People v. Gamez, G009572

• Court: California Court of Appeals
• Citation: 235 Cal.App.3d 957,286 Cal.Rptr. 894
• Decision Date: 30 October 1991
• Docket Number: No. G009572,G009572
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ralph GAMEZ, Defendant and Appellant.

Page 894

286 Cal.Rptr. 894 235 Cal.App.3d 957 The PEOPLE, Plaintiff and Respondent,
v.
Ralph GAMEZ, Defendant and Appellant. No. G009572. Court of Appeal, Fourth District, Division 3, California. Oct. 30, 1991.
Certified For Partial Publication ^*

[235 Cal.App.3d 962] Stephen Gilbert, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, and Thomas Havlena, Deputy Public Defender, as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith M. Motley, Supervising Deputy Atty. Gen., and Karl Terp, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

MOORE, Associate Justice.

Ralph Gamez (defendant) was convicted in a jury trial of attempted murder (count I) and assault with a firearm against the same victim (count II); assault with a firearm against three additional victims (counts III, IV, V); discharging a firearm from a vehicle (count VI); and discharging a firearm at an unoccupied vehicle (count VII). Enhancements for great bodily injury and great bodily injury in discharging a firearm from a vehicle during the attempted murder and assault with a firearm charges in counts I and II and for personal use of a firearm in the attempted murder and the four assault with a firearm charges (counts I through V) were found true. Finally, defendant was found to have committed all of the crimes in association with a criminal street gang.

In the published portion of the opinion, we consider the following issues raised by defendant: (1) The admission of opinion evidence regarding gangs was in contravention of the Evidence Code and the confrontation clause; and (2) there was insufficient evidence that defendant committed the crimes in association with a criminal street gang, as required by section 186.22, subdivision (b).

Amici Curiae further allege the criminal street gang enhancement pursuant to Penal Code section 186.22, subdivision (b) is unconstitutional because it (1) is fatally overbroad and vague and punishes the right to free association in violation of the First Amendment of the United States Constitution and (2) violates due process of law.

FACTS

[235 Cal.App.3d 963] Teenagers Yvette Costa and her sister Rachel lived with their family in Santa Ana. On August 31, 1989, two teenage boys, Frankie Castellanos and Rachel's boyfriend, Guillermo Briseno, came over for dinner. Guillermo, a member of the "Highland Street" gang who went by the moniker of "Rambo," parked his car in front of the house. Police believed Guillermo had been involved in a recent shooting directed against a rival gang with whom Highland had previously been affiliated, "Southside F-Troop" (Southside).

Later that evening, the Costa sisters and two of Yvette's friends, Lorena and Norma Quintana, were standing outside the residence looking at photographs. At about 9 p.m., a black Nissan truck came around the corner with its lights out, followed by a Buick Regal. As the truck drove slowly by, an individual in the passenger seat of the truck pointed a gun out the window and fired five to ten shots.

Yvette screamed that the people in the truck were from "South," meaning Southside. The gun had a long black barrel, and the assailant was approximately 14 feet away from the girls when he opened fire. Lorena was shot in the back but survived. The other girls were not hurt.

Tereso Rangel, who lived next door to the Costas, had parked his car on the street earlier that afternoon. He heard the shots, but was unable to inspect his car for damage because police were investigating the shooting. He was told his car had been damaged. The next morning, he noticed the back window was broken out and his car had bullet holes in it.

Yvette Costa identified defendant as the shooter to investigating officers and at trial. She knew him by his gang nickname of "Hydro." Norma Quintana picked defendant out of a photographic lineup.

Defendant's residence in Anaheim was searched pursuant to warrant approximately 12 days after the shooting. A black Nissan truck was parked in the driveway. A box of bullets, paper, books, a plaque, t-shirt, and a traffic ticket were seized. The plaque was addressed to defendant's brother Jerry, a known Southside gang member, and had a reference to the Southside gang on it. The t-shirt had "Southside" printed on it. The traffic ticket was issued to defendant while he had been driving the truck. The books and papers were from defendant's school and had writing on them referring to the Southside gang and "Hydro."

Three Santa Ana police officers testified as experts regarding their knowledge of gangs in general and the Southside and Highland Street gangs in [235 Cal.App.3d 964] particular. Southside and Highland Street had formerly been factions within the F-Troop gang, but had since split and were now rivals. One of the officers opined the shooting was a "pay-back" for a prior shooting by Highland Street against Southside. Another opined defendant was a member of Southside. Photographs taken in October 1987, showing defendant with other known Southside gang members "throwing" the gang's hand signs, were introduced to corroborate the officers' opinions. Based on his own personal knowledge, crime and victim reports, conversations with other officers and statements by gang members, one officer gave his opinion that Southside was a criminal street gang engaged in a pattern of criminal activity.

DEFENSE

Various family members testified defendant was at home watching television the entire evening of August 31, 1989. The truck was owned by his brother but was usually driven by his father, who had driven it on August 31 and returned home before 9 p.m.

DISCUSSION I EXPERT OPINION TESTIMONY

Defendant does not object to the officers' testimony concerning criminal street gangs in general, involving subjects such as territory, retaliation, graffiti, hand signals, and dress. He does object to the officers being allowed to testify that various individuals, including defendant, were members of either the Southside or Highland gangs, that the shooting was in retaliation for a prior crime perpetrated on the Southside gang by Highland Street involving Guillermo Briseno, and various prior crimes were perpetrated by Southside rendering them a criminal street gang within the meaning of section 186.22. Defendant does not cite any particular testimony; rather he attacks the "opinions as to the reasons for appellant's actions and the actions of others, and about appellant's culpability under Penal Code section 186.22." ¹ His two primary contentions are that (1) the officers' opinions were not of the type which would assist the trier of fact and (2) the information used by the officers in forming their opinions was of a sort that cannot be reasonably relied upon by an expert.

[235 Cal.App.3d 965]

A. The Officers' Opinions Were of Assistance to the Trier of Fact

Evidence Code section 801 sets forth the grounds for the admission of expert opinion testimony. It states, "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [p] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [p] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." Defendant relies upon People v. Hernandez (1977) 70 Cal.App.3d 271, 138 Cal.Rptr. 675 as support for the rather unspecific notion that the officers' testimony went "too far...." In Hernandez, the court found an abuse of discretion in admitting a police officer's opinion that defendant's shaking his head from side to side meant he had been asked if he had any more narcotics and had responded that he did not. (Id. at pp. 274-275, 138 Cal.Rptr. 675.) The court held the officer's expertise did not add any probative value to the evidence, which the jury was quite capable of analyzing for itself. (Id. at p. 281, 138 Cal.Rptr. 675.)

Here, the situation was very different. The relationship between Southside and Highland Street, defendant's membership in Southside, the Highland Street membership of some of the guests at the Costa residence on the night of the shooting, and the ongoing criminality of Southside were all matters beyond common knowledge. "[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citations.]" (People v. Cole (1956) 47 Cal.2d 99, 103, 301 P.2d 854.)

Section 186.22 requires evidence of a gang's past criminal conduct and ongoing criminal nature. This may often require some expert testimony regarding the activities of the gang. To the extent such testimony necessarily paralleled elements of the criminal street gang allegation, Evidence Code section 805 provides, "Testimony in the form of opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." So long as expert testimony assists the trier of fact, it is proper even though it provides evidence of the elements of the allegations charged.

[235 Cal.App.3d 966] In addition, case law has upheld...