People v. Fernandez

Citation208 Cal.App.4th 100,145 Cal.Rptr.3d 51
Decision Date31 October 2012
Docket NumberNo. B232277.,B232277.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Walter FERNANDEZ, Defendant and Appellant.

208 Cal.App.4th 100
145 Cal.Rptr.3d 51

The PEOPLE, Plaintiff and Respondent,
v.
Walter FERNANDEZ, Defendant and Appellant.

No. B232277.

Court of Appeal, Second District, Division 4, California.

Aug. 1, 2012.
Certified for Partial Publication.
*
Review Denied Oct. 31, 2012.



See 4 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Illegally Obtained Evidence, § 67.

145 Cal.Rptr.3d 52]Steven A. Brody and Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Shawn McGahey Webb, and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.

SUZUKAWA, J.

[208 Cal.App.4th 104

A jury convicted defendant Walter Fernandez of second degree robbery (Pen.Code, § 211) (count 1) 1 and willful infliction of corporal injury on a spouse, cohabitant, or child's parent (§ 273.5, subd. (a)) (count 2); as to count 1, the jury further found that (1) in the commission of the offense, the defendant personally used a dangerous and deadly weapon, to wit, a knife, within the meaning of section 12022, subdivision (b) (1), and (2) the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang, within the meaning of section 186.22, subdivision (b)(1). Defendant pled nolo contendere to possession of a firearm by a felon (§ 12021, subd. (a)(1)) 2 (count 3), short barreled shotgun or rifle activity (§ 12020, subd. (a)(1)) 3 (count 4), and possession of ammunition (§ 12316, subd. (b)(1)) 4 (count 5). The trial court imposed a sentence of 14 years.

In this appeal from the judgment, defendant contends: (1) the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his apartment; (2) the trial court abused its discretion by admitting evidence that a suspect was arrested for attempted murder in defendant's apartment; (3) there was insufficient evidence to support the true finding on the gang allegation; and (4) the trial court erred in denying defendant's Pitchess5 motion.

In the published portion of the opinion, we conclude the trial court properly denied defendant's suppression motion. In the unpublished portion,

[208 Cal.App.4th 105]

we reject defendant's remaining claims, with the exception of his contention of Pitchess error. We conditionally reverse the section 273.5, subdivision (a) conviction for the trial court to conduct an in camera review of one officer's personnel file; in all other respects, we affirm the judgment.

STATEMENT OF FACTS
I. Prosecution Case
A. Percipient Testimony

1. Abel Lopez

On October 12, 2009, at about 11:00 a.m., Abel Lopez was approached after cashing a check near the corner of 14th Street and Magnolia in Los Angeles by a man with light skin, a grey sweater, and a tattoo on his bald head. The man, whom Lopez [145 Cal.Rptr.3d 53]later identified as defendant, asked what neighborhood Lopez was from. Lopez said, “I'm from Mexico.” Defendant laughed and said Lopez was in his territory and should give him his money. He then said, “The D.F.S. rules here. They rule here.” Defendant took a knife out of his pocket and pointed it towards Lopez's chest. Lopez put up his hands to protect himself and defendant cut Lopez's wrist.

Lopez tried to run away and, while running, took out his cell phone and called 911. He told the 911 operator he needed help because someone wanted to kill him. Defendant then whistled loudly and three or four men ran out of a building on 14th Street and Magnolia. They hit Lopez in the face and all over his body, knocking him to the ground, where they continued to hit and kick him. When he got up, Lopez did not have his cell phone or wallet.6 He saw the men running back to the building from which they had come. As a result of the attack, Lopez suffered a deep cut on his left wrist and bruising and swelling over his body.

Several minutes after the attack, the police and paramedics arrived. Lopez participated in a field showup, where he identified defendant.

2. Detective Clark and Officer Cirrito

Detective Kelly Clark and Officer Joseph Cirrito responded to a police radio dispatch on October 12, 2009. Because the police dispatcher indicated possible involvement by members of the Drifters gang in an assault with a deadly weapon, Clark and Cirrito drove to an alley near Magnolia and 14th

[208 Cal.App.4th 106]

Street where they knew Drifters gathered. As they stood in the alley, two men walked by and one said, “[T]he guy is in the apartment.” The speaker appeared very scared and walked away quickly. When he returned, he again said, “He's in there. He's in the apartment.” Immediately thereafter, the detectives saw a tall, light-skinned, Hispanic or white male wearing a light blue t-shirt and khaki pants run through the alley and into the house where the witness was pointing. The house had been restructured into multiple apartments and was a known gang location. A minute or so later, the officers heard sounds of screaming and fighting from the apartment building into which the suspect had run.

Clark and Cirrito called for backup and, once additional officers arrived, knocked on the door of the unit from which they had heard screaming. The door was opened by Roxanne Rojas, who was holding a baby and appeared to be crying. Her face was red and she had a big bump on her nose that looked fresh. She had blood on her shirt and hand that appeared to come from a fresh injury. Cirrito asked what happened and she said she had been in a fight. Cirrito then asked if anyone else was inside the apartment, and she said only her son. When Cirrito asked her to step outside so he could conduct a sweep of the apartment, defendant stepped forward. He was dressed only in boxer shorts and seemed very agitated. He said, “You don't have any right to come in here. I know my rights.” Cirrito removed him from the residence and took him into custody.

While Cirrito and Clark arrested defendant at the rear of the house, two men ran out of the front of the house. Officers detained them for questioning.

After defendant was removed from the scene, officers secured the apartment. Clark then went back to Rojas, told her that defendant had been identified as a [145 Cal.Rptr.3d 54]robbery suspect, and asked for Rojas's consent to search the apartment. Rojas gave consent, orally and in writing. During the ensuing search, officers found Drifters gang paraphernalia, a butterfly knife, boxing gloves, and clothing, including black pants and a light blue shirt. None of the items stolen from the victim was ever found.

The officers interviewed Rojas about her injuries. She said that when defendant entered the apartment, she confronted him about his relationship with a woman named Vanessa. They argued, and defendant struck Rojas in the face. The officers also spoke to Rojas's four-year-old son, Christian, who told them defendant had a gun. Officers recovered a sawed-off shotgun from a heating unit where Christian told them it was hidden.

Two days later, Cirrito interviewed Rojas again. She said several times that she did not want to be a “rat” and that defendant would be very upset if he

[208 Cal.App.4th 107]

knew she was talking to the police. She denied that defendant struck her and said she had been struck in the face by Vanessa.

B. Expert Testimony
1. Defendant's Active Gang Membership

Cirrito testified for the prosecution as a gang expert, opining that defendant was an active member of the Drifters, a Latino street gang. He said that the Drifters began as a “car club,” but moved into criminal activities in the 1980's. By the 1990's, they began to engage in more violent crimes, such as assaults, carjackings, attempted murders, and narcotics sales. As of October 2009, there were about 140 active Drifters members. In 2009, defendant told officers he had been a member of the Drifters (12th Street Bagos clique) for nine years.

The Drifters' territory includes a “stronghold” in the area between 14th Street and 15th Street, and between Hoover and Menlo. The stronghold is an area where gang members can retreat if there is danger, and from which members can escape through secret passageways.

Cirrito testified that defendant had at least four tattoos that indicated his affiliation with the Drifters: “D.F.S.,” an abbreviation for Drifters, was tattooed on his leg; “Drifters” was tattooed on his back; “L.A.” was tattooed on his chest; and a gas mask and fedora were tattooed on his back. According to Cirrito, “[N]ot everyone that gets an ‘L.A.’ on there is a gang member, but there is a trend that gang members, especially the Latino gangs[,] will use that L.A. logo. It represents L.A. where they take a lot of pride [in] where they're from.” Cirrito also testified that the gas mask and fedora represent an underground rap group called Psychoheads, which “talk[ ] a lot about weed, smoking weed and so on. It's an underground group, but they're very popular with the neighborhood gangsters. A lot of gang members will put that on because, again, it's—we talk about reputation and pride in the area. Psychoheads came from the Pico Union area, which is close by that particular area of the Drifters.”

Cirrito testified that a “moniker” is a nickname typically given to a gang member. Defendant's moniker is “Blocks.” The moniker “Blocks” appeared in a Drifters “roll call” (list of active gang members) on a water heater near defendant's apartment. “Blocks” also appeared in tagging on a garage door a few days after defendant's arrest, which read “D.F.S. [Drifters], Bagos, Block [s].” “Bagos” is the Drifters clique in the area in which defendant lives.

Cirrito testified that an art book recovered from defendant's bedroom on October 12, 2009, also evidences defendant's gang [145 Cal.Rptr.3d 55]membership. Specifically,

[208 Cal.App.4th 108]

he noted that the book contains a roll call with monikers...

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