Opinion
H032308
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO GONZALES HERNANDEZ, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted defendant Antonio Gonzales Hernandez of (1) first degree murder (victim Larry Burrow), (2) premeditated attempted murder (victim James Dozier), (3) premeditated attempted murder (victim Clinton Dozier), (4) shooting at an occupied vehicle (Pen. Code, § 246), and (5) negligent discharge of a firearm.
Further unspecified statutory references are to the Penal Code.
The jury also found true special allegations that defendant had committed offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)(B)—15-year-to-life sentence), personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)—25-year-to-life additional, consecutive term), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)—20-year additional, consecutive term), and personally used a firearm (§ 12022.53, subd. (b)—10-year additional, consecutive term).
The trial court sentenced defendant to (1) life without parole, (2) 35 years to life consecutive, (3) 10 years to life consecutive, (4) 30 years to life concurrent, and (5) two years concurrent.
The clerks minute order shows a 25-year-to-life concurrent sentence for count 4. The abstract of judgment shows an unspecified concurrent sentence for count 4. The reporters transcript reflects for count 4 that the trial court imposed a five-year concurrent midterm pursuant to section 246 and an additional, consecutive 25-year-to-life term pursuant to section 12022.53, subdivision (d). The record of the oral pronouncement of the trial court controls over the clerks minute order and abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Defendant and the People request that we direct the trial court to correct the part of its minute order that reflects a 25-year-to-life concurrent sentence for count 5. And we observe that the abstract shows an unspecified concurrent sentence for count 5. We direct trial courts to remedy clerical errors in abstracts of judgment and minute orders even in the absence of a request. (People v. Mitchell, supra, at pp. 186-187.) We will direct that the trial courts minutes and abstract of judgment reflect a two-year concurrent sentence for count 5.
On appeal, defendant contends that the trial court erred by (1) excluding over objection evidence of victim Burrows membership in a criminal street gang, and (2) sentencing him on count 4 to 30 years to life rather than 15 years to life. We agree with defendants sentencing point. We therefore modify the judgment and then affirm it.
BACKGROUND
James Dozier operated a tree-trimming business with his son, Clinton. They came to Santa Cruz from San Jose to trim trees at the Knights Inn motel. Jamess nephew, Larry Burrow, came from Fresno to assist them. His girlfriend and infant son accompanied him. The group resided at the motel during the job. One evening at approximately 10:00 p.m., the group returned to the motel after having dinner when Burrow decided to purchase milk for his baby. He got into his car accompanied by James in the front seat and Clinton in the back seat. While driving to a store, he became caught in congested traffic in the Beach Flats area near the Boardwalk where, in the previous two months, Norteno criminal street gang members had twice assaulted Sureno criminal street gang members and, in between, Sureno gang members had once assaulted Norteno gang members. He was playing loud rap music referred to as the 559 song on the cars stereo. Cindy Garcia, a Sureno-aligned gang member, approached the drivers side window and said something. Burrow turned down the music, rolled down his window, and asked what Garcia wanted. Garcia asked from where Burrow came, and Burrow replied that he came from Fresno. Garcia then broke the back side or rear window with her fist and angrily exclaimed, "Youre not in Fresno anymore and that shit [or `559] dont go down in Santa Cruz." James told Burrow to forget about the incident and continue, but Burrow could not travel far due to bumper-to-bumper traffic. Garcia followed the car, yelling and screaming. She broke more windows. Burrow backed up about the length of a car to get out of the traffic lane and stopped. Garcia was on the sidewalk about 10 feet from the car. Burrow got out of the car, stood up, and asked Garcia why she was breaking his windows. Garcia did not reply. Burrow reentered the car, resumed a place in the traffic flow, and stopped the car for a traffic light. Garcia then called out to someone using a nickname. Defendant, a Sureno gang member, came onto the sidewalk behind Burrows car, walked past the car about 25 feet, turned to face the car, and pulled out a gun. Burrow drove in reverse and over the sidewalk curb so as to immediately turn left, but defendant began shooting his gun. The bullets went through the car and hit Burrow twice and James once. James and Clinton exited the car and ran. Defendant then shot James again. At the time of his death, Burrow was wearing a Fresno State University Bulldog red cap that had a paw print air-brushed on it with the letters "NS." He also had a Fresno State University sticker affixed to a rear window of his car.
For clarity, we will refer to the Doziers by their given names.
Several witnesses testified that defendant (1) was behind Burrows car when Burrow backed over the curb, and (2) began shooting as the car was backing toward him. Defendant advanced a self-defense theory to justify the shootings or mitigate the three principal charges.
GANG-MEMBERSHIP EVIDENCE
During in limine proceedings, the People sought under Evidence Code section 352 to preclude the admission of evidence showing Burrows gang activity, particularly that, in police field contacts while Burrow was a juvenile between 1995 and 1997, Burrow had admitted being a member of the Fresno Bulldogs, a criminal street gang associated with the Norteno gang. They argued that the police contacts were remote, the records of the contacts had been destroyed, the admissions did not by themselves establish a character for violence, and there was a high risk of undue prejudice and issue confusion.
Defendant opposed the Peoples motion. At the hearing, he argued as follows: "[I]t is the Peoples theory that this crime was, in fact, committed for the benefit of the gang. It will no doubt be presented through expert testimony that, in fact, the offense is—Ill abbreviate, gang-related because of the evidence that [Burrow] was, in fact, wearing a gang hat, a hat indicating gang membership . . . . There was a sticker on [Burrows] automobile indicating gang membership. A FB sticker indicating Fresno Bulldogs. The hat are essentially certainly gang colors. Its got NS airbrushed onto the red hat. Clinton . . . says that . . . Burrows [sic] is or was, in fact, a gang member. And, obviously, it certainly would go to [defendants] reasonable belief that perhaps he might have been in danger of death, bodily harm, given that [Burrow] was, in fact, in a sense, actively promoting the opposite gang by wearing these colors. [¶] And I think its clearly relevant to this case, and the People essentially want to put on all of this evidence that [defendant] is a gang member but not have the jury find out that the other guy is a gang member, even though their theory is that the motive is that this was some sort of retaliatory killing."
The trial court conditionally granted the Peoples motion reasoning that "this is not a self-defense case. If it proves to be, then Ill look at it again and see if I change my mind."
During trial and following direct examination of the Peoples gang expert, defendant filed a motion to reconsider the trial courts ruling. The motion asserted that the evidence was admissible under Evidence Code section 1103 as evidence of character or a trait of character in the form of opinion, reputation, or evidence of specific instances of conduct. It urged that the evidence was highly relevant to "whether defendant subjectively and reasonably acted in self[-]defense, whether defendant subjectively but unreasonably acted in self-defense, AND whether [Burrow] in fact acted in conformity with his character traits of violence, aggressiveness, and violence while under the influence." It added that the probative value greatly outweighed any undue prejudice because the "evidence is essential to [defendants] self-defense claim by showing his reasonable apprehension and fear as well as his own lack of intent [and his] right to a fair trial includes his right to mount an affirmative defense that is reasonably supported by the facts."
At the hearing outside of the jurys presence, the trial court pointed out that Burrow was a perfect stranger to defendant. It explained as follows: "The question is though theres not going to be any evidence from which one can infer that [defendant] had knowledge of any reputation which Mr. Burrow had, either knowledge of a specific act of violence as against [defendant] or anyone else nor any reputation. The apparent fact, when I say apparent fact that one can infer from the available evidence that Mr. Burrow was in some fashion affiliated with a gang, that is admissible to explain, if you will, the motivation for the attack, be it what the People are asserting or indeed what the defense is trying to assert in terms of a defense of another or a defense of oneself, that type of thing, but his history here I think [the prosecutor] is correct. You just dont bring in history that somebody may have that is not tied into the case. He could have committed a couple of homicides in the past. If [defendant] was not aware of that, had some reason to know of that either by specific act or reputation, somebody carries a reputation for having, you know, being a Sureno killer to turn things around here, but theres not any evidence nor do I anticipate theres going to be evidence in which those inferences can be drawn. [¶] So its my tentative intention to reconsider the decision but deny it and having done so, but just so its clear, youre not foreclosed from asking this expert questions about, you know, culture history, the same types of things hes gone to on direct examination as it relates to the response or the behavior to make it broader, behavior of Ms. Garcia and [defendant] in response to Mr. Burrow appearing there, the music, the car, if thats pertinent, you know, everything thats associated with that, yes, he can testify about that, but not testify about any specific acts that Mr. Burrow may have committed in Fresno or anywhere else unless theres something, for instance, that can be drawn from any other evidence and I dont think were going to hear that evidence. [¶] . . . [¶] . . . [Y]ou can actually ask him in his opinion is this individual going to be perceived by the member of the Beach Flats Surenos as being a rival gang member or—member is a difficult word—affiliated with the rival gang which is all youre trying to prove, but theyre trying to prove the same thing, so I dont know that thats the problem and my ruling did not foreclose you from doing that. [¶] . . . [¶] . . . You can ask him any questions you want pertinent to inferences that he would draw as an expert and how it ties into the culture down in the Flats, the Sureno gang that hes talked about as to his opinions about the perception that Mr. Burrow is going to make based upon your hypothetical, his review of the reports, both—thats permissible, okay. [¶] . . . [¶] [Burrow] is going to be perceived to be affiliated. Its not pertinent as to whether or not he is. The question is his presentation, and I dont mean to be glib about that, his presentation down there on that evening in the Flats, was that going was he presenting himself as someone who was affiliated with a Norteno gang. [¶] . . . [¶] . . . Its the same thing the People are trying to prove here. You are both trying to prove the same thing. Mr. Burrow, his car presented itself as a group of Nortenos in the Flats on Sunday night and unfortunately Mr. Burrow probably who probably didnt know any better, there had been a lot of violence including some shootings recently it made him a target, okay. [¶] . . . [¶] . . . [Y]ou can ask him that, but not whether Mr. Burrow is a member of that or has any history with being affiliated with that, just his presentation that evening in the Flats. You folks are trying to prove the same thing. [¶] . . . [¶] Well, these folks over here are maintaining this is a gang, you know, homicide. It makes sense that theyre trying to prove that Mr. Burrow is presenting himself as somehow gang affiliated and therefore hes the target of the retribution shooting. Youre just looking at it from a different angle."
On cross-examination, the Peoples gang expert testified that (1) the color blue was associated with the Surenos and the color red was associated with the Nortenos, and (2) the Fresno Bulldogs is a street gang affiliated with the Nortenos that has adopted the Fresno State University Bulldog logo, the color red, the initial N (for Norteno, North Side Fresno Bulldogs, or Northern California), the number 14, and a paw-print symbol. Defense counsel then showed the expert Burrows hat, and the expert described it. The expert opined that the Fresno Bulldogs used Fresno State stickers or decals to identity each other and gang members in general will use a home telephone area code for identification such as the number "559," Fresnos area code. He added that gang members in general listen to a thumping style of music, "gangster rap CDs [that] discuss a lot of different things like . . . shooting cops, killing cops, shooting, killing rival gang members . . . [¶] . . . [¶] . . . [that] [a]dvertise their gang, advertise violence, glamorize that lifestyle." And the expert answered affirmatively the following hypothetical question: "Based on what you said if a person—a young man is traveling through the Beach Flats at night in a vehicle that has a modified amplification system playing a song referencing 559 area code and that vehicle has a decal showing the Fresno Bulldogs on the side of their car and the driver himself is wearing a red cap, typically a Fresno State cap, a red hat, a fairly new hat thats modified in the front with a paw printed with the letters NS, which stands for North side, will that person be perceived to be affiliated with a Norteno gang by Sureno gang members?"
After the parties rested, the trial court instructed the jury on the principles of self-defense.
The prosecutor then argued to the jury that there was no evidence to support self-defense.
Thereafter, defense counsel reminded the jury that it was the Peoples burden to disprove self-defense. He then argued that defendant knew about the recent Beach Flats assaults by Nortenos against Surenos and, on the night in question, saw a confrontation involving Garcia and a man wearing a gang-modified red hat. He recounted the witnesses testimony to the effect that it looked as if Burrow was trying to run over defendant. He urged as follows: "Remember when deciding whether the defendants beliefs are reasonable, consider all of the circumstances as they were known to, and appeared to the defendant. [¶] You have to throw in that the fact the driver, Larry Burrows [sic ], was, in fact, wearing gang colors. Even [the expert] testified that this is clearly something that could be interpreted as a provocative act. In the same way as playing the five five nine music. Its a provocative act. [¶] . . . [¶] Once again, provocative act. Wearing colors. A provocative act. In deciding whether his beliefs were reasonable, consider all the circumstances, including the fact that the driver of that car was wearing gang colors. Including the fact that in the six weeks leading up to this, three people have been shot, one person savagely beaten, right there in this same neighborhood. Right within a one-block radius. [¶] And then the car. Rapidly in reverse. Once again, I cant emphasize it enough how fast this car must have been going for the tire to pop." He concluded this topic as follows: "And once again in assessing this, you have to look at all circumstances known to [defendant] at that point in time. First of all, the evidence that this is a gang member. The red hat looks new, recently airbrushed, its clearly modified, theres an N-S and a big paw print on it."
In again arguing against defendants self-defense theory, the prosecutor replied, in part: "Now, he had that hat on. And there is no question that that would suggest to a gang person that he might have some gang ties. So what? He wasnt doing anything that justified any kind of a response."
Defendant contends that "The trial court violated [his] right to due process of law under the Fifth, Sixth and Fourteenth Amendments by barring the defense from presenting evidence through the gang expert that Burrow was a member of the Fresno Bulldogs Norteno street gang." There is no merit to this contention.
The federal Constitution guarantees a state criminal defendant a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) But " `As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. " (People v. Phillips (2000) 22 Cal.4th 226, 238.) "Although the complete exclusion of evidence intended to establish an accuseds defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Here, exclusion of the gang-membership evidence did not amount to complete exclusion of defense evidence because defendant was not precluded from offering other evidence related to his self-defense theory. (See People v. Maury (2003) 30 Cal.4th 342, 414 [rejecting due process claim where defendant chose not to testify regarding subject excluded by evidentiary rule and where he was not precluded from offering other factual evidence]; cf. Rock v. Arkansas (1987) 483 U.S. 44, 62 [upholding a due process challenge to an exclusionary rule which prevented the defendant from testifying on her own behalf].) And defendant did so. The pivotal point of his theory was that Burrow attacked him by backing the car toward him. The evidence on this point, whether Burrow backed the car toward defendant or backed the car after seeing defendant in front of the car pulling a gun, is unrelated to whether Burrow was a gang member. The gang-membership evidence related to the theory only insofar as it gave Burrow a motive for backing up and defendant a reason to fear being run over. But Burrows motive and defendants fear were in evidence and argued. Burrow wore a gang hat, displayed a gang decal, and played gang music. The expert testified that Burrow would be perceived as a gang member. Defendant argued that Burrow was "a gang member" who provoked him. The prosecutor agreed that "there is no question that" Burrows red hat "would suggest to a gang person that [Burrow] might have some gang ties." Thus, defendant presented his defense. Whether Burrow was, in fact, a gang member is a minor point that adds nothing to the defense absent evidence that defendant knew Burrow and knew that Burrow was a gang member.
Defendants reliance on Chambers v. Mississippi (1973) 410 U.S. 284, is erroneous. That case involved the combined application of evidentiary rules leading to the exclusion of key witnesses and preventing the impeachment of another. The holding was based on the specific " `facts and circumstances "of the case and "does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence." (United States v. Scheffer (1998) 523 U.S. 303, 316, citing Chambers v. Mississippi, supra, at pp. 302-303.)
The federal due process clause does not require admission of the gang-membership evidence as a matter of federal constitutional right.
COUNT 4 SENTENCE
Defendant contends that the sentence on count 4 should be 15 years to life rather than 30 years to life because "The true finding on the gang enhancement made the sentence for the section 246 conviction 15 years to life pursuant to Penal Code section 186.22, subdivision (b)(4)(B)." He acknowledges that section 12022.53, subdivision (d), allows for a 25-year-to-life term consecutive to the five-year term imposed for a violation of section 246 if he "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury . . . ." But he claims that the jurys verdict as to count 4 does "not reflect the findings necessary to bring subdivision (d) into play." He asserts that "the jurys subdivision (d) findings were restricted to counts one, two and three." We agree with defendant.
The verdict form for count 4 (shooting at an occupied motor vehicle) has but one special allegation following the space to mark "guilty" or "not guilty"—the gang allegation. There is a separate verdict form for gun allegations. The first verdict on the gun-allegations form is for count 1 and is that defendant "personally and intentionally discharged a firearm, a handgun, which proximately caused death to Larry Burrows [sic ]." The second verdict on the gun-allegations form is for count 2 and is that defendant "personally and intentionally discharged a firearm, a handgun, which caused great bodily injury to James Dozier." The third verdict on the gun-allegations form is for counts 1 through 5 and is that defendant "personally and intentionally discharged a firearm, a handgun." And the final, fourth verdict on the gun-allegations form is for counts 1 through 5 and is that defendant "personally used a firearm, a handgun."
Thus, while the jury found that defendant violated section 246 by (1) "personally and intentionally discharging a firearm," and (2) "personally using a firearm," it did not find that the discharge or use "proximately cause[d] great bodily injury . . . ." (§ 12022.53, subd. (d).) The People overlook this point.
And though the jury found as to count 4 that defendant (1) personally and intentionally discharged a firearm (§ 12022.53, subd. (c)—20-year additional, consecutive term), and (2) personally used a firearm (§ 12022.53, subd. (b)—10-year additional, consecutive term), those additional, consecutive terms only apply to a person who commits felonies specified in section 12022.53, subdivision (a). Section 246 is not one of the felonies specified in section 12022.53, subdivision (a). The gang allegation is therefore the only applicable special allegation for the count-4 conviction. The true finding mandates a 15-year-to-life sentence under section 186.22, subdivision (b)(4)(B).
DISPOSITION
The judgment is modified to impose a concurrent 15-year-to-life sentence for count 4 pursuant to Penal Code section 186.22, subdivision (b)(4)(B). As so modified the judgment is affirmed. The trial court is directed to correct its minute order and abstract of judgment to reflect a concurrent two-year sentence for count 5.
WE CONCUR:
Rushing, P.J.
Elia, J.