inglewood 13 gang claimed the entire city of Inglewood as its
territory, but gang members were most commonly found in an
area bordered by Century, Aviation, and Prairie Boulevards,
and 64th Street. Centinela Park was an Inglewood 13 gang
“hangout.” The Jr. Market was in the center of
the gang's claimed territory. The Inglewood 13 gang's
rivals included the Culver City Boys gang, whose gang color
was red. Martinez was not a gang member.
The September 2, 2002 Buick incident
response to reports of a robbery and a man with a gun, on
September 2, 2002, City of Inglewood Police Officer John Baca
and Lieutenant Neal Cochran responded to East Brett Street in
Inglewood. They observed three male Hispanics - Ramon
Rodriguez, Carlos Carcamo, and Carlos Ordonaz -walking
westbound on the sidewalk. One threw an object, later
determined to be a gun, under a nearby parked Mazda, and
fled; he was captured shortly thereafter. The other two men
remained on the scene. Baca and Cochran noticed Iraheta,
Tovar, and Christian Muniz seated in a brown Buick parked
near the Mazda and contacted them because of concern the
Buick might be a “layoff car” used in robberies.
Rodriguez, Carcamo, and Ordonaz were arrested. The
Buick's occupants were not arrested because they had done
completed FI cards on Iraheta and Tovar. Cochran testified
that during the contact, Tovar admitted being an Inglewood 13
member with the moniker “Little Drowsy.” Cochran
wrote “Inglewood 13” on Iraheta's FI card
because Iraheta was with Tovar. Cochran also observed that
Iraheta had an “LA” tattoo on his left upper arm,
which signified a southern California gang under control of
the Mexican Mafia. Cochran noted Iraheta was frequenting a
gang area and was wearing gang attire, but did not describe
at trial the attire he deemed gang-related. Iraheta did not
admit gang membership or give a moniker. Muniz likewise did
not admit he was a gang member. Without objection, Baca
testified: “after we conducted our investigation, we
found out that the subjects that were involved in this were
Inglewood 13 gang members, ” as were the occupants of
testified to an innocent explanation for his presence with
Tovar and Muniz. He was a passenger in the car and was
waiting for his friend Ivan, who was inside a nearby house
settling an argument with his (Ivan's) girlfriend. Ivan
was not a gang member. Neither he, Tovar, nor Muniz was
involved in a robbery. When an officer repeatedly asked if
Iraheta was a gang member, he denied it.
The December 2, 2002 Centinela Park incident
Brett Birkbeck testified that on December 2, 2002, he and his
partner, Officer Robert Martinez, went to Centinela Park to
investigate a report of a man with a gun. When they arrived,
they observed a group of approximately 10 male Hispanics,
including Iraheta, fighting. A gun was on the ground 10 to 15
feet away from the melee. Some of the men ran off, but six,
including Iraheta, remained. Officer Martinez (who did not
testify at trial) prepared an FI card on Iraheta. The FI card
indicated Iraheta was an Inglewood 13 gang member based on
four criteria: “[g]ang tattoos, affiliates with gang,
frequents a gang area, and gang dress.” During the
encounter, Birkbeck personally observed Iraheta's
“West L.A.” tattoo and his “I” belt
buckle. Birkbeck testified the persons with whom Iraheta was
found were Romeo Vela, Joel Fraticelli, Luis Maciel, Carlos
Pineda, and Julio Parra.
Barragan reviewed the police report regarding the Centinela
Park incident, reviewed FI cards generated during the
investigation, and talked to the officers who were there.
Centinela Park had long been an Inglewood 13 hangout, with
gang members and gang graffiti present; it was “known
for getting jumped in and hanging out.” Over an
objection that the testimony was hearsay and violated the
confrontation clause, Barragan testified that he had spoken
to gang members who had been “jumped in” at the
park. Over the same objection, Barragan testified that, based
on his review of the FI cards, four of the five males
detained with Iraheta in the park were self-admitted
Inglewood 13 gang members. The trial court ruled that
Barragan's review of FI cards was the foundation for his
expert testimony. No testimony from the officer or officers
who prepared FI cards on Vela, Fraticelli, Maciel, Pineda, or
Parra was offered.
testified that he was at the park to pick up Melody's
younger brother Luis, at the request of Melody's mother.
Luis had had an ongoing problem with another youth, Romeo.
Iraheta searched the park until he found Luis, grabbed him,
and was about to leave when a patrol car pulled up. He did
not flee and ensured Luis did not either. He did not
participate in the fighting and was not engaged in gang
Hernandez (Melody and Luis's mother), testified that
after a neighbor notified her that Luis was being beaten up
at Centinela Park, she asked Iraheta to go retrieve him.