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People v. Iraheta

California Court of Appeals, Second District, Third Division

August 31, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
CARLOS MIGUEL IRAHETA, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL 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.

          Kamala 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 Respondent.

          ALDRICH, J. [*]

         Defendant and appellant Carlos Miguel Iraheta was convicted of shooting at an occupied motor vehicle (Pen. Code, § 246)[1] 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.

         In the unpublished portion of the opinion, we reject Iraheta's arguments that addition of the section 246 charge after his successful appeal of his earlier conviction constituted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.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. Facts

         a. People's evidence

         (i) The December 2002 shooting of Michael Orozco

         On 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.

         Martinez 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.

         Meanwhile, Iraheta, his pregnant girlfriend Melody Maciel, his younger brother Richard Iraheta, [2] 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 it.

         Martinez 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.

         (ii) The investigation

         Officers 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 Martinez's Honda.

         (iii) Statements and testimony by the other occupants of the Camaro

         Moreno 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.

         (iv) Gang evidence

         A gang 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 members.[3]

         b. Defense evidence

         Iraheta 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.

         On the 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.

         Tovar 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.

         Among 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.

         2. Procedure

         In 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) (Iraheta II).)[4]

         The 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.

         Iraheta 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.

         On 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.

         Iraheta appeals.

         DISCUSSION

         1. Admission of gang evidence

         a. Additional facts

         The 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 street gang.

         (i) Officer Barragan's expert testimony regarding the Inglewood 13 gang

         Inglewood 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.

         Gang 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.

         (ii) The September 2, 2002 Buick incident

         In 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 nothing wrong.

         Cochran 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 the Buick.

         Iraheta 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.

         (iii) The December 2, 2002 Centinela Park incident

         Sergeant 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.

         Officer 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.

         Iraheta 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 activities.

         Yolanda 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.

         (iv) Iraheta' ...


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