Opinion
D056842 Super. Ct. No. RIF 136340
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ANDREW SOLORIO, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from judgments of the Superior Court of Riverside County, Roger A. Luebs, Judge. Affirmed as modified in part; and reversed in part and remanded.
Vincent Andrew Solorio, Ralph Jaime Rojas and Daniel Anthony Ruvalcaba appeal their convictions of two counts of first degree murder (Pen. Code, § 187, subd. (a)) rendered in two separate trials.
Statutory references are to the Penal Code unless otherwise specified.
Solorio's case was severed from those of the other two, and he was tried and convicted in the first trial. This jury found Solorio committed the two murders in association with a criminal street gang (§ 186.22, subd. (b)) and at least one principal committed the two murders by personally and intentionally discharging a firearm (§ 12022.53, subds. (d), (e)). The jury also sustained multiple murder special circumstance allegations (§ 190.2, subd. (a)(3)). In a bifurcated proceeding, the trial court found Solorio had a prior serious/violent felony or strike conviction (§ 667, subds. (b)-(i)).
The trial court sentenced Solorio to consecutive life terms without the possibility of parole for each murder plus consecutive 25-year firearm enhancements for each murder. The court stayed sentencing on the gang enhancements.
Rojas and Ruvalcaba were tried and convicted in the second trial under a theory of aiding and abetting the two first degree murders. This jury sustained the same gang, firearm use, and multiple murder special circumstance allegations against Rojas and Ruvalcaba as did the jury in Solorio's trial. In a bifurcated proceeding, the trial court found Ruvalcaba had a prior strike conviction, a prior serious felony conviction (§ 667, subd. (a)) and a prior prison term conviction (§ 667.5, subd. (b)).
The trial court sentenced Ruvalcaba to consecutive life terms without the possibility of parole for each murder plus consecutive 25-year firearm enhancements for each murder. The court also imposed a five-year enhancement for the serious prior conviction. The court stayed sentencing on the gang enhancements and struck the prior prison term enhancement.
As to Rojas, the trial court imposed a life without the possibility of parole term plus a consecutive 25-year firearm enhancement for the first murder count. The court sentenced Rojas to a concurrent life without the possibility of parole term plus a consecutive 25-year firearm enhancement for the second murder count. The court stayed sentencing on the gang enhancements.
In his appeal, Solorio contends (1) the evidence was insufficient to support the jury's true findings on the gang allegations, and (2) since the firearm allegations were dependent on the gang allegations, the true findings on the firearm allegations should be reversed as well. Solorio also claims one of the two multiple murder special circumstance findings must be vacated, and there is a clerical error in the abstract of judgment and the clerk's minutes.
Rojas contends the evidence was insufficient to support his murder convictions, the jury's multiple murder special circumstance findings, and the jury's findings on the gang allegations. Rojas also contends the trial court erred by admitting double hearsay evidence linking him to the murders and evidence that he became a gang member after the murders took place. Additionally, Rojas asserts his defense counsel provided ineffective assistance of counsel by failing to seek bifurcation of the gang allegations. Rojas claims it was error to impose two life without the possibility of parole sentences. Rojas seeks correction of a clerical error in the abstract of judgment and clerk's minutes.
Ruvalcaba contends the evidence was insufficient to support the jury's verdicts and findings, and he received ineffective assistance of counsel because his defense counsel did not seek bifurcation of the gang allegation. Ruvalcaba also claims the trial court erred by instructing the jury it could consider gang evidence to determine motive, and the cumulative effect of the errors denied him a fair trial. Additionally, Ruvalcaba maintains the term imposed for the multiple murder special circumstance on the second murder count must be vacated and a clerical error on the sentencing minute order be corrected.
Rojas and Ruvalcaba join in arguments of their co-appellants to the extent that they would benefit thereby. (Cal. Rules of Court, rule 8.200(a)(5).)
FACTS
Background
Gina Solorio (sometimes Gina), the mother of Vincent Solorio (sometimes Vincent), was a longtime resident of Riverside on the outskirts of the Casa Blanca neighborhood. Ralph Rojas, who has known Vincent since childhood, lived in the Solorio residence. Gina considered Rojas her "adopted" son.
Gina had not legally adopted Rojas. Lucy Reynolds, Rojas's wife or girlfriend (the record is not clear), also lived with him in the Solorio residence, along with their child.
In October 2006, Gina moved out of the family residence and began living with a girlfriend in Colton because she planned to divorce her husband. On October 29, the husband went to the residence of Gina's friend with Michael Benge, a longtime friend of Vincent. As Gina went to hug Benge, he stepped away. Behind Benge was Gina's husband, who was pointing a shotgun at her. The husband pulled the trigger, but the shotgun did not fire.
By December, Gina had returned to the Solorio residence in Riverside. On December 7, Benge went to the Solorio residence, but was told to leave. Gina was mad at him for the Colton incident.
The Homicides
On the evening of December 8, 2006, Benge, age 24, invited some friends and coworkers to a pizza and beer get-together at his parents' house. Benge, whose nickname was "Buzz," and his guests spent most of the evening in the garage. Patrice and Bruce Shanks, the parents of Benge, monitored the gathering by periodically going in the garage and making sure everything was all right. Bruce Shanks described the event as "a little semi[-] Christmas get[-]together."
Benge's brother, Edward Shanks, then 18, and his sister, Denaya Shanks (Denaya), 19, were at the get-together. Also attending were Solorio, Rojas and Ruvalcaba, who arrived later than the other guests. Edward Shanks had known Solorio since they were in third grade. Edward Shanks met Ruvalcaba at about the same time and later met Rojas. According to Edward Shanks, "We just all hanged out, and always bonded." Edward Shanks also testified that Solorio and his older brother Benge had become good friends, and there was "almost like a family bond" between them. Benge also became close to Solorio's mother, Gina, and often addressed her as "mom."
The gathering in the garage was uneventful until Solorio punched Christopher Hearn in the face. Hearn had gone to school with Edward Shanks and Solorio, and had known Benge for a long time. A few days earlier Hearn had been in a fight with his father. Benge told Solorio to hit Hearn for showing disrespect to his own family.
After the Hearn incident, Solorio, Rojas and Ruvalcaba left the get-together and went to the residence of Jennie Rivera, the grandmother of Rojas. Paul Martinez, who was on the Rivera property at the time, saw the trio enter the house and meet with Rojas's uncle for about one-half hour.
Within the hour, Solorio, Rojas and Ruvalcaba returned to Benge's get-together. They were acting differently; they were noticeably standoffish. Bruce Shanks said the trio "appeared to be pretty much to themselves," and did not socialize with others at the get-together.
As the gathering was winding down, around 9:10 p.m., Benge and his sister, along with Solorio, Rojas and Ruvalcaba left the residence and walked to the nearby Stater Bros. supermarket. Two young women who had gone to school with Solorio saw him and two other Hispanic males walking behind a white male and a white female on the sidewalk in front of the supermarket. Before entering the store, the white male (Benge) yelled "East Side" and made gestures with his hands as though he was throwing a gang sign. The three Hispanic males did not react to the gang signs.
A video recording of images from the Stater Bros. store surveillance cameras showed Solorio, Rojas, Ruvalcaba, Benge and Denaya outside the store at the same time. The five of them appeared to be walking together in a friendly manner, and no one appeared to be upset.
Around 9:30 p.m., Janine and Matthew McConnell were driving to the Stater Bros. store. As Mathew McConnell was about to turn left and proceed into the parking lot, the McConnells saw a group of five individuals -- a woman and four men -- crossing the driveway entrance to the parking lot. Matthew McConnell stopped and allowed the five people to pass before turning into the lot. About 10 to 12 seconds later, the McConnells heard two gunshots. Matthew McConnell stopped the car and drove to the area of the parking lot entrance, where they believed the gunshots were fired. The McConnells saw three Hispanic males jogging away from the scene. The three had been in the group of five that the McConnells had just allowed to pass before them. The McConnells got out of their car and saw a female (Denaya) lying motionless on the ground and a male (Benge) convulsing on the ground. They were the other two people of the group of five who had crossed the driveway entrance to the parking lot. The McConnells stayed with Denaya and Benge and attempted to provide medical assistance until the police and an ambulance arrived. At trial, the McConnells were not able to identify anyone in the courtroom as being present at the scene. Victor Rosales, who was driving out of the Stater Bros. parking lot, heard gunshots and saw three males who were possibly Hispanic run in front of him. When Rosales saw two people lying on the ground, he parked his truck to offer assistance.
Denaya died at the scene. The single gunshot to her head perforated the brain stem and was instantly lethal. Stippling marks (gunshot residue) on Denaya's skin indicated that the shooter was standing about six to 12 inches away from her. Benge was taken to Riverside Community Hospital, where he later died. The cause of death was brain swelling from a gunshot to the head.
Events Following the Homicides
Martinez testified that within minutes of hearing two gunshots, he saw Solorio, Rojas and Ruvalcaba running to the Rivera residence. The trio entered the house, where they changed their clothes. After 20 minutes, they left the house. While Solorio and Ruvalcaba walked away from the property, Rojas stayed behind for a few minutes and had a brief conversation with Martinez.
In relating what he saw to the police, Martinez initially mistook Jerry Solorio, Jr., one of Vincent's brothers, for Ruvalcaba. It was only after the police showed Martinez the surveillance tape from Stater Bros. and a photograph of Ruvalcaba that he identified Ruvalcaba as the one who accompanied Vincent and Rojas to the Rivera residence.
On the night of the shootings, Solorio and Rojas, did not return to the Solorio residence. Ruvalcaba did not go home either. Solorio and Rojas also did not answer their cell phones when family members tried to reach them.
A day or two following the shootings, Gina Solorio and Patricia Revelez, who was staying at the Solorio residence at the time, picked up Vincent, Rojas and Ruvalcaba near the Tyler Mall. While they were in the car, Vincent gave his mother a watch and told her to "get rid of it." Vincent said the watch was "dirty," which meant it had blood on it, because he "was standing too close." Gina put the watch in her purse. Revelez drove Ruvalcaba to his residence, and then drove Vincent and Rojas to the Solorio family residence.
Patricia Revelez and her two daughters were staying at the Solorio family residence. The older daughter, Britaini Revelez (Britaini), had been Vincent Solorio's girlfriend for three years. At the time of the trial, Revelez and her daughters were in the witness protection program and living in another state.
This was apparently a reference to standing too close to Denaya when she was shot.
Later that day, Gina took Vincent and Rojas to a motel in Orange County. Britaini and Reynolds accompanied them. While at the motel, Gina had a conversation with Vincent and Rojas. Later, Gina told Britaini: "You know they did it," referring to the shootings. Gina said "the boys" had been walking with Benge and Denaya when Vincent pulled a gun and said, "Hey, mother-fucker, who has the gun pointed at them now[?]" Vincent then shot Benge. Vincent then told Denaya, "I'm sorry, I have to do this" before shooting her.
Gina further told Britaini that "the boys" planned to shoot Benge and had gone to his get-together "to play it off. And they had it planned for later on in the night, and [everything] fell into place." Britaini testified that Gina also told her the reason Vincent shot Benge stemmed from an incident when she had separated from her husband and was staying with a friend. Gina's husband and Benge had gone to the friend's residence and when her husband pulled a gun on her, Benge, who was standing in front of her, moved out of the way. "And she [Gina] said that he [Benge] wasn't protecting her," Britaini testified. Gina told Britaini that Denaya was shot because she witnessed the shooting of her brother.
Gina Solorio, who testified at the first trial under a grant of use immunity, denied making these comments to Britaini Revelez. Gina Solorio did not testify at the second trial.
A couple of days later, Britaini arranged to meet Vincent outside a drug store near the Stater Bros. store and asked him about the shootings. Solorio responded: "Does it really matter? Is it going to change anything?" When Britaini pressed him, Solorio responded that he shot Benge and Denaya.
Five days after the murders, police conducted a parole search for Eddie Rivera, who is Rojas's cousin, at Jennie Rivera's house. Among other things, police found an empty gun holster.
Gang Evidence
Detective Brian Smith of the Riverside Police Department's gang unit testified that Solorio and Ruvalcaba were active members of the Casa Blanca Rifa gang, which operated in one of the most violent areas of the City of Riverside. Rojas was an associate member of the gang. The primary activities of the Casa Blanca Rifa gang were the commission of murders, carjackings, violent assaults and narcotics activities. According to Smith, the crimes committed by the Casa Blanca Rifa gang members benefited the gang because people in the neighborhood knew the gang was committing violent crimes. As a result, the neighborhood people were reluctant to report gang crimes to police and to testify in court against gang members because they feared retaliation from the gang.
Smith testified the concept of respect is "the cornerstone" of gang culture. If a gang member believes he or someone in his family has been "disrespected," the gang member typically will react with violence, even murder. A gang member's stature is enhanced -- he gains respect -- by violent conduct.
The detective testified that the East Side gang is a rival of the Casa Blanca Rifa.
Evidence In Second Joint (Rojas and Ruvalcaba) Trial
For the most part, the evidence introduced at the second trial in which Rojas and Ruvalcaba were jointly prosecuted, was similar to that introduced at Solorio's trial. There were some significant differences, however.
As noted above (see fn. 7, ante), Gina Solorio did not testify at the second trial. The conversation between her and Vincent and Rojas at the Orange County motel was recounted for the jury solely through the testimony of Britaini under Evidence Code section 1230. Also, in the first trial, the prosecution presented the testimony of the police officer who responded to the incident in Colton when Benge left Gina unprotected. The prosecution did not call the officer as a witness in the joint trial.
The jury in the joint trial did not hear testimony about the night before the murders when Benge was told to leave the Solorio residence.
The jury in the joint trial did not hear testimony regarding Britaini's postmurder meeting with Vincent at the drug store near Stater Bros.
At the joint trial, Martinez was more reluctant to testify than he had been at the first trial, but the prosecution was able to present evidence of statements Rojas made to Martinez. With regard to the conversation he had with Rojas on the Rivera property, Martinez either answered no or said he could not recall when asked if Rojas had told him (1) they (Solorio, Ruvalcaba and Rojas) "just dealt with Buzz," and (2) Solorio had shot Buzz in the face. However, Martinez admitted he had testified at an earlier court proceeding that after the murders, Rojas had told him "they just dealt with Buzz" and Solorio had shot Buzz in the face. Martinez also testified Rojas told him that they needed to "get out of here." During the first trial, Martinez did not testify before the jury about the contents of Rojas's statements.
The earlier proceeding referred to an Evidence Code section 402 hearing during Solorio's trial.
Detective Smith, the prosecution's gang expert, testified in the joint trial that Rojas had become a full-fledged member of the Casa Blanca Rifa gang while he was incarcerated and awaiting trial.
The jury in the joint trial heard evidence that when Rojas and Ruvalcaba were interviewed by police each told essentially the same story -- they were outside Stater Bros. when they heard gunshots. They ran away and later met some girls, who drove them to the Tyler Mall.
DISCUSSION
I
SOLORIO'S APPEAL
A. Sufficiency of Evidence for Gang Enhancement
Solorio contends there was insufficient evidence to support the jury's finding that the murders were "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" as set forth in section 186.22, subdivision (b)(1).
Specifically, Solorio asserts the prosecution failed to present sufficient evidence that in committing the murders he harbored the specific intent to promote, further, or assist gang crime. This is so, Solorio maintains, because the murders were committed for a nongang purpose, namely, to avenge Benge's role in the confrontation between Gina Solorio and her husband when Benge stepped away and exposed Gina to a clear shot from her husband. Denaya was murdered because she witnessed the murder of her brother. Solorio claims the murders were not gang crimes because they were committed for personal reasons, and, therefore, he did not have the requisite specific intent to promote, further, or assist in gang crime.
We review the sufficiency of the evidence to support enhancement allegations under the same standard we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457 (Duran)) We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.)
A gang enhancement attaches when felonious conduct is "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 . . . ." (§ 186.22, subd. (b).) "[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs." (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez).)
The problem with Solorio's argument is that he has misread or misconstrued the statute. Section 186.22, subdivision (b)(1) does not require the specific intent to benefit the gang or a gang-related crime; "[w]hat is required is the 'specific intent to promote, further, or assist in any criminal conduct by gang members. . . .' " (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) The overwhelming majority of decisions by Courts of Appeal throughout the state have subscribed to this interpretation of the statute -- namely, section 186.22, subdivision (b) requires the specific intent to aid any criminal activity by gang members. (See, e.g., People v. Villalbos (2006) 145 Cal.App.4th. 310, 322; People v. Romero (2006) 140 Cal.App.4th 15, 20; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; People v. Leon (2008) 161 Cal.App.4th 149, 163.)
Solorio, on the hand, principally relies on one state case (People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon)), which is clearly distinguishable, and two federal opinions by the Ninth Circuit Court of Appeals (Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069), which have now been repudiated by our Supreme Court in People v. Albillar (2010) 51 Cal.4th 47, 65-66 (Albillar).)
Our Supreme Court filed the Albillar opinion during the briefing on this case. In his reply brief, Solorio acknowledges Albillar is fatal to his argument. (Albillar, supra, 51 Cal.4th 47.)
Ramon, supra, 175 Cal.App.4th 843, is of no help to Solorio because that case involved the propriety and sufficiency of expert testimony based on speculation alone. In Ramon, officers stopped the defendant, a conceded gang member, while he was driving a stolen vehicle within his gang's territory with a fellow gang member. (Id. at p. 847.) Inside the vehicle was a loaded, unregistered firearm under the driver's seat. The defendant was charged with receiving a stolen vehicle, carrying a loaded firearm in public for which he was not a registered owner and corresponding gang enhancements. A gang expert testified that the defendant's crimes would benefit his gang. The expert opined that the defendant and other gang members could conduct crimes with the stolen vehicle and unregistered gun and then dump the items, which would be difficult to trace back to the gang. (Id. at pp. 847-848.) Moreover, both items could be used to spread fear and intimidation within the gang's territory. (Id. at p. 848.) The jury convicted the defendant and found the gang allegations to be true. (Ibid.) The appellate court vacated the gang enhancements, concluding there was insufficient foundation for the expert's opinions:
"The People's expert simply informed the jury of how he felt the case should be resolved. This was an improper opinion and could not provide substantial evidence to support the jury's finding. There were no facts from which the expert could discern whether [the defendant and his companion] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]. While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence." (Id at p. 851.)
In Garcia v. Carey, supra, 395 F.3d at page 1101 and Briceno v. Scribner, supra, 555 F.3d at page 1079, divided panels of the Ninth Circuit held section 186.22, subdivision (b)(1) requires evidence that a defendant had the specific intent to further or facilitate other criminal conduct -- i.e., "other criminal activity of the gang apart from" the offenses of which the defendant was convicted.
In Albillar, supra, 51 Cal.4th at page 66, the state's high court rejected this interpretation of the statute by the Ninth Circuit and adopted the one set forth by the majority of appellate courts in the state. "[T]he scienter requirement in section 186.22, [subdivision](b)(1) -- i.e., 'the specific intent to promote, further or assist in any criminal conduct by gang members' -- is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, at p. 66.) We, of course, are bound by the Albillar conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As to the argument that section 186.22, subdivision (b)(1) requires the specific intent to promote, further, or assist a gang-related crime, the Albillar court observed:
"The enhancement already requires proof that the defendant commit a gang-related crime in the first prong -- i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at p. 67.)In other words, section 186.22, subdivision (b)(1) "applies when a defendant has personally committed a gang-related felony with specific intent to aid members of that gang." (Albillar, supra, at p. 68.)
With the law now settled, "[c]ommission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
We conclude there is substantial evidence that Solorio had specific intent to promote, further and assist criminal conduct by gang members. Solorio and Ruvalcaba were Casa Blanca Rifa gang members and Rojas was an associate of the gang. Detective Smith, the prosecution's gang expert, testified that respect toward gang members and their families is paramount in gang culture. Smith also testified that violent crimes benefit gangs because as news of their crimes is spread in the community, the level of public fear and intimidation increases. Solorio, Rojas and Ruvalcaba spent the evening together, planned the murder of Benge to avenge the "disrespect" he had shown to Solorio's mother, and retrieved the weapon from the Rivera residence. Then Solorio -- in the presence of the other two -- fatally shot both Benge and his eyewitness sister. Unlike the property crimes in Ramon, supra, 175 Cal.App.4th 843, the brazen murders of Benge and Denaya Shanks were likely to instill fear of the Casa Blanca Rifa gang in the community. The facts surrounding the murders, in conjunction with Smith's expert opinion founded on his personal knowledge of the Casa Blanca Rifa gang, constituted sufficient evidence that Solorio, Ruvalcaba and Rojas acted with the specific intent to promote, further and assist criminal conduct by gang members. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation . . . can be sufficient to raise the inference that the conduct was 'was committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22, subdivision (b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.)
The jury reasonably could have inferred that Solorio, joined by fellow gang member Ruvalcaba and associate gang member Rojas, acted with the specific intent to promote, further or assist criminal conduct by fellow gang members. The fact that Solorio also had a personal motive for murdering Benge did not remove the case from application of section 186.22, subdivision (b)(1).
Solorio argues the true findings on the firearm enhancements under section 12022.53, subdivisions (d) and (e) must also be reversed because they were dependent on the true finding on the section 186.22, subdivision (b) allegation. This argument fails because there is substantial evidence to support the gang enhancements.
B. Multiple Murder Special Circumstance Allegations Solorio contends that one of his two multiple murder special circumstance allegations found true by his jury must be vacated because the prosecution properly could allege only one multiple murder special circumstance. The Attorney General concedes Solorio is correct on this point. (People v. Zamudio (2008) 43 Cal.4th 327, 363; People v. Mickey (1991) 54 Cal.3d 612, 678; People v. Anderson (1987) 43 Cal.3d 1104, 1150 (Anderson).)
Rojas also makes the same contention. One of his multiple murder special circumstances true findings also must be vacated. Rojas's further sentencing argument based on his multiple murder special circumstances allegation will be addressed in the discussion of his appeal. (See Part II.F., post.)
C. Correction of Records Regarding Drug Program
Solorio contends that his abstract of judgment and the clerk's minutes of his sentencing hearing incorrectly indicate the court ordered him to participate in a substance abuse counseling or education program under section 1203.096. Solorio is correct, as the Attorney General concedes, because the trial court did not order him to participate in such a program.
Rojas also raises the same point, and the Attorney General concedes he is correct as well.
II
ROJAS'S APPEAL
A. Sufficiency of Evidence to Support Murder and Special Circumstances
Rojas contend the evidence was insufficient to support his murder convictions and the jury's special circumstance findings. The contention is without merit.
As Rojas was not the person who fatally shot Benge and Denaya, he was convicted of first degree murder as an aider and abettor. Rojas claims there was insufficient evidence that he (1) knew the extent of Solorio's intent to kill, and (2) provided aid or encouragement to Solorio.
" 'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence must be resolved in favor of the judgment.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) When assessing a challenge to the sufficiency of the evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
" 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Hill (1998) 17 Cal.4th 800, 851.) [T]he test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." ' " (People v. Booth (1996) 48 Cal.App.4th 1247, 1255; italics omitted.)
Generally, neither presence at the scene of the crime nor knowledge of, but failure to prevent the crime, is sufficient to establish aiding and abetting. (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) However, a jury may consider presence at the crime scene and failure to act to prevent the commission of the crime, along with companionship, flight, and conduct before and after the offense, in determining aider and abettor liability. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529 (Nguyen); People v. Jones (1980) 108 Cal.App.3d 9, 15 (Jones).)
Rojas's conviction of murder as an aider and abettor is supported by evidence of his companionship with Solorio, his presence at the scene of the crime, his actions afterward and by reasonable inferences. Rojas, who was an associate member of the Casa Blanca Rifa gang, and Solorio and Ruvalcaba, who were full-fledged members of the gang, were together the entire evening. They went as a group to Benge's get-together, left as a group to get a gun and returned as a group to the get-together. They accompanied Benge to Stater Bros. Rojas was there when Solorio shot Benge -- and subsequently Denaya -- in the parking lot, which was the first time they had Benge in a relatively isolated location. The above facts show that in addition to being present, Rojas was aware that Solorio was armed when the group went to Stater Bros. The jury could reasonably infer that Solorio, Rojas and Ruvalcaba were on a quest to murder Benge that evening. The jury also could reasonably infer that Rojas, as Gina Solorio's "adopted" son and a member of the household, was aware of Benge's act of "disrespect" to her.
Rojas's liability as an aider or abettor is also supported by evidence of his admissions. After the murders, Rojas told Paul Martinez that Solorio had shot "Buzz" in the face and "they had dealt with Buzz." Rojas also said they needed to "get out of here." Additionally, Rojas was present and said nothing when Vincent gave his bloody watch to Gina. Also, Rojas and Vincent had a subsequent conversation with Gina, in which either Vincent or Vincent and Rojas said Vincent had shot Benge and then his sister because she was a witness. Either Rojas made a direct admission along with Vincent to Gina or he adopted Vincent's admission of the murders. (See discussion in Part II.B., post.)
Evidence of Rojas's conduct after the shooting further supports the finding that he aided and abetted the murders of Benge and Denaya. Rojas fled from the crime scene along with Solorio and Ruvalcaba. The trio changed clothes. Subsequently, Rojas went to Orange County along with Solorio and other members of the household to hide out, which was another sign of consciousness of guilt. A defendant's conduct after a crime, including flight, is a relevant factor in determining liability for aiding and abetting the crime. (Jones, supra, 108 Cal.App.3d at p. 15.)
There was substantial evidence Rojas knew about Solorio's plan to kill Benge, shared in the planning and helped facilitate it. The evidence amply supported Rojas's
murder convictions as an aider and abettor of the murders.
The prosecution presented an alternate theory for Rojas's aider and abettor liability -- he aided the crime of assault with a firearm and as a "natural and probable consequence" of aiding that crime the victims were murdered. (See People v. Prettyman (1996) 14 Cal.4th 248, 262.) Rojas's murder convictions can be upheld if substantial evidence supports either theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Therefore, we need not consider whether there was substantial evidence under the natural and probable consequences doctrine.
As to the multiple murder special circumstance finding, the jury found Rojas had the requisite specific intent to kill. (§ 190.2, subd. (a)(3); Anderson, supra, 43 Cal.3d at pp. 1149-1150.) Substantial evidence -- Rojas's admissions and the other evidence referenced above -- supported this finding.
B. Admission of Double Hearsay Evidence Under Penal Interest Exception
Rojas contends the trial court committed prejudicial error by admitting incriminating statements consisting of double hearsay under Evidence Code section 1230 -- an exception to the hearsay rule for declarations against one's penal interest.
At issue is the discussion Gina had with Vincent and Rojas at the Orange County motel, where Gina had taken them, along with other members of her household, after the murders. After conversing outside the motel room with Vincent and Rojas, Gina went inside the motel room, asked Reynolds to leave the room and proceeded to tell Britaini about her just completed conversation with Vincent and Rojas. Gina related that she had talked to "the boys" and Vincent had told her what had happened -- that Vincent shot Benge and then shot Denaya because she witnessed the shooting of Benge. Gina also related to Britaini that "the boys" had planned to kill Benge and had subsequently gone to Benge's get-together to "play off" their plan and everything "fell into place" when they and Benge went to Stater Bros. Gina also told Britaini the reason the "boys" killed Benge was to avenge the "disrespect" Benge had displayed to Gina when he stepped away, leaving her directly in the line of fire from a shotgun held by her estranged husband, who was angry that she was having an affair. Over objection, the trial court allowed Britaini to testify about what Gina had told her in the motel room under Evidence Code section 1230.
At Vincent's earlier trial, this evidence came in through the testimony of Britaini as prior inconsistent statements because Gina, testifying under a grant of immunity, denied she had related this information to Britaini. However, in the second trial of Rojas and Ruvalcaba, Gina indicated regardless of the immunity issue, she was going to refuse to testify and then did not show up at trial. The trial court allowed Britaini to testify as to what Gina had told her under Evidence Code section 1230. The court found what Vincent or Vincent and Rojas told Gina constituted declarations against penal interests as did what Gina related to Britaini. The court found Gina's statements to Britaini exposed her to liability as an accessory (§ 32).
Generally, hearsay evidence, which "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" (Evid. Code, § 1200, subd. (a)), is inadmissible. (Evid. Code, § 1200, subd. (b).) "The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross- examine the declarant, and the jury cannot observe the declarant's demeanor while making the statements." (People v. Fuentes (1998) 61 Cal.App.4th 956, 960-961.)
There are exceptions to the general rule of inadmissibility, including Evidence Code section 1230, which provides an out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant's penal interest. The core of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the statements made by the declarant. (People v. Geier (2007) 41 Cal.4th 555, 584.) The exception is based on the premise that a person generally does not make statements that are against his interest. (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 146, p. 857.) When a person does so, his statements are reasonably considered reliable when offered against him. "The statement must be so far contrary to the declarant's interests 'that a reasonable man in his position would not have made the statement unless he believed it to be true.' [Citations.]" (Ibid.)
Evidence Code section 1230 specifically states in pertinent part: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
The proponent of evidence under Evidence Code section 1230 must establish that the declarant is unavailable, the statement is against his penal interest and the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Cudjo (1993) 6 Cal.4th 585, 607.) "A trial court determining whether the proffered evidence is sufficiently reliable ' "may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." ' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 462.)
Because of concerns that declarations against penal interest may contain self-serving and unreliable information, the hearsay exception generally does not "apply to collateral assertions within declarations against penal interest." (People v. Campa (1984) 36 Cal.3d 870, 882.) Further, "[e]ven a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, . . . 'whether a statement is self-inculpatory or not can only be determined by viewing it in context.' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) Thus, if the statement " 'is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others)[, it] does not meet the test of trustworthiness and is thus inadmissible.' [Citations.]" (Ibid.) In such instances, only those portions of the declaration that were "specifically disserving" (People v. Leach (1975) 15 Cal.3d 419, 441) to the declarant's penal interests would be admissible under Evidence Code section 1230.
There are two levels of hearsay involved here. In multiple hearsay instances, the question is whether each hearsay statement fell within an exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 224-225.) Thus, we examine if the statement against penal interest exception applies to both levels of hearsay.
As to the first level of hearsay -- what Vincent or Vincent and Rojas told Gina -- it is clear the declarant was unavailable. Both Vincent, who had been convicted of the murders in his earlier trial and was awaiting sentencing, and Rojas, who was one of two defendants on trial, could not be compelled to testify. (See People v. Leach, supra, 15 Cal.3d at p. 438.) There also is no dispute that the statements were made against Vincent's and Rojas's penal interests. Regarding the trustworthiness of the statements, there were indicia that the declarations were sufficiently reliable under Evidence Code section 1230. Vincent and Rojas were talking to their biological mother and "adopted" mother respectively, and the crimes were intended to avenge an act of "disrespect" to her. There simply was no reason for Vincent and/or Rojas to lie to Gina. Therefore, what Vincent or Vincent and Rojas told Gina met the trustworthy requirements for the statement against penal interest exception to the hearsay rule. (Evid. Code, § 1230.)
It is unclear whether only Vincent made the incriminating statements or if Vincent and Rojas jointly made the incriminating statements. At an Evidence Code section 402 hearing, Britaini testified that Gina, in relating the incriminating statements to her, said she had talked to Vincent and he told her what had happened. Britaini also testified that Gina said she had talked to "the boys" and they told her what had happened. For purposes of this appeal, we will assume that Rojas at least adopted the incriminating statements because he was present and did not voice any objection to them. (See People v. Silva (1988) 45 Cal.3d 604, 624 [defendant's silence upon hearing incriminating statement reasonably leads to inference he believes statement to be true]; see also Evid. Code, § 1221.) In other words, Rojas by his conduct (making no objection or denial) made the incriminating statements his own by admitting the truth; his conduct thus expresses the same statement made by the declarant. (See 1 Witkin, Cal. Evidence, supra, Hearsay, § 102, p. 805.) To the extent, the trial court rejected an adopted admission analysis, it was mistaken.
As to the second level of hearsay -- what Gina said to Britaini -- again the first requirement of Evidence Code section 1230 is clearly met: Gina, who did not appear at trial after indicating she was going to refuse to testify, was unavailable. (See Evid. Code, § 240.) The trial court found that Gina's statements to Britaini were against her penal interests because they exposed her to criminal liability as an accessory after the fact. Relying upon People v. Wilson (1993) 17 Cal.App.4th 271, the trial court said: "I agree the statements by Gina are not by themselves statements against penal interest. But given her conduct concealing the boys at the motel, and the other evidence that this continued thereafter it seems to me that it does fall within the Wilson holding. And I agree there is some lack of clarity, but I think there is sufficient evidence to lay the foundation under [Evid. Code, § 1230]. And the issues with respect to credibility and reliability generally are subject to cross-examination." The court acted within its discretion in making this finding. Gina's liability as an accessory involved ongoing conduct in harboring Vincent and Rojas from arrest.
Regarding the reliability of what Gina related to Britaini, we note that Gina made the statements to a member of her household in a noncoercive setting, and there was no apparent motive for Gina to lie to Britaini. Gina's statement was sufficiently reliable to meet the trustworthiness requirement of Evidence Code section 1230.
However, there is a wrinkle because the record is unclear whether, in relating to Britaini what "the boys" told her, Gina supplemented their statements with her own. Because of this uncertainty in the record, we must consider whether Gina's entire statement to Britaini was properly admitted against Rojas under Evidence Code section 1230. This is so because what Gina told Britaini was admissible as to Rojas as an exception to the hearsay rule for statements against penal interest only to the extent that Gina was relating what "the boys" had told her -- and not for statements originating with Gina.
From our reading of the Evidence Code section 402 hearing with Britaini, it is clear that "the boys" told Gina what had occurred -- Vincent had shot Benge and then shot Denaya because she was a witness. However, it is less clear whether (1) "the boys" told Gina about the planning behind the murders and the reason why Benge was murdered or (2) whether Gina was supplying this information on her own. At the Evidence Code section 402 hearing, Britaini was certain that Gina told her that Vincent or "the boys" related the events as they happened. However, Britaini was not sure whether what Gina had told her about the planning and the reason for the murder was "just [Gina] telling me stuff," or what "the boys" had said. If Gina was the original source for this latter information that she conveyed to Britaini, it was not properly admitted against Rojas under Evidence Code section 1230. The rationale for admitting the double hearsay evidence was that "the boys" made incriminating statements which were presumably true because the statements were against their penal interests. The rationale evaporates if Gina embellished "the boys[']" statements with her own ideas. Given the ambiguity in the record in this regard, we conclude it was error to admit the latter information under Evidence Code section 1230.
The planning aspect --whether the murder of Benge was planned as opposed to Vincent doing something on his own -- was very significant to Rojas and Ruvalcaba who were being prosecuted as aiders and abettors to the murders.
The question remains whether the error was harmless. Improper admission of evidence under Evidence Code section 1230 is reversible if it is reasonably probable a result more favorable to the defendant would have been reached absent the admission of the evidence. (Duarte, supra, 24 Cal.4th at p. 619.) Given the other strong and compelling evidence against Rojas, we conclude the error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 834-837 (Watson))
There was an abundance of direct evidence that Rojas had spent the evening with Solorio and Ruvalcaba and was present when Solorio murdered Benge and his sister. Witnesses at Benge's get-together in the garage testified that Rojas and the other two were there, left together and came back together. The Stater Bros. surveillance tape put the trio, along with Benge and Denaya, at the supermarket shortly before the murders. The jury reasonably could infer that Solorio, Rojas and Ruvalcaba obtained the gun during their first visit to the residence of Jennie Rivera.
Moreover, as the "adopted" son of Gina, Rojas was likely to know of the "disrespect" that Benge had displayed to Gina. Therefore, the jury reasonably could assign personal motives to Rojas, as well as Vincent, for the murder, and not just the gang respect motive supplied by the prosecution's gang expert.
Furthermore, Rojas made other damaging statements against his penal interest to Paul Martinez shortly after the murders. Although Martinez was reluctant to testify because he feared repercussions and much of Martinez's testimony had to be read into the record from his testimony at a hearing during Solorio's earlier trial, the jury heard that Rojas told Martinez "they [had] just dealt with Buzz [Benge]," and Solorio had shot Benge in the face. Martinez also testified that Rojas, Solorio and Ruvalcaba changed clothes at Jennie Rivera's residence and Rojas subsequently said they needed "to get out of here." The jury also heard additional damaging consciousness of guilt evidence against Rojas -- he hid out in an Orange County motel with Solorio.
Given the evidence as a whole, we find it was not reasonably probable that a more favorable outcome would have resulted for Rojas if the latter parts of Gina's statements to Britaini were not erroneously admitted.
C. Introduction of Evidence that Rojas Became Gang Member While Incarcerated
Rojas contends the trial court committed prejudicial error by admitting evidence that he became a gang member after the shootings. We disagree; if there was error, it was not prejudicial.
Before the second trial, Rojas's counsel objected to the admission of expert opinion that Rojas was a gang member. Defense counsel noted that the prosecution's only evidence of gang-related contact by Rojas was his involvement in the double homicide. The prosecutor responded that his expert would testify Rojas was not a member of Casa Blanca Rifa, but he was an associate or affiliate of the gang as the expert had testified at Solorio's earlier trial. Later, however, the prosecutor told the court that monitored phone calls at the jail indicated Rojas had joined the Casa Blanca Rifa gang while incarcerated. The prosecutor requested photographs be taken of Rojas's upper torso to see if had gang-related tattoos. The court granted the request.
A photograph of Rojas taken on May 16, 2007, five months after the murders, showed that Rojas did not have any Casa Blanca Rifa gang tattoos.
The new photographs taken after Rojas had been incarcerated for more than two years showed that Rojas had a "C" and "B" tattoo. Therefore, in addition to testifying that Rojas was not a member but rather an associate or affiliate of the Casa Blanca Rifa gang at the time of the murders, the gang expert was allowed to testify that the new tattoo signified that Rojas had become a member of the Casa Blanca Rifa gang while in jail.
We agree that this postcrime evidence had little relevance to the charges against Rojas. However, assuming without deciding whether the admission of such evidence was an abuse of discretion, Rojas has not demonstrated prejudice. During cross-examination of Smith, counsel brought out that gang membership in custodial settings sometimes protects an inmate from attacks by other inmates. Therefore, the jury was unlikely to be unduly shocked or negatively influenced by testimony that Rojas had joined the Casa Blanca Rifa gang while incarcerated. Moreover, given the overwhelming evidence of his guilt (see Part II.A., ante), it is not reasonably probable the jury would have returned a more favorable verdict to Rojas if the court had not admitted the challenged evidence. (People v. Venegas (1998) 18 Cal.4th 47, 93; Watson, supra, 46 Cal.2d 818, 836.)
D. Counsel's Failure to Seek Bifurcation of Gang Allegations
Rojas contends his trial counsel provided ineffective assistance of counsel by not seeking to bifurcate the trial of the gang allegation from the trial of the charged offenses. The contention is without merit.
A defendant bears the burden of proving ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To establish constitutionally inadequate assistance of counsel, the defendant must prove (1) deficient performance by counsel as determined by prevailing professional standards, and (2) prejudice, or a reasonable probability that, but for the deficient performance, the trial would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; In re Cudjo (1999) 20 Cal.4th 673, 687.) To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Strickland, supra, at p. 693.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; see People v. Weaver (2001) 26 Cal.4th 876, 961.)
When a claim of ineffective assistance of counsel is based on counsel's failure to make a motion, the defendant must show that had reasonably competent counsel made such a motion, it would have been successful. (People v. Grant (1988) 45 Cal.3d 829, 864-865.) Rojas cannot show ineffective assistance of counsel because the trial court was not likely to grant a bifurcation motion.
A trial court has discretion to bifurcate the trial of a gang enhancement. (Hernandez, supra, (2004) 33 Cal.4th at pp. 1044, 1049.) However, "the trial court's discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged. " (Id. at p. 1050, italics added.) "[A] criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. " (Id. at p. 1048.) "To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] [¶] Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself -- for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged -- a court may still deny bifurcation." (Hernandez, supra, at pp. 1049-1050.)
Furthermore, gang evidence is relevant and admissible when the motive for the underlying crime is gang related. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) Here, Detective Smith testified about the importance of respect in gang culture. Smith testified that if a gang member believes he or someone in his family has been "disrespected," the gang member usually will react with violence. The gang evidence tended to explain why the murders took place. Where evidence of gang activity or membership is important to motive, it can be introduced even if prejudicial. (People v. Martin (1994) 23 Cal.App.4th 76, 81.)
Because it was not reasonably probable that the trial court would have granted a motion to bifurcate the gang allegation, Rojas has failed to establish he received ineffective assistance of counsel or was prejudiced by counsel's asserted failing.
E. Sufficiency of Evidence for Jury Findings on Gang Allegations
Rojas contends the jury's true finding on the gang allegation was not supported by sufficient evidence because the prosecution failed to show the Casa Blanca Rifa gang's primary activities qualified it as a criminal street gang within the meaning of the statute. Specifically, Rojas claims there was insufficient evidence that one of the primary activities of the gang was a qualifying statutorily specified felony. We disagree.
A criminal street gang is (1) an ongoing organization, association, or group of three or more persons with a common name or common identifying symbols, (2) having as one of its primary activities the commission of one or more of specified crimes, and (3) whose members either separately or as a group have engaged in a pattern of criminal activity. (§ 186.22, subd. (f).) The first and third elements are not at issue here.
A pattern of criminal gang activity exists when "gang members have, within a certain time frame, committed or attempted to commit 'two or more' of specified criminal offenses." (People v. Gardeley (1996) 14 Cal.4th 605, 610.) The gang's primary activity may be established either by expert testimony that the gang is known for committing one or more of the 33 crimes enumerated in section 186.22, subdivision (e), or by evidence of consistent and repeated commission of statutorily enumerated crimes. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) "The phrase 'primary activities' . . . implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (Id. at p. 323.)
When asked what were the primary activities of the Casa Blanca Rifa gang at the time of the murders, Detective Smith responded: "There is documentation to prove they're involved in car-jackings, criminal threats, witness intimidation, violent assaults, petty theft, robbery and murder." Smith also testified he was familiar with the investigation of some of these crimes.
Citing In re Alexander L. (2007) 149 Cal.App.4th 605, Rojas contends that since Smith failed to specifically opine that the Casa Blanca Rifa gang's primary activities involved the commission of qualifying criminal offenses, there is insufficient evidence that it is a criminal street gang under the statute.
In In re Alexander L., supra, 149 Cal.App.4th 605, the only evidence in support of the primary activities element was the testimony of a gang expert who, when asked about the gang's primary activities, responded: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.) The Court of Appeal found the expert's testimony was insufficient because he did not explain the basis for his knowledge or provide the details of any particular crimes and he did not "directly testify that criminal activities constituted [the gang's] primary activities." (Id. at p. 612.) The appellate court noted that it could not assess whether the expert's "testimony on this point was reliable, because information establishing reliability was never elicited from him at trial." In other words, the gang expert's "testimony lacked an adequate foundation." (Ibid.) Consequently, the appellate court concluded it was "impossible to tell whether his claimed knowledge of the gang's activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay." (Ibid.)
This case is clearly distinguishable because there was an adequate foundation for the gang expert's testimony. Also, the expert's testimony was not the only form of proof offered of the gang's primary activities.
Detective Smith, a 14-year veteran of the Riverside Police Department, testified he had investigated crime in and around the Casa Blanca neighborhood from petty theft to murder. Smith, who joined the department's gang unit two years prior to the trial, had interviewed Casa Blanca Rifa gang members at least 50 times and was familiar with the gang's history, writings and photographs. Thus, his opinions regarding the Casa Blanca Rifa gang were based on his own experience dealing with the gang, his contact with gang members, his conversations with colleagues and Riverside Police Department gang unit investigators, and police reports. Further, as to the gang's primary activities, Smith relied on documentation -- not unreliable hearsay -- and his familiarity with the investigations of the crimes in testifying about the gang's primary activities. Smith also testified regarding four predicate crimes committed by members of the Casa Blanca Rifa gang. These included two murder cases and one attempted murder case involving four victims.
Rojas's argument that Smith's testimony was insufficient to establish the primary activities of the Casa Blanca Rifa gang is unpersuasive. As indicated above, our Supreme Court's authority on this issue teaches that primary activities may be proven by expert testimony or by evidence of consistent and repeated crimes. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620.) In this, case the prosecution introduced both types of evidence. There was substantial evidence of the Casa Blanca Rifa gang's primary activities.
Rojas also adopts and joins in Ruvalcaba's argument attacking the true findings on the gang enhancement allegations because there was insufficient evidence that in committing the murders he harbored the specific intent to promote, further, or assist any criminal conduct by gang members. (§ 186.22, subd. (b)(1).) This argument was extensively discussed in our discussion of Solorio's appeal. (See Part I.A., ante.) As we observed, our Supreme Court's recent opinion in Albillar, supra, 51 Cal.4th 47, resolved the issue and shows why the argument raised by Ruvalcaba, and joined in by Rojas, is unavailing.
F. Life Without Possibility of Parole Sentence on Second Murder Count
Rojas contends that because the prosecution improperly alleged more than one multiple murder special circumstance, his concurrent sentence of life without the possibility of parole on the second first degree murder count must be vacated. The contention is without merit.
Although the multiple murder circumstance can be alleged only once per case, it may be used to impose multiple sentences of life without parole on multiple murder counts in a single proceeding. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1562-1564.)
III
RUVALCABA'S APPEAL
A. Admission of Double Hearsay Under Penal Interest Exception
Ruvalcaba has joined in Rojas's contention that the trial court erred by admitting double hearsay evidence of incriminating statements made by "the boys" to Gina at the Orange County motel. (See Part II.B., ante.) Although we incorporate by reference our earlier discussion of the facts surrounding the conversations at the Orange County motel and the legal principles concerning Evidence Code section 1230, we address this issue as it applies to Ruvalcaba separately.
As is the case with Rojas, the record is not clear whether Gina, in relating her conversation with "the boys" to Britaini supplemented what "the boys" had said with her own information. Thus, for the same reasons, we similarly find it was error as to Ruvalcaba to admit what Gina told Britaini regarding the planning of the murders and why they were committed.
Ruvalcaba, unlike Rojas, was not present when the incriminating statements were made. Although this distinction has implications for Ruvalcaba's Sixth Amendment rights under Bruton v. United States (1968) 391 U.S. 123, we will not reach the constitutional issues because we can resolve the issue on the basis of state statutory law on the admissibility of evidence. "[W]e do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us." (People v. Williams (1976) 16 Cal.3d 663, 667; People v. Leonard (1983) 34 Cal.3d 183, 187.)
Here, Gina went outside the motel room to talk to Vincent and Rojas. After talking with "the boys," Gina went inside the room for a private chat with Britaini about "the boys." Specifically, Gina related "the boys" told her that they had killed Benge and his sister. "The boys" are Vincent and Rojas -- they are the ones with whom Gina had just finished talking. Ruvalcaba was in Riverside County at the time.
Did "the boys," -- that is, Vincent and Rojas -- include Ruvalcaba in telling Gina about the murders? Or, were Vincent and Rojas confessing that only the two of them committed the murders to avenge the "disrespect" shown to their birth mother and "adopted" mother, respectively? From this record, we cannot tell. Gina's use of "the boys" was too unclear. The jury heard evidence that Ruvalcaba spent the evening of December 8, 2006 with Vincent and Rojas, including the excursion to Stater Bros., and that he ran from the murder scene with them. But it does not necessarily follow that Ruvalcaba knew that the goal of the evening was to kill Benge. The jury did not hear direct evidence that Ruvalcaba was even aware of the "disrespect" Benge had shown to Gina. Nonetheless "the boys[']" incriminating statements as Gina related them to Britaini suggests Ruvalcaba might have been aware of Benge's "disrespect" and knowingly went along on the "the boys[']" mission that night.
A trial, however, is a search for the truth based on facts and admissible evidence -not on speculation. We conclude the questionable and vague aspects of Gina's statements regarding "the boys" was too easily susceptible to speculation regarding Ruvalcaba, and none of the double hearsay should have been admitted against him.
The question remains whether the error was prejudicial. The applicable standard is the reasonably probable standard of Watson, supra, 46 Cal.2d 818. (Duarte, supra, 24 Cal.4th at p. 619.) We conclude the error was prejudicial and requires reversal.
The evidence against Rojas was much stronger than the evidence against Ruvalcaba. Ruvalcaba, unlike Rojas, did not make damaging statements to Martinez. Although Ruvalcaba ran from the murder scene, he did not hide out in an out-of-county motel as did Rojas and Solorio. Moreover, while Vincent and Rojas had a familial motive -- as perverted as it may have been -- for murdering Benge, there was no evidence that Ruvalcaba had such a motive or even that he was aware of Benge's act of "disrespect" to Gina Solorio. Motive, of course, is not a crime element and is not subject to proof beyond a reasonable doubt. Nonetheless, in cases where circumstantial evidence is relied upon for conviction, motive evidence can be an important factor for the jury to consider. (People v. Rodis (1956) 145 Cal.App.2d 44, 47.) In the case of Ruvalcaba, as opposed to Rojas, the jury was left only with one possible motive -- avenging "disrespect" toward a fellow gang member's family from the prosecution's gang expert's testimony. Furthermore, according to the prosecution's theory, Solorio retrieved a gun at Jennie Rivera's residence. This is significant as to Ruvalcaba because Martinez initially identified someone else as accompanying Solorio and Rojas to Jennie Rivera's residence to retrieve a gun. (See fn. 4, ante.) Thus, there was room for some question whether Ruvalcaba was aware that Solorio was armed with a gun.
In aider and abettor liability, it is critical whether the defendant knew the perpetrator was going to commit a particular crime and acted with the requisite intent of the crime. The double hearsay evidence implied -- or at least lent itself to an interpretation -- that Ruvalcaba, as one of "the boys," had such knowledge and intent. But the vagueness of the double hearsay testimony did not establish that Ruvalcaba was one of "the boys" being referred too. We conclude it is reasonably probable that Ruvalcaba would have received a more favorable outcome without admission of the double hearsay evidence.
B. Sufficiency of the Evidence for Murder, Special Circumstances
Findings and Gang Allegations
Ruvalcaba contends insufficient evidence supported his murder convictions, and the jury's findings on the special circumstances and the gang enhancements. The contention is without merit.
As was the case for Rojas, Ruvalcaba was tried for the murders of Benge and Denaya on an aiding and abetting theory of liability.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine " 'whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft, supra, 23 Cal.4th 978, 1053.)
The law imposes criminal liability on all "principals" to a crime. (§ 31; Nguyen, supra, 21 Cal.App.4th at p. 529.) Principals include persons "concerned" in the commission of the crime, "whether they directly commit the act constituting the offense, or aid and abet in its commission. . . ." (§ 31.) "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, [and] (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) The mental state necessary to convict a defendant as an aider and abettor is different from the mental state necessary to convict an actual perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.) "The actual perpetrator must have whatever mental state is required for each crime charged. . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (Id. at p. 1123.)
Ruvalcaba claims there was insufficient evidence that he (1) knew the extent of Solorio's intent to kill, and (2) provided aid or encouragement to Solorio.
Ruvalcaba's conviction of murder as an aider and abettor is supported by evidence of his companionship with Solorio, his presence at the scene of the crime, his actions afterward and by reasonable inferences. (Nguyen, supra, 21 Cal.App.4th at pp. 529-530.) Ruvalcaba and Solorio, were members of the Casa Blanca Rifa gang. Ruvalcaba, Solorio and Rojas had been friends since childhood and were extremely close. On the day of the murders, Britaini saw Ruvalcaba, Solorio and Rojas at the Solorio residence and they left the house together. Ruvalcaba, Solorio and Rojas spent the entire evening together. They went as a group to Benge's get-together, left as a group to get a gun and returned as a group to the get-together. They accompanied Benge to Stater Bros. Ruvalcaba was there when Solorio shot Benge, and subsequently Denaya, in the parking lot, which was the first time they had Benge in a relatively isolated location. From the above facts the jury reasonably could have concluded that Ruvalcaba was not only present at the murder scene, but also was aware that Solorio was armed when the group went to Stater Bros. The jury could reasonably infer from their close friendship and common gang membership that Vincent had told Ruvalcaba about the incident between Benge and Gina and they discussed what they were going to do to avenge Benge's "disrespect" shown to Gina. The evidence accounted above also raised a reasonable inference that Ruvalcaba, Solorio and Rojas were on a quest to murder Benge that evening.
Evidence of Ruvalcaba's conduct after the shooting further supports the finding that he aided and abetted the murders of Benge and Denaya. Ruvalcaba fled from the crime scene along with Solorio and Rojas. The trio changed clothes. Subsequently, Ruvalcaba, Solorio and Rojas went to the Tyler Mall area of Riverside to hide out, which was another sign of consciousness of guilt. A defendant's conduct after a crime, including flight, is a relevant factor in determining liability for aiding and abetting the crime. (Jones, supra, 108 Cal.App.3d at p. 15.)
There was substantial evidence from which a jury reasonably could have inferred that Ruvalcaba knew about Solorio's plan to kill Benge, shared in the planning and helped facilitate it. The evidence sufficiently supported Ruvalcaba's murder convictions as an aider and abettor of the murders.
Sufficient evidence also supported the multiple murder special circumstances findings against Ruvalcaba. The jury found Ruvalcaba had the requisite specific intent to kill. (§ 190.2, subd. (a)(3); Anderson, supra, 43 Cal.3d at pp. 1149-1150.) Substantial evidence supported multiple murder special circumstances findings against Ruvalcaba.
The jury's findings on the gang allegations against Ruvalcaba also were supported by substantial evidence. (See fn. 19, ante, and discussion in Part I.A., ante.)
B. Counsel's Failure to Seek Bifurcation of Gang Allegations
Ruvalcaba contends he received ineffective assistance of counsel because counsel did not seek a separate trial on the gang allegations. Rojas has raised the same issue. (See Part II.D, ante.) We reject Ruvalcaba's contention for the same reasons.
C. Instruction that Jury Could Consider Gang Evidence to Determine Motive
Ruvalcaba, along with Rojas (see fn. 2, ante), contends the trial court erred by instructing the jury that it could consider the gang evidence only on the issues relevant to the gang enhancements, the motive for the crime and the credibility of witnesses. (See CALCRIM No. 1403.) The contention is without merit.
The jury was instructed as follows: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that required to prove the gang-related enhancements charged: [¶] OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other person. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
"Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]" (People v. Martin (1994) 23 Cal.App.4th 76, 81.) In Hernandez, supra, 33 Cal.4th 1040, our Supreme Court noted gang evidence may be relevant to "identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at p. 1048.)
Generally, when gang evidence is properly admitted for limited purposes, CALCRIM No. 1403 is "neither contrary to law nor misleading," as "[i]t states in no uncertain terms that gang evidence is not admissible to show that the defendant is a bad person or has a criminal propensity," and "allows such evidence to be considered only on the [germane] issues." (People v. Samaniego, supra, 172 Cal.App.4th 1148, 1168.)
Ruvalcaba argues that in his trial the motive part of the instruction was not supported by substantial evidence because Solorio, in murdering Benge and his sister, acted for personal reasons rather than gang reasons. We disagree.
A trial court must instruct on general principles of law that are closely connected with the evidence and necessary for the jury's understanding of the case. (People v. Carter (2003) 30 Cal.4th 1166, 1219.) Detective Smith testified that respect is of upmost importance in gang culture and that gang members react to "disrespect" with acts of violence. Smith also testified that murder was among the primary activities of the Casa Blanca Rifa gang. The gang expert noted that the stature of a gang member as well as that of the gang is heightened by, among other things, violent conduct. Because the gang evidence suggested a gang motive for the murders, the instruction was proper.
DISPOSITION
As to Solorio, the trial court is directed to vacate one of the multiple murder special circumstance true findings. The trial court is further directed to amend the abstract of judgment, as well as the clerk's minutes of Solorio's sentencing hearing, by deleting reference to participation in a substance abuse counseling or education program under section 1203.096. The trial court is directed to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.
As to Rojas, the trial court is directed to vacate one of the multiple murder special circumstance true findings. The trial court is further directed to amend the abstract of judgment, as well as the clerk's minutes of Rojas's sentencing hearing, by deleting reference to participation in a substance abuse counseling or education program under section 1203.096. The trial court is directed to forward a copy of the amended abstract of justice to the California Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.
As to Ruvalcaba, the judgment is reversed. The case is remanded to the trial court for a new trial.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.