People v. Duenas
| Decision Date | 21 February 2018 |
| Docket Number | B266480 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. OSCAR ISRAEL DUENAS, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA137741)
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Reversed in part and affirmed in part; remanded for resentencing.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Defendant and appellant Oscar Israel Duenas appeals his convictions for assault with a deadly weapon and making criminal threats. He contends the evidence was insufficient to support a gang enhancement, and in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), admission of a gang expert's testimony violated his confrontation and due process rights. Both appellant and the People contend the trial court made sentencing errors. We conclude the trial court committed various sentencing errors, and accordingly reverse as to the sentence, and remand for resentencing. In all other respects, we affirm.
Carlos Galvan Sr. and his family, including his 19-year-old son, Carlos Galvan Jr., had lived in a home on East 59th Street in Los Angeles for 18 years. Appellant Duenas, who was 31 years old, lived several houses away. The Florencia 13 criminal street gang controlled the area. Gang graffiti was prevalent on the street and gang members frequented the area. The Galvans believed Duenas was a Florencia 13 gang member because of his tattoos and appearance. They knew his moniker was "Pollo" or "El Pol[l]o." Galvan Jr. was not a gang member.
A week before Thanksgiving 2014, Duenas stood outside the Galvans' home and screamed for Galvan Jr. to come outside. Frightened, Galvan Jr. declined to do so. Duenas said he had heard Galvan Jr. was " 'talking shit' " about him. A day or two later, Galvan Jr. began receiving "a bunch" of threatening text messages from an unknown source. One stated that if Galvan Jr. did not meet the sender at the liquor store, "they were eventually going to find [him] and kick [his] ass." Galvan Jr. believed themessages were from Duenas. The Galvans had not had problems with Duenas until this incident.
On November 27, 2014, the Galvans hosted a Thanksgiving dinner at their home. At approximately 5:15 p.m. Galvan Sr. and Jr. were on the front porch. Duenas stood outside their property and yelled for Galvan Jr., saying, " 'Hey, come out, son of a bitch.' " Duenas indicated he wanted to fight. Galvan Jr. stated he did not want to fight, but would do so if that would "stop the death threats."
When Galvan Jr. exited the yard, Duenas hit him in the mouth and nose with a metal baseball bat, causing him to fall, hit his head, and briefly lose consciousness. Galvan Sr. and his brother, Julio1—who had just arrived—assisted Galvan Jr. Duenas jumped up and down on the hoods of cars parked in the Galvans' driveway. He then returned to his own house.
Minutes later Duenas returned to the Galvans' home, armed with a Tech 9 submachine gun in his waistband and accompanied by codefendant Leandro Toro.2 Toro was not wearing a shirt, and Duenas was either shirtless or wearing a "muscle" shirt. Both displayed multiple tattoos, which appeared to be gang-related. Duenas pointed the gun at Galvan Sr. and stated, " 'I'm going to kill you son of a bitch.' " Galvan Sr. believed Duenas would carry out his threat because he was a gang member. Duenas stated he did not want the Galvan family living on the block because he was the "boss" there. Galvan Sr.believed this statement indicated Duenas was the "boss of the gang." Duenas also threatened that "they" were going to surround the Galvans' house. Duenas at one point said, " " Galvan Jr. understood this to be a reference to Duenas's gang. Toro hit Julio in the back with a two-by-four. During the incident, a crowd of 30 to 40 people gathered in the street.
Police officers arrived and arrested Toro and Duenas. Officers did not find a gun on Duenas or in the area. An officer found the baseball bat on the front lawn of the house across the street from the Galvans' residence, and a wooden two-by-four in the backyard of that residence. Neither Galvan Sr. nor Jr. had a weapon. When arrested, Duenas had abrasions on his knees, back, elbows, hands, and head.
Galvan Jr. was treated at the hospital. The blow from the bat loosened one of his front teeth and bloodied his lip. At the time of trial he still suffered pain in his teeth and jaw, suffered from headaches, and had difficulty eating.
The Galvan family moved from the East 59th Street house after the incident. Galvan Jr. explained he moved because he was "scared" of "getting killed" by Duenas and Toro, because "they are gang members."
Los Angeles County Sheriff's Department Detective Daniel Machuca testified as a gang expert for the People, as follows. The Florencia 13, a Hispanic gang, has approximately 2300 documented members in Los Angeles. It has a distinctive hand sign and claims territory bordered by Slauson Avenue, Central Avenue, State Street, and 92nd Street. The area where the offenses occurred is in the heart of the gang's territory. Thegang's primary activities include carjacking, robbery, burglary, extortion, assault, murder, and narcotics sales. The Florencia 13 gang is "extremely violent."
"Respect" is very important in the gang culture. Gangs make money through narcotics sales, extortion, and burglaries. It benefits a gang to have a reputation for violence. Gang members instill fear in the community by committing crimes and vandalizing the neighborhood. "Snitching" is not tolerated, and persons who cooperate with law enforcement can be assaulted or murdered.
Gangs have a hierarchy, with "OGs" at the top, shot callers in the middle, and "street soldiers" who actively "put in work," that is, commit crimes, at the bottom. One joins a gang by being "jumped in," committing crimes, or through family ties. Once a member, one cannot leave the gang, although some persons become inactive members.
Gang members show allegiance to the gang by displaying gang tattoos. Such tattoos are "earned," and a nongang member displaying Florencia 13 tattoos would be subject to "discipline" by the gang. Removal of tattoos does not demonstrate a person has distanced himself from the gang.
In Machuca's opinion, Duenas and Toro were Florencia 13 gang members. His opinion was based on his review of field identification (FI) cards and arrest reports, conversations with other deputies, and examination of the men's tattoos. FI cards examined by Machuca, prepared by nontestifying officers between 1998 and 2010, indicated Duenas had admitted his Florencia 13 membership on six or seven occasions. The FI cards also indicated Duenas had been observed in the company of other Florencia 13 gang members five or six times, and made note ofhis gang-related tattoos. Machuca had also reviewed a series of photographs of Duenas's tattoos taken between 1998 and 2015, and had personally observed his tattoos shortly before trial. At various times, Duenas had "Florencia" tattooed on his left shoulder; "Maldicianos," which was the Spanish name for "Malditos," a Florencia 13 clique, on his chest; "Florencia" on the back of his head; "MLDS" on his face; "Malditos" on his right arm; "F13" on his right arm; "F13" on his abdomen; "MDS" on his lower back; and "SC" on his head, indicating "south central," where the gang originated. Some of these tattoos, including the "MLDS" on his face, had been removed. At the time of trial Duenas still sported four to five Florencia-related tattoos. Duenas's moniker was "Pollo."
FI cards prepared between 2008 and 2014 indicated Toro admitted his gang membership on three occasions, in 2008, 2009, and 2014. Machuca personally observed and reviewed photographs of Toro's gang-related tattoos, which included "Sureno" across his back, "F13" on the back of his head, "south side" on his chest, and "FX3" on his abdomen.
When given a hypothetical based upon the evidence presented, Machuca opined that the offenses would benefit the Florencia 13 gang and were committed in association with or at the direction of Florencia 13 gang members. The crimes showed "an association of two documented gang members of the Florencia 13 acting together." The crimes would enhance the gang's reputation as a "hardcore" gang, thereby instilling fear and intimidation in the community. This, in turn, would make it less likely the gang's crimes would be reported, facilitating the unfettered commission of future criminal activity.
In support of the Penal Code section 186.223 gang allegation, Machuca testified regarding two predicate crimes: a November 8, 2012 carjacking committed by Florencia 13 member Danny Ortega, and a May 30, 2012 felon-in-possession of a firearm conviction suffered by Florencia 13 gang member Robert Navarro.4
Duenas presented the testimony of two neighbors who claimed to have observed portions of the altercation. Adriana Garcia, a former Florencia 13 gang member, lived across the street from the Galvan family and had known Duenas for 28 years. On Thanksgiving Day, she observed Galvan Sr. make an offensive remark to Duenas's moth...
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