People v. Funes

• Decision Date: 31 March 1994
• Docket Number: No. A057774,A057774
• Citation: 23 Cal.App.4th 1506,28 Cal.Rptr.2d 758
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mauricio Ernesto FUNES, Defendant and Appellant.

Page 758

28 Cal.Rptr.2d 758

23 Cal.App.4th 1506

The PEOPLE, Plaintiff and Respondent, v. Mauricio Ernesto FUNES, Defendant and Appellant.

No. A057774.

Court of Appeal, First District, Division 3, California.

March 31, 1994.

As Modified on Denial of Rehearing April 25, 1994.

Review Denied July 14, 1994.

[23 Cal.App.4th 1510] Jo Anne Keller, Berkeley, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Tyler R. Meade, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

A jury convicted defendant Mauricio Ernesto Funes ¹ of one count of second degree murder (Pen.Code, § 187) ² and one count of participating in a criminal street gang (§ 186.22, subd. (a)). With respect to the murder count, the jury further found that defendant had used a dangerous and deadly weapon (a baseball bat) (§ 12022, subd. (b)), and had committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The court sentenced defendant to a term of 16 years to life, with the possibility of parole.

On appeal, defendant contends we must reverse his murder conviction because: (1) The trial court erroneously admitted evidence of numerous incidents of gang affiliation; (2) the trial court abused its discretion when it refused to allow the defense to reopen its case to present evidence that defendant was right-handed; and (3) the trial court erroneously refused special instructions on the proximate cause of death. In addition, defendant contends we must reverse the gang participation count and gang affiliation enhancement because the trial court failed to instruct the jury that it must unanimously agree on the two or more predicate offenses which constitute the "pattern of criminal gang activity" required for a conviction or enhancement under section 186.22. We affirm.

FACTS

In the early morning hours of June 9, 1990, police found Jorge Sanchez unconscious in a Mission District parking lot. His head had been smashed by a blunt object. Sanchez, who never regained consciousness, died in a hospital 46 days later, after his family and doctors decided to withhold antibiotic treatment.

Sanchez's death was one chapter in a feud between two street gangs based in San Francisco's Mission District. The evidence showed that defendant was a member of a Nicaraguan and Salvadorian gang known as 18th Street. The victim--who went by the street name "Brujo"--was a member of a rival Mexican gang known as "Trece." ³ Although the homicide at issue occurred on June 9, 1990, the trial court permitted the prosecution to present evidence of numerous incidents between 18th Street and Trece which occurred in the year before the homicide and which allegedly led up to the murder of Jorge Sanchez.

According to the prosecution's theory, the seminal incident in the recent rivalry between 18th Street and Trece occurred approximately one year before Jorge Sanchez was attacked. Specifically, on May 28, 1989, 18th Street member Carlos Banegas was walking down 22nd Street with several other 18th Street members when Jose Sandoval, a Trece gang member, charged Banegas with a knife and shovel. Dagoberto Ramirez, another 18th Street member, pulled a gun and shot Sandoval in the head, killing him. Defendant was not present during this incident.

About 10 months later, on April 12, 1990, defendant was with a friend at Hawthorne School when two Trece members shot at them. One of the shots hit defendant's friend in the arm. About three weeks after the school yard shooting, 18th Street retaliated.

                On May 5 Ronnie Torres and his uncle Jose Soto were walking Soto's dog in the Mission District with Trece members Joaquin Hernandez and "Contra."   Neither Torres nor Soto were members of Trece, but Soto used to "hang around" with them.  Near the corner of 17th and Folsom a group of more than ten people approached Torres and his companions shouting "18th Street."   Hernandez yelled "fuck 18th Street, Trece Street," then ran.  "Contra" ran too, but Torres and Soto remained on the sidewalk.  Some of the 18th Street group chased Hernandez, while others attacked Torres and Soto.  The attackers hit Torres and the dog with a bat and stabbed Soto in the neck.  Joaquin Hernandez fled to a school yard where the attackers caught him and hit him with a bat, breaking his jaw.  About two or three weeks later, Hernandez met defendant on the street and defendant admitted he was the one who had hit Hernandez with the bat
                

Trece counterattacked two weeks after the attack related above. On May 19, 1990, 18th Street member Victor Alvarenga was standing in front of a restaurant on 25th Street with several friends when some Trece members drove up in a white car and hit Alvarenga in the head with a stick. He spent four days in the hospital recovering from the attack. Three days later 18th Street responded. On May 22, Christian Martinez and Andrew Molina were talking on San Carlos Street between 18th and 19th when three or four people got out of an old gray Volkswagen and approached them. The group asked if Martinez and Molina were from Trece. Before Martinez could answer, someone in the group stabbed him in the chest and hit him on the back with a pipe. The attackers yelled "18th Street" as they fled. Martinez said that defendant was among the group who attacked him.

The Week Before the Jorge Sanchez Homicide.

The rivalry between 18th Street and Trece intensified during the week preceding the June 9, 1990 attack on Jorge Sanchez. On June 1, 1990, 18th Street gang members Mario Portillo (a.k.a. "Weasel"), Marsiel Bermudez, Claudia Castillo and Ruth Reyes were walking near Garfield Park when they saw several Trece members drive by in a white car. About 15 minutes later, the car returned and the occupants fired 5 rounds at several members of 18th Street who were listening to music in Garfield Park. One shot hit Claudia Castillo in the leg, and another bullet struck Ruth Reyes in the back. After the police and ambulance arrived, Mario Portillo saw defendant and told him that Trece was responsible for the drive-by shooting of the two girls. During the next few days, defendant made statements to the two shooting victims and to other 18th Street members indicating that 18th Street would retaliate against Trece.

Three days after the drive-by shooting, 18th Street struck back. On June 4, 1990, three Trece gang members were driving in a Monte Carlo near 24th and Mission when the driver pulled to the curb because the car had a flat tire. While the Trece members were parked and still inside the car, defendant and Mario Portillo got out of a blue Volkswagen bug and approached the Monte Carlo. Defendant used a baseball bat to smash the Monte Carlo's rear window while Portillo smashed the windshield with a tire iron. One of the Treces was hit in the head by defendant's bat.

Three days later, on the night of June 7, Mario Portillo and another 18th Street member were cruising in a stolen car they had borrowed from a group that hung out around 22nd and Bryant streets. According to Portillo, they were trying to find members of Trece. Defendant and two other 18th Street gang members followed in the blue Volkswagen bug. About midnight the two cars stopped at a gas station on 19th and South Van Ness. At about that time Officer Ron Ophir arrived on the scene and decided to investigate because he thought there was some sort of dispute at the gas station. Ophir ran a radio check and discovered that the borrowed car was stolen. He searched the stolen vehicle and found a loaded handgun inside. According to Portillo, the people who had lent him the car had left the gun inside.

Finally, at about 1 a.m. on June 9, 1990, approximately one-half hour before Jorge The Jorge Sanchez Homicide.

Sanchez was attacked, two 18th Street members, Elvis Roldan [23 Cal.App.4th 1513] and Marvin Gaza, threatened and chased a PCP dealer whom they believed had burnt them in a drug sale. The two gang members also caught and stabbed the dealer's brother. There was conflicting evidence as to whether defendant was present during this incident. Moreover, there was no evidence that the dealer or his brother were Trece members.

Defendant spent the day before the Jorge Sanchez homicide (June 8) hanging out with several 18th Street members, including Mario Portillo. Defendant drank, used LSD and smoked crack cocaine. Mario Portillo smoked PCP, crack and marijuana and drank 17 to 18 beers.

At some point in the late evening, defendant, Mario Portillo, and two other 18th Street members cruised Mission Street in the blue Volkswagen. At 22nd and Mission defendant and Portillo got out of the Volkswagen to wait for their friend Rudo. When Rudo arrived the trio started walking down the street until they saw Victor Navarro pass by in a white pickup truck. Defendant asked for a ride and Navarro agreed. All three got into Navarro's truck and defendant instructed Navarro to follow the blue Volkswagen, which had returned. It was then about 1 a.m. on the morning of June 9.

At about that time, David Mendez and Jorge Sanchez, who were both connected to Trece, were walking down Mission near 20th when Mendez saw a blue Volkswagen which he knew belonged to 18th Street gang members. Hoping to avoid a confrontation Mendez and Sanchez crossed Mission Street and walked through the parking tunnel beneath the El Capitan Hotel, which led to an open parking lot in back of the hotel. When Mendez and Sanchez ascended a ramp leading from the parking lot behind the El Capitan Hotel to a sidewalk on Capp Street the blue Volkswagen and Navarro's truck were already parked nearby on Capp. Defendant and four or five other members of 18th Street were standing by the vehicles.

According to Mendez, he told Sanchez there were too many 18th Street...