People v. Fierro
| Decision Date | 18 May 2016 |
| Docket Number | F068387 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MARTIN FIERRO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Martin Fierro fired a single shot from a .22-caliber revolver while he was driving his vehicle in Visalia, California. He struck a bicycle rider. A jury convicted him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)1; count 2) and found true three special allegations: (1) that he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(4)); (2) that he personally and intentionally discharged a firearm from a motor vehicle with the intent to inflict great bodily injury and did inflict great bodily injury (§ 12022.55); and (3) that he personally caused great bodily injury (§ 12022.7). The jurors were hung regarding the other count of premeditated attempted murder. A mistrial was declared regarding count 1. The prosecutor offered to dismiss count 1 in exchange for a waiver of appellate rights, and appellant agreed.
As an initial matter, we determine appellant did not give a knowing and intelligent waiver of his appeal rights. Because the People did not receive the benefit of the bargain, we also determine that the prosecution may reinstate the charges on count 1.
Regarding appellant's two primary issues on appeal, we find his first contention meritorious. The jury found true that appellant fired a gun from a motor vehicle with the specific intent to inflict great bodily injury (§ 12022.55). The parties agree, as do we, that instructional error occurred for this enhancement. We find this error prejudicial, requiring resentencing of count 2. However, we reject appellant's other claim that the Fifth and Sixth Amendments to the United States Constitution were violated when the prosecution's gang expert opined that appellant was a gang member. We vacate the sentence on count 2 and remand for further proceedings.
On August 31, 2012, Gilbert Aldana was shot once in his chest under his right nipple as he rode his bicycle in Visalia. Aldana did not see his shooter. An eyewitness informed police that the shooter was driving a faded blue Jeep Cherokee and had fired a revolver out the window. Based on nearby surveillance video, police confirmed the description of the suspect's vehicle and a single gunshot was heard on the recording.
Dirk Alfano, a Visalia police officer, observed a vehicle driving in Visalia that matched the suspect's Cherokee. Alfano stopped the vehicle and appellant was the sole occupant. Appellant was taken into police custody when a .22-caliber revolver was observed in the vehicle. The revolver held a total of eight cartridges, five of which were unfired and three which had been fired. No gang indicia was observed in appellant's vehicle. Gunshot residue was later found on both the inside and outside of the driver's side door of the vehicle. Police showed the revolver to the eyewitness, who was "pretty confident" it was the one involved in Aldana's shooting.
When he was shot, Aldana was wearing blue shoes. He was hospitalized for five days and underwent surgery. At trial, he testified he did not know appellant, he could not recall ever meeting appellant, and he had no problems with appellant. Aldana knew of no reason why appellant would shoot him. No evidence was introduced at trial establishing Aldana as a gang member.
A detective interviewed appellant after his arrest, which was recorded and played for the jury. Appellant was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The detective asked questions regarding appellant's actions before the shooting, and advised him that he was a suspect in an attempted homicide. The following exchange then occurred regarding appellant's gang association:
Appellant said he did not know Aldana and he did not know why he shot him. Appellant alluded to "shootings" that had occurred earlier at his house, and the detective asked if appellant thought Aldana was involved. Appellant said, Appellant stated he only fired once while Aldana was riding a bicycle on appellant's left side, and he did not know what was going through his mind when he shot. Appellant denied that Aldana had any weapons or "came at" him with anything. He said he did not see his shot hit Aldana, and denied saying anything before pulling the trigger.
The detective noted that appellant's revolver had three spent shell casings. Appellant denied firing the other two rounds that day, claiming he did not know when they were fired. When pressed why he shot Aldana, appellant stated, The detective again asked if appellant shot Aldana because Aldana was the person who "firebombed" and shot at appellant's house. Appellant said,
In addition to being a percipient witness, the arresting officer, Alfano, testified as the prosecution's gang expert. At the time of his testimony, he had been part of the gang suppression unit for almost five years and a police officer for over 12 years. Alfano was familiar with field identification (FI) cards, which are used by officers to record information regarding a suspected gang member, including biological data, dress styles, tattoos, vehicle types, and any associates. FI cards are used in criminal investigations, consensual encounters, and traffic stops.
To establish the gang's primary activities, Alfano reviewed two previous cases involving the conviction of two different Norteño gang members. Alfano said he was familiar with appellant based on his review of documents, reports, FI cards, and speaking with other officers. Alfano stated that appellant had prior gang-related contacts with law enforcement. He went through the extensive list of evidence which he felt established appellant as a gang member.
In July 1997, a Visalia police officer reported a crime involving appellant in association with two other individuals, one of whom was a "documented" Norteño gang member. Appellant was a juvenile.
In November 1998, a crime report was generated by a Visalia police officer in which appellant was associating with two other individuals, one of whom was a documented Norteño gang member. Appellant was a juvenile.
In March 1999, appellant was contacted by police with two other individuals during the investigation of a crime. The two associates were both documented Norteño gang members.
In January 2002, a report was created regarding appellant and another individual trespassing in a vacant residence. The other individual was a documented Norteño gang member.
In October 2006, a field interview was conducted by a Visalia police officer following reports that gang members "were congregating." According to the field interview report, appellant admitted to being "a Northern gang member." Alfano said it was "very important" for officers to note gang admissions on FI cards.
In June 2009, an officer made contact with appellant and another documented Norteño gang member "during a gang saturation detail." Appellant listed himself as "a Northerner" when he was booked into county jail.
In November 2009, an officer made contact with appellant and another documented Norteño gang member.
In August 2012, appellant and his family were victims of a shooting directed at their residence. Alfano believed the shooting could show appellant's gang affiliation. Alfano explained it is not common for someone without gang ties to be a victim of shots fired at their house.
Alfano reviewed five "classification questionnaires" prepared when appellant was booked into county jail in June 2009, November 2009, June 2010, June 2012, and September 2012. Alfano explained that part of each form is filled out by the intake deputy and a portion is completed by the person being booked into jail. In each of these five bookings, the intake deputy listed appellant as either a "northern associate" or a "Northerner." In four of these bookings, appellant himself wrote that he associates with "Northerners" but he did not identify any known enemies on three of the forms. On a form in 2012, appellant circled the word "gang member" and wrote the word "North" on it.
Alfano noted a difference exists "between associating and, actually, being a gang member." He opined that appellant was a Norteño gang member based on appellant's past admission of being a gang member to a police officer, the classification questionnaires when appellant was booked into jail, his association "on numerous occasions" with other...
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