California Court of Appeal Apr 28, 2014 No. E056903Unpublished
Filed 4/28/14 P. v. Vera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056903
v. (Super.Ct.No. FWV 900137)
DANIEL VERA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. Reversed in part and affirmed in part with directions.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
A jury found defendant Daniel Vera guilty as charged of the first degree murder of
his fellow gang member Manuel Vega and of active gang participation based on the
(received), 6:35 p.m. (received), and 7:30 p.m. (received). The calls “pinged off” a cell
tower located less than one-half aerial mile from Francisco and defendant’s home. The
3 The 911 call was made at 6:09 p.m.
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records of the calls are therefore consistent with the person using the (909) 489-7712
number being at that home at the time of the shooting.
The records do not show who was using the (909) 489-7712 number. The
maximum distance a phone can be away from a cell tower it is pinging off is two miles.
Therefore, the (909) 489-7712 number was not being used at the crime scene, which is
more than two miles from the cell tower. The records for the (909) 489-8850 number had
been purged by the time of trial.
2. Defendant’s Testimony
Defendant claimed he was at home with his brother Francisco when he learned
Vega had been killed on the night of the shooting. He had just returned home from the
Ontario Mills Mall and he was wearing dress clothes—blue slacks, a button up shirt, and
blue dress shoes.
Surveillance photographs taken at the mall showed defendant in his Suburban
pulling up to “Entry 10” at 5:12 p.m. on January 13, 2009. Two other men, Miguel
Gutierrez and Jeffrey Mendez, were in the vehicle. At 5:14 p.m., the three men are
shown walking into Entry 10, with defendant wearing blue dress pants and blue Stacy
Adams shoes. At 5:33 p.m., the three men are shown leaving the mall, heading towards
the parking lot.
After leaving the mall, defendant claimed he drove to visit friends on Nocta Street,
stayed there for 20 or 30 minutes, then went to his mother’s house and made soup. His
friend, David Navarro, then called from the crime scene and told him Vega had been
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“smoked,” that is, shot. He went to the crime scene and met Navarro. Before leaving his
mother’s house he changed from his dress clothes into blue jeans, a blue shirt, white
shoes, and a blue New York Yankees cap. He visited Vega three or four times a week
where Vega’s mother lived and had seen James a few times when he was over there.
Defendant admitted being a Black Angels gang member, the gang is a “crime
organization,” and when he joined the gang he knew he would have to commit crimes
and he was willing to do so. The four pairs of plaid shorts found in the Yukon belonged
to defendant, and he knew of no other Black Angels who had a tattoo like his on the back
of his neck. Defendant was arrested on January 15, 2009, around 30 hours after the
shooting.
3. Other Defense Evidence
Defendant’s brother Francisco and friends, Jeffrey Mendez and Benjamin
Venegas, testified consistently with defendant’s version of events. But according to
Francisco, when defendant left their mother’s house after receiving the phone call
reporting Vega’s death, defendant was wearing a hooded sweater and some shorts.
It took defense investigator Daniel Mendoza 16 minutes and 46 seconds to drive
from Ontario Mills Mall to the crime scene. He left the mall at 5:33 p.m. as defendant
did and arrived at the crime scene at 5:50 p.m., which meant that defendant had
approximately 17 minutes to change clothes and commit the crime, if he had driven
directly to the scene of the shooting from the mall, because the 911 call came in at 6:09
p.m.
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Francisco agreed that defendant’s cell phone number was (909) 489-7712 and he
used the (909) 489-8850 number. Francisco told investigator Mendoza he called
defendant’s cell phone from his cell phone between 5:00 and 6:00 p.m. He got home 5 to
10 minutes after the call, and defendant was making soup. The cell phone records do not
show a call from Francisco to defendant between 5:00 and 6:00 p.m., however. Francisco
later testified he sent a text message to defendant rather than calling him.
C. Rebuttal
On January 15, 2009, a police sergeant interviewed defendant and asked where he
was around 6:09 p.m. on January 13, 2009. Defendant said he was at the Ontario Mills
Mall; he parked in “Area Neighborhood No. 10” and went to the Oakley store. He told
Sergeant Lawrence Latimer to “[c]heck the video.” Sergeant Latimer had not told
defendant about there being a surveillance video. Defendant also told Sergeant Latimer:
“You can even check the lenses on some of the glasses [at the Oakley store]” because his
fingerprints were on the lenses.
As a ruse, a detective who participated in the interview told defendant he had
watched the surveillance video from the mall and had not seen defendant on it.
Defendant then changed his story: he was not at the mall; he was in Ontario; his phone
would show he was in Ontario and Navarro called him; and Navarro told him Vega had
been shot.
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III. DISCUSSION
A. The New Trial Motion Based on Ineffective Assistance Was Properly Denied
Defendant claims the trial court abused its discretion in denying his new trial
motion based on the ineffective assistance of his trial counsel. He argues his trial counsel
was ineffective and could not have had a strategic reason for failing to object to Officer
Gutierrez’s expert testimony or factual assumption, in responding to questions, that
defendant was the person who shot and killed Vega. We find no abuse of discretion, and
any error in failing to object was harmless because the trial court repeatedly admonished
the jurors that it was for them to decide whether defendant was the person who shot and
killed Vega.
1. Relevant Background
At one point during Officer Gutierrez’s testimony, the following colloquy
occurred:
“[THE PROSECUTOR:] . . . And the commission of this crime, this murder, does
it . . . aid and assist other gang members in the conduct of their putting in work, their
criminal activity?
“[OFFICER GUTIERREZ:] Yes.
“[THE PROSECUTOR:] How?
“[OFFICER GUTIERREZ:] The fact that the defendant, when he murdered the
other gang member not only elevates his status and his clout within the gang but also the
gang benefits because it’s known that the Black Angels have to feed the reputation. . . .
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[T]hey feed that reputation by eliminating other members of their same gang to show that
they’re still ready and willing to kill for the same gang and anybody that cross[es] them.”
(Italics added.) The officer later testified that Black Angels had been known to kill other
Black Angels because of “politics” in the gang culture, or essentially because the
murdered gang member had broken the gang’s rules.
At another point, the officer testified that Vega’s murder would show other gang
members that the Mexican Mafia could “reach out and touch anybody at any time
whenever they please. . . . For them—for the defendant to murder Manuel [Vega] is just
short of him murdering . . . .” At this point, the trial court sustained defense counsel’s
objection and admonished Officer Gutierrez to “[j]ust render an opinion as to the
relationship with the gang. And you pose a hypothetical. Because it’s for the jury to
decide who murdered the victim.” (Italics added.) When Officer Gutierrez later testified
on rebuttal, the court again reminded the jurors that it was for them to decide whether
defendant committed the murder.
2. Analysis
We review a court’s denial of a motion for a new trial for an abuse of discretion.
(People v. Homick (2012) 55 Cal.4th 816, 900-901.) A motion for a new trial may be
made based on ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d
572, 582.) To establish entitlement to relief based on ineffective assistance of counsel, a
defendant must show (1) his counsel’s representation was deficient, that is, it fell below
an objective standard of reasonableness, and (2) it is reasonably probable the defendant
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would have realized a more favorable result absent the deficient performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Doolin (2009) 45
Cal.4th 390, 421.) There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance . . . .” (Strickland v. Washington, supra,
at p. 689.) Accordingly, a reviewing court will reverse a conviction based on ineffective
assistance of counsel “‘only if the record on appeal affirmatively discloses that counsel
had no rational tactical purpose for his act or omission.’” (People v. Frye (1998) 18
Cal.4th 894, 979-980, quoting People v. Fosselman, supra, 33 Cal.3d at p. 581.)
At issue here is whether defense counsel’s performance was deficient because he
failed to object each time Officer Gutierrez indicated or assumed in response to questions
that defendant was the person who shot and killed Vega. To be sure, an expert should
generally be asked and answer hypothetical questions that closely track the evidence but
may not render an opinion that the defendant was the person who committed a crime
because that is of no assistance to the trier of fact. (People v. Vang (2011) 52 Cal.4th
1038, 1048-1049 & fn. 4 [noting in fn. 4 that, in some circumstances, expert testimony
regarding the specific defendants might be proper].)
Here, Officer Gutierrez did not categorically testify that defendant was the person
who shot and killed Vega. Rather, he made that assumption in responding to questions,
rather than speak, as he should have, in terms of hypothetical facts based on the evidence.
In denying the motion for a new trial, the trial court discerned that defense counsel had a
tactical reason for failing to object each time the officer indicated or assumed that
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defendant was the perpetrator: to later argue how biased the officer was against
defendant. And as the People point out, defense counsel did object the second time the
officer indicated that defendant was the perpetrator, and it was reasonable not to object
every time the officer lapsed out of speaking hypothetically in order to avoid annoying
the jury, and to later argue the officer was biased and had a preconceived notion that
defendant was the perpetrator.
We agree with the People that counsel’s performance was not deficient, both
because counsel did object the second time the officer lapsed out of speaking
hypothetically, and because his failure to repeatedly object—even after the trial court
admonished the jury it was its job to determine whether defendant was the perpetrator—
allowed him to argue the officer was biased. Furthermore, counsel’s failure to repeatedly
object could not have affected the result. As indicated, the trial court twice admonished
the jurors that it was their job to determine whether defendant, and not someone else, shot
and killed Vega. Given these admonitions, we discern no reasonable probability that the
jury could have been confused or misled by the officer’s periodic assumption that
defendant shot and killed Vega.
B. Substantial Evidence Supports the Jury’s Finding That the Murder Was Gang Related
Defendant next claims that insufficient evidence supports the gang enhancement
on his murder conviction. (§ 186.22, subd. (b).) In reviewing a claim that insufficient
evidence supports a criminal conviction or an enhancement, including a gang
enhancement, we review the entire record in the light most favorable to the judgment to
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determine whether it contains substantial evidence—that is, evidence of reasonable,
credible, and solid value—such that a reasonable trier of fact could have found the
conviction or enhancement true beyond a reasonable doubt. (People v. Albillar (2010) 51
Cal.4th 47, 59-60; People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
The elements of the gang enhancement are set forth in section 186.22, subdivision
(b)(1): “[A]ny person who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members,” is subject to an
enhanced sentence as provided in subdivision (b) of section 186.22.
Defendant argues the prosecution did not show the murder was committed for the
benefit of, in association with, or at the direction of the South Side Onterio or the
Mexican Mafia. Although he concedes there is substantial evidence that the South Side
Onterio is a criminal street gang as defined in section 186.22, subdivision (f), he points
out that Officer Gutierrez did not testify to the primary activities of, or to any predicate
offenses committed by, Mexican Mafia members, but did testify that the “green light” on
Vega “must have” been issued by a Mexican Mafia member given Vega’s status as one
of the highest-ranking Black Angels, the top tier of the South Side Onterio.
Defendant’s claim fails because substantial evidence shows the murder was
committed for the benefit of the South Side Onterio, if not the Mexican Mafia. Officer
Gutierrez explained that South Side Onterio members will kill other members for
breaking the rules or falling out of favor with the gang. The officer explained that the
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murder benefited the South Side Onterio by: (1) promoting the gang’s reputation as
being ready and willing to kill anyone who crossed them, including their own high-
ranking members, and (2) creating fear and intimidation in the community, thereby
discouraging people from cooperating with law enforcement and enabling the gang to
commit crimes. (People v. Vang, supra, 52 Cal.4th at p. 1048 [“‘Expert opinion that
particular criminal conduct benefited a gang’ is not only permissible, but can be sufficient
to support the . . . section 186.22, subdivision (b)(1), gang enhancement”].)
C. Defendant’s Active Gang Participation Conviction Must Be Reversed
Defendant claims, and the People and we agree, that insufficient evidence supports
defendant’s active gang participation and the conviction must therefore be reversed. As
the People concede, the crime of active gang participation requires the defendant to
commit a felony with at least one other gang member. (People v. Rodriquez, supra, 55
Cal.4th at p. 1132 [substantive crime of active gang participation requires gang member
to willfully advance felonious criminal conduct by another gang member].)
The elements of active gang participation include: (1) active participation in a
criminal street gang that is more than nominal or passive; (2) knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and (3) the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523; § 186.22, subd.
(a).)
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The Rodriguez decision was issued in December 2012, after the trial in this case
concluded in August 2012. The Rodriguez court clarified that the third element of active
gang participation requires the involvement of more than one gang member; thus, the
substantive crime of active gang participation cannot be committed by one gang member
acting alone. (People v. Rodriguez, supra, 55 Cal.4th at pp. 1131-1139.) The court
explained that section 186.22, subdivision (a), “reflects the Legislature’s carefully
structured endeavor to punish active participants for commission of criminal acts done
collectively with gang members.” (People v. Rodriguez, supra, at p. 1139.) And here,
there was no evidence that any gang members other than defendant participated in the
murder, even if defendant was in the company of gang members before and after the
murder. To the contrary, the evidence showed only that defendant acted alone in
committing the murder, shortly after he was seen on the surveillance videos leaving the
Ontario Mills Mall with two other men.4
D. The 10-year Stayed Term on the Gang Enhancement Must Be Stricken, and a 15-year
Minimum Parole Eligibility Period Must Be Imposed on the 25-year-to-life Sentence for
the Murder Conviction
Lastly, defendant claims, and the People and this court agree, that the 10-year
stayed term on the gang enhancement on count 1 must be stricken, and a 15-year
minimum parole eligibility period must instead be imposed on the life sentence on count
4 Defendant’s further claim of instructional error on the active gang participation conviction—specifically, that CALCRIM No. 1400 erroneously suggested he could be convicted of the offense even if he acted alone—is therefore moot.
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1. Ordinarily, a 10-year term applies to a gang enhancement on a violent felony.
(§ 186.22, subd. (b)(1)(C).) But when, as here, the violent felony is punishable by life in
prison, the 10-year term does not apply and the life term instead carries a 15-year
minimum parole eligibility period. (§ 186.22, subd. (b)(5); People v. Lopez (2005) 34
Cal.4th 1002, 1004 [“first degree murder is a violent felony that is punishable by
imprisonment in the state prison for life and therefore is not subject to a 10-year
enhancement under section 186.22[, subdivision] (b)(1)(C).”].) Defendant’s sentence is
therefore amended accordingly.
IV. DISPOSITION
The judgment is amended as follows: the 10-year stayed term on the gang
enhancement on the murder conviction in count 1 is stricken, and a 15-year minimum
parole eligibility period is instead imposed on the 25-year-to-life sentence on count 1.
The matter is remanded to the trial court with directions to amend defendant’s abstract of
judgment to reflect this change to defendant’s sentence, and to forward a copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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KING J.
We concur:
RAMIREZ P. J.
McKINSTER J.
21
AI Brief
AI-generated · verify before citing
Holding. The court reversed the defendant's conviction for active gang participation due to insufficient evidence that he committed the murder with another gang member, while affirming the murder conviction and gang enhancement.
Issues
Whether the trial court abused its discretion in denying a new trial motion based on ineffective assistance of counsel.
Whether sufficient evidence supports the gang enhancement on the murder conviction.
Whether the conviction for active gang participation is supported by sufficient evidence.
Disposition. Reversed in part and affirmed in part.
Quotations verified verbatim against the opinion
“defendant’s active gang participation conviction must be reversed because there is insufficient evidence he committed the murder with at least one other gang member.”