People v. Franco

• Decision Date: 19 April 2018
• Docket Number: F073358
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ISRAEL FRANCO, et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ISRAEL FRANCO, et al., Defendants and Appellants.

F073358

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 19, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. 14CM7150-002, 14CM7150-004)

OPINION

APPEAL from judgments of the Superior Court of Kings County. Steven D. Barnes, Judge.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant Israel Franco.

Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant Simon Gonzalez.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Israel Franco and Simon Gonzalez were jointly tried and convicted of aggravated assault and active participation in a criminal street gang. Gang enhancement allegations were found to be true, and Franco was additionally found to have inflicted great bodily injury upon two victims. On appeal, both men challenge the sufficiency of the evidence supporting the gang charges and related enhancements. Gonzalez, who was found liable as an aider and abettor on certain counts, also disputes the sufficiency of the evidence supporting his other convictions. Lastly, error is alleged with regard to the use of hearsay during testimony by the People's gang expert.

We reject the claims of insufficient evidence. The jury was improperly exposed to hearsay, but the error was harmless. Therefore, we affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

A.C. (victim #1), S.L. (victim #2) and J.V. (victim #3) are self-admitted ex-Norteno gang members, aka "dropouts." On March 15, 2014, they were attacked by a group of people who they believed and/or knew to be Nortenos or "Northerners," i.e., members of the gang to which they formerly belonged. The incident occurred at approximately 10:00 p.m. outside of a grocery store in Corcoran. The victims were punched, kicked, and hit with a crowbar. All those involved, including the victims, fled after the store manager called the police.

After leaving the scene, the victims went to the home of victim #2. Shortly thereafter, victims #2 and #3 travelled to the hospital. Victim #3 had sustained a life-threatening head injury from being struck with the crowbar and was bleeding profusely. He was admitted to the emergency room for treatment of a cut artery. Doctors were able to stop the bleeding and closed the head wound with staples. Victim #2, who was reportedly "covered in blood" when he entered the hospital, was treated for injuries to his head and right knee. He was given crutches and a brace for the latter injury.

Meanwhile, back at victim #2's residence, the police arrived and obtained a recorded statement from victim #1. He was noted to be under the influence of alcoholbut lucid and able to recount what had happened. Paramedics bandaged a laceration on his head while he conversed with the police officers. Victim #1 stated that he had been assaulted by "Simon," "Geester" (or "G-ster"), and "Creature," and that "Creature" had hit him in the head with a crowbar. He referred to the assailants as "Northerners" and claimed to have been attacked because of his dropout status.

The investigating officers knew that "Geester" and "Creature" were monikers used by Gilbert Navarro and Israel Franco, respectively. The victim had provided information regarding the home address of "Simon," which apparently led them to believe he was referring to Simon Gonzalez. Victim #1 later identified Franco and Gonzalez from photographic lineups, and he confirmed that Franco was the person he knew as "Creature." Victim #1 also positively identified Navarro during a "field showup."¹

Victims #2 and #3 left the hospital with their girlfriends sometime after midnight and stopped at a gas station in Hanford on their way home. After pulling into the station, they saw Gonzalez seated in a brown Toyota Camry that had parked next to them. Gonzalez looked at them before getting out of the car and opening its trunk. Fearing another assault, the victims departed. The other car gave chase and followed them back to Corcoran. One of the girlfriends called the police, which led to Gonzalez's arrest.

Gonzalez was apprehended in front of his home as he was exiting a brown Toyota Camry. A search of his person yielded a hammer, which was found "protruding from his waist band." While in custody, he made an incriminating statement: "We got down at [the grocery store], but because those fools were trying to start problems."²

Franco and Gonzalez were charged with attempted murder (Penal Code,³ §§ 187, 664; counts 1-3); assault with a deadly weapon (§ 245, subd. (a)(1); counts 4-6); assaultwith force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 7-9); and active participation in a criminal street gang (§ 186.22, subd. (a); count 10). Counts 1-9 were alleged to be gang-related for purposes of section 186.22, subdivision (b). Each defendant was alleged to have personally inflicted great bodily injury upon victims #2 and #3 (§ 12022.7, subd. (a); counts 2-3, 5-6, 8-9). The charges were tried before a Kings County jury in January and February 2016.

The store manager testified to having witnessed the conclusion of a large-scale fight. He recalled seeing victim #2 on the ground and getting kicked by at least two people before being struck with "some type of bar." The manager could not identify the attackers, but he opined (without objection) that "you could tell they were gangsters."

According to the testimony of victims #2 and #3, they had been partying at victim #2's house earlier in the evening and drove to the grocery store with victim #1 and one or two additional companions to buy beer. They parked near an adjacent fast food restaurant. Upon exiting their vehicle, a half-full beer can was thrown at them and they heard one or more persons yell out "Norte."⁴ Next, a group of approximately 15 to 25 people began to attack them. Victim #3 testified as follows: "I [saw] a lot of gang members ... they were at the parking lot [of the fast food restaurant, then] [t]hey just approached us and started fighting."

Victims #2 and #3 explained that Norteno dropouts are at risk of being assaulted by currently active gang members. They knew from personal experience that Nortenos use the word "Norte" to convey their gang affiliation. Victim #2 testified that during his period of membership, Nortenos would assault dropouts simply because they had abandoned the gang; commit such assaults in public places; and yell out "Norte" while doing so. He acknowledged that such crimes are beneficial to the gang because the publicity enhances its reputation as a group to be feared and respected.

When victim #3 took the witness stand, he tearfully revealed that Franco is his second cousin. After composing himself, he testified that Franco had struck him three times in the head with a crowbar. The jury was then shown photographs of his injuries. He went on to describe having witnessed Franco strike victim #2 with the crowbar "over ten times," and seeing Franco use the same weapon to hit victim #1. The latter blow was delivered while victim #1 was being punched by Gonzalez. Victim #2 did not identify the perpetrators but confirmed he was struck with the crowbar "more than eight times," including on the back of his head, and also suffered "a bunch of kicks [to the] face." The jury was shown photographs of his injuries as well.

Victim #1 was a recalcitrant witness. Amid making other self-contradictory statements, he alternated between claiming to have virtually no recollection of his conversations with the police and alleging that he had been told to lie about the identities of his attackers. This testimony was impeached with an audio recording of his initial police interview, which had taken place within about 30 minutes of the attack. Victim #1 was also impeached with evidence of his photographic lineup identifications and by testimony from the officers with whom he had previously cooperated.

Officer Refugio Aguirre of the Corcoran Police Department served as the People's gang expert. He testified that the Nortenos are a criminal street gang and opined that both defendants had been active members during the relevant time period. He explained that Nortenos view dropping out of the gang as treasonous and unacceptable: "[Dropouts are] terrorized. They are assaulted. They are murdered. ... I have rarely come across a dropout that did not have some kind of confrontation, or an assault, or being stabbed or even shot at." Dropouts who suffer such retribution are often afraid to testify against the gang, and even those who initially cooperate with law enforcement will sometimes recant or dissemble in court. A more detailed summary of the gang evidence is provided in our Discussion, post.

The jury returned mixed verdicts. Both defendants were acquitted of attempted murder but convicted on the remaining charges. All gang enhancement allegations were found to be true. The great bodily injury enhancements were found true as to Franco but not true as to Gonzalez. Accordingly, Franco was sentenced to a 21-year prison term and Gonzalez was sentenced to a prison term of 14 years, four months.⁵ Timely notices of appeal followed.

DISCUSSION

Sufficiency of the Evidence

Standard of Review

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains...