State v. Gonzalez
| Decision Date | 27 January 2015 |
| Docket Number | No. 20120945.,20120945. |
| Citation | 2015 UT 10,345 P.3d 1168 |
| Parties | STATE of Utah, Appellee. v. Jose Angel GONZALEZ, Appellant |
| Court | Utah Supreme Court |
Nisa J. Sisneros, Samuel J. Hanseen, Nathalie S. Skibine, Salt Lake City, for appellant.
Sean D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City, for appellee.
INTRODUCTION
¶ 1 Jose Angel Gonzalez was convicted of murder with an enhancement for criminal street gang activity, obstruction of justice, and possession or use of a dangerous weapon by a restricted person. On appeal, Mr. Gonzalez argues that the trial court erred by (1) denying his motion for directed verdict on the murder and obstruction-of-justice charges, (2) permitting the State to present allegedly cumulative and unfairly prejudicial gang-related evidence, and (3) dismissing as untimely his constitutional challenge to the gang-enhancement statute. We affirm the trial court on all issues.
¶ 2 Mr. Gonzalez is a member of the Dog Town street gang, which is affiliated with the Sureño street gang.1 He has several gang-related tattoos, including the words “Dog Town” tattooed in large print across his forearm. Mr. Gonzalez is known among fellow Dog Town members by the moniker “Flaco.” On the afternoon of August 9, 2011, Mr. Gonzalez and his girlfriend Alexis had been at a friend's house in West Valley, Utah. After getting into an argument with Mr. Gonzalez, Alexis left the friend's house and walked toward a nearby Kohl's department store. Mr. Gonzalez followed Alexis, and the two made up shortly before reaching Kohl's. Alexis then went inside Kohl's to use the restroom while Mr. Gonzalez waited outside the store entrance.
¶ 3 While Mr. Gonzalez was waiting alone outside Kohl's, George Davila, his girlfriend Anjelica, her sister Alma, and Alma's four-year-old son Miguel walked past Mr. Gonzalez. Mr. Davila had been a member of Familia Por Siempre, a Norteño-affiliated gang2 and a Dog Town rival, but had recently joined an independent street gang, QVO. Mr. Davila had gang-related tattoos, but none were visible to Mr. Gonzalez. Mr. Davila, however, noticed the “Dog Town” tattoo on Mr. Gonzalez's forearm, and the two exchanged aggressive words.3 Anjelica, who was a former Kohl's employee, then went into Kohl's to complete some paperwork while Mr. Davila, Alma, and Miguel went next door to a shoe store.
¶ 4 While Mr. Davila was at the shoe store, Mr. Gonzalez remained outside Kohl's and spoke on a cell phone with two friends, Rosa and Robie. Several other phone calls and text messages were exchanged between Rosa, Robie, and other members of the Dog Town gang. One such text message stated, “flacoz getting down.”
¶ 5 A short time later, Mr. Davila, Alma, and Miguel returned to Kohl's, entering through a different entrance, and went to the customer service desk to meet Anjelica. Mr. Davila and Miguel then went to the men's restroom near the customer service desk. Approximately one minute later, Mr. Gonzalez entered Kohl's, went back to the customer service desk with Alexis, and approached the men's restroom. Surveillance cameras showed Mr. Gonzalez giving Alexis a one-armed hug while maintaining his other hand in his pocket just before entering the restroom. An eyewitness testified that she heard Alexis urge Mr. Gonzalez to “just let it go.”
¶ 6 Mr. Gonzalez then entered the restroom, propping the door open with his foot. Mr. Gonzalez asked Mr. Davila, “What's up ese?” to which Mr. Davila responded, “I'm not your ese,” and within seconds the two men began fighting. Miguel saw Mr. Gonzalez use a knife to “shank[ ]” Mr. Davila. The fight lasted less than a minute and spilled out into the customer service area before Mr. Gonzalez fled the scene with Alexis, dropping a knife in the store as he left. Mr. Davila, who was bleeding from the side of his abdomen, ran outside with Anjelica, Alma, and Miguel to drive to Pioneer Valley Hospital.
¶ 7 As Mr. Davila was fleeing Kohl's, Dog Town members gathered in the Kohl's parking lot. The congregated Dog Town members yelled toward Mr. Davila, “Die fucker, die” and “Dog Town!” as he was getting into the car to go to the hospital. Two of the Dog Town members then entered Kohl's, quickly walked around the store, briefly spoke to the store manager about the fight and stabbing, and walked out again.
¶ 8 Angelica, Alma, and Miguel accompanied Mr. Davila to the hospital. Police arrived soon after. While they were questioning Miguel just outside the hospital, Miguel recognized two men he had seen in the Kohl's parking lot walking toward the hospital entrance and notified one of the officers. The officers stopped the men and found them carrying a bat and a knife. The two men were identified as members of Dog Town and were taken into custody and questioned regarding the incident.
¶ 9 Police later located Mr. Gonzalez, took him into custody, and interviewed him. Mr. Gonzalez admitted to stabbing Mr. Davila but claimed that he had acted in self-defense and used a knife because Mr. Davila was larger and stronger than he.4 Mr. Gonzalez stated that after the fight, he went home, washed in a bowl of water, changed shirts, then drove around West Valley and threw his bloody shirt down a storm drain, knowing the police may be interested in it. Pursuant to a search warrant, officers recovered from Mr. Gonzalez's home the hat Mr. Gonzalez was wearing in the Kohl's surveillance video, a blue bandanna, and a pair of shorts, each bearing Dog Town gang symbols.
¶ 10 Mr. Davila sustained numerous injuries and a total of seven stab wounds in the fight with Mr. Gonzalez. His injuries included a stab wound to his left lower back that perforated his spleen and punctured his pancreas, a stab wound to his lower left chest, two cuts on his face, a stab wound to his right biceps, and various blunt injuries on his mouth and other bruising. Mr. Davila died at the hospital from his stab wounds. Mr. Gonzalez received a cut to one finger and the back of one wrist and some abrasions on his shoulders.
¶ 11 The State charged Mr. Gonzalez with murder, a first degree felony in violation of Utah Code section 76–5–203 with a criminal-street-gang enhancement under Utah Code section 76–3–203.1 ; obstruction of justice, a second degree felony in violation of Utah Code section 76–8–306(1) ; and possession of a dangerous weapon by a restricted person, a third degree felony in violation of Utah Code section 76–10–503(2)(b).
¶ 12 Prior to trial, Mr. Gonzalez stipulated to his membership in the Dog Town gang, as well as to Mr. Davila's membership in a street gang. The State nevertheless moved to admit gang-related evidence, including the testimony of gang experts. Mr. Gonzalez opposed the admission of the gang evidence, arguing that it was irrelevant because he had already stipulated to his and Mr. Davila's gang membership. The trial court ruled that the State could admit the gang-related evidence, acknowledging that gang evidence could be relevant to the underlying charges and that it would be appropriate to present it to the jury for that purpose.
¶ 13 On the first day of trial, Mr. Gonzalez moved to bifurcate the trial so that the jury would only hear the gang-enhancement charge if it convicted Mr. Gonzalez of murder. The trial court met the motion with some hesitancy, stating that “the motion is late and should have been made some time ago.” Nevertheless, the court granted the motion but made clear that the ruling did not preclude the court from admitting “gang information that may be relevant to the elements of the underlying offense.”
¶ 14 During the trial, the State called several eyewitnesses, including Alma and Miguel. Alma and Miguel testified on the first and second days of trial, before Mr. Gonzalez had been identified as the assailant. Neither Alma nor Miguel knew Mr. Gonzalez's name and instead referred to him as either “Dog Town” or “Dog Town guy” throughout their testimony.
¶ 15 The State also called two gang experts—Deputy U.S. Marshal Richard Simonelli and Officer Esekia Afatasi of the Unified Police Department, metro gang unit. Marshal Simonelli testified as to the origins of the Norteño and Sureño gangs and the Utah subsets of those gangs. He also explained the Norteño meaning of several of Mr. Davila's tattoos. He further testified as to the significance of the phrase, “What's up my ese,” explaining that if a gang member says the phrase to a member of a rival gang, it is considered a challenge. Finally, he testified regarding the importance of respect within gang culture. He explained that a gang member is expected to take action against anyone who disrespects his gang.
¶ 16 Officer Afatasi also provided expert testimony regarding gang culture. Like Marshal Simonelli, he explained the rivalry between the Norteño and Sureño gangs and their local subsets. He also provided similar testimony regarding the significance of referring to a gang member as “ese.” Officer Afatasi testified more specifically about the Dog Town gang and explained the gang meaning of several of Mr. Gonzalez's tattoos and the gang symbols written on the blue bandanna, blue shorts, and hat found at Mr. Gonzalez's residence. He also testified that gang members are “always ready to fight” and are expected to be “battle ready” at all times.
¶ 17 On the third day of trial, the State rested and Mr. Gonzalez moved for directed verdict. He argued that the State had failed to meet its burden as to any of the elements of the murder and obstruction-of-justice charges. The trial court denied the motion, holding that the State had presented sufficient evidence to send the case to the jury. The jury thereafter convicted Mr. Gonzalez of murder, obstruction of justice, and...
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