People v. Jasso

Decision Date20 March 2013
Docket NumberH037099
Citation211 Cal.App.4th 1354,150 Cal.Rptr.3d 464
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Alexander Javier JASSO, Defendant and Appellant.

OPINION TEXT STARTS HERE

Trial Court: Monterey County Superior Court No.: SS091101 Trial Judge: The Honorable Stephen A. Sillman

Attorney for Defendant and Appellant Alexander Javier Jasso: Jeffrey A. Glick under appointment by the Court of Appeal for Appellant

Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allen R. Crown, Deputy Attorney General

Márquez, J.

A jury convicted defendant Alexander Javier Jasso of attempted murder and other crimes arising from his shooting at people through a window at a McDonald's restaurant in Prunedale. On appeal he claims that the prosecutor committed misconduct during the trial, that the trial court erred in allowing the jury to hear certain evidence and denying his motion to let the jury visit the crimes' location, that there was insufficient evidence to punish him for his gang promotional activities, and that the trial was unfair when viewed as a whole.

We disagree and will affirm the judgment.

PROCEDURAL BACKGROUND

The jury convicted defendant of attempting to commit the first degree murder(Pen.Code, §§ 187, subd. (a), 189, 664) 1 of Alejandro Múñoz (Múñoz). The jury also convicted him of three counts of assault with a semiautomatic firearm (§ 245, subd. (b)) and one count each of willfully and maliciously shooting at an occupied building (§ 246) and gang-related street terrorism (§ 186.22, subd. (a)). The amended information had also charged him with the attempted first degree murder of Rafael Múñoz Flores (Flores), but the jury acquitted him of that charge.

The jury found true various enhancement or alternate penalty scheme allegations: that defendant committed all of the offenses except the gang-related street terrorism crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)),2 that in all of the offenses except the section 246 violation he personally used a firearm (§ 12022.5, subd. (a)) 3, and, with respect to his attempted murder conviction, that he intentionally discharged a firearm (§ 12022.53, subd. (c)). The trial court sentenced him to 35 years to life imprisonment.

FACTS
I. Prosecution Case

The prosecution presented the following facts at trial. On the night of March 29, 2009, defendant, accompanied by his girlfriend Tara Meehan and his friend Robert Hornbeak, drove to a McDonald's restaurant in the Monterey County town of Prunedale. Defendant looked toward the well-lit interior of the restaurant and saw Múñoz and his brother Flores. Defendant was a member of the Norteño criminal street gang and recognized Múñoz as a member of the Sureño criminal street gang. He recognized Múñoz personally; in addition, Múñoz was wearing a blue sweatshirt, and blue is a color that Sureño gang members use to identify themselves.

Defendant reacted negatively to Múñoz's presence. Hornbeak wanted him to ignore Múñoz and let the car's occupants get something to eat elsewhere, but defendant, according to Hornbeak's testimony, said, “I'm gonna get this fool” or “I gotta get this guy.” Defendant maneuvered his large vehicle out of the restaurant's drive-through lane, circled around in the parking lot, and parked by one of the restaurant's windows. He racked the slide of a gun he had in the car and fired one shot. It passed through the restaurant window, causing Múñoz, Flores, and a woman identified in court as Jane Doe to duck or drop to the floor. The restaurant manager, who was Múñoz's wife, called 9–1–1. She would later identify defendant as the vehicle driver in a photographic lineup and in court.

Sheriff's deputies arrested defendant at his residence. On the premises they found a gun, which was hidden in defendant's bedroom. The deputies also found a quantity of ammunition in the bedroom. They did not find defendant's vehicle on the premises, but found it a few days later on property on which a friend lived. It was “away from everything, out of sight” behinda tree and concealed by a tarpaulin and plywood sheets.

A criminalist who testified as an expert on firearms answered yes to the prosecutor's question whether the bullet recovered from the crime scene was in “very poor condition.” The authorities did not attempt to match it to defendant's gun. The expert testified that the gun could not be fired until its slide had been pulled back to chamber a round. Because of a missing part, the gun could be fired with about one-third of the normal trigger pulling force needed. The “harder trigger pull [is] a safety measure,” he explained, but this gun lacked the needed part. As a result, some 4.25 to 4.5 pounds per square inch of pulling force would discharge the weapon, whereas ordinarily about 12 pounds per square inch would be required. In general, however, the gun worked normally, and it was of “reasonably high quality.”

Because defendant was the subject of a gang-related charge and numerous gang-related allegations, the prosecution presented evidence of his ties to the Norteño gang. A witness qualified as an expert in street gangs generally and the Norteños in particular testified that gangs like the Norteños have an honor-based culture and thus prize displays of dominance over other similar gangs and, conversely, take harshly to insults or other acts that they perceive as demeaning to them. The Norteños' archrival is the Sureño criminal street gang. The Norteños use certain motifs to identify and promote the gang. These include the number 14, the color red, the logos of the San Francisco Giants professional baseball team, and the iconic huelga eagle that is the symbol of the United Farm Workers agricultural labor union. ( Huelga is Spanish for a labor strike.) Norteños also use tattoos and hand gestures to identify themselves and to intimidate or ward off other gangs.

Defendant bore a one-dot tattoo on one arm and a four-dot tattoo on the other, registering his identification with the Norteños' favored number 14 (the letter “N” is the fourteenth letter of the alphabet). In his bedroom sheriff's deputies found a red blanket with the logo of the San Francisco 49ers professional football team, red bandanas, a T-shirt with the huelga eagle, and CD–ROM covers with the title “Northern Cali Killas (Cali being an abbreviation of California), and a man in red holding an Uzi machine gun. A cap modeled on the uniform of the New York Yankees professional baseball team was red instead of the Yankees' traditional blue. A San Francisco Giants cap was white with red letters instead of the Giants' traditional black and orange. Hornbeak testified that he was making prideful Norteño gestures to Múñoz and Flores before defendant fired his shot, and that Múñoz and Flores were laughing at Hornbeak for doing so.

Inside defendant's vehicle, sheriff's deputies found CD–ROM covers with the words “Northern Exposure,” the huelga eagle, and one dot followed by four dots. According to the testimony of a sheriff's department detective, the CD–ROMs featured the performances of gang-associated musicians who performed music listened to by Norteño gang members. The friend who was hiding defendant's vehicle for him was dressed in a red shirt and red tennis shoes with red shoelaces when the deputies went to the property. The same detective testified that as he prepared to book defendant into jail, defendant “told me he was a Norteño” for the jail's housing assignment purposes.

The prosecution's expert witness on gangs testified that in his opinion defendant was an active member of the Norteños. The witness testified that defendant, despite his youth, had a long history of associating with the Norteños in various parts of California and that he was an active Norteño on the day of the crimes. He also testified that defendant fired the shot in the direction of Múñoz and Flores to promote the Norteños' interests.

Questioned by sheriff's investigators following his arrest, in an interview that was recorded and played for the jury, defendant acknowledged that his gun discharged toward Múñoz and Flores, but insisted that he fired it “accidentally” and did not intend to shoot at anyone. He claimed that he did not rack the gun's slide to load a round into the chamber for firing. Defendant was acquainted with Múñoz and did not like him but “wanted [only] to fight him ... [and] not shoot him” after seeing him at the restaurant. He denied making any gang gestures toward Múñoz and Flores.

II. Defense Case

The defense presented the following facts at trial, at which defendant testified on his own behalf.

Before defendant shot at Múñoz, the two exchanged insults outside the restaurant, although they were not gang-related. Nor did the two exchange gang signals. However, defendant knew that they called him [Múñoz] a southerner,” meaning a member of the archrival Sureño street gang. Defendant parked his vehicle and could see Múñoz, who was now inside the restaurant. Defendant and Hornbeak, still in defendant's vehicle, gestured to Múñoz to come outside, and Múñoz, who was seated and talking on a telephone, started laughing at defendant. “I got kind of mad,” defendant testified, and so, in what was “the worst mistake of my life,” “I got the weapon” “to show it to him,” meaning Múñoz. Defendant did this to “kind of fit in, to look tough.” “It went off,” defendant testified, but “I never meant for a bullet to be fired from that weapon.” “If I wanted to kill him, I could have kept shooting.” Defendant did not pull back the gun slide to chamber a round, so Hornbeak—who said he heard a semiautomatic gun being cocked from the area of the driver's seat—must have misinterpreted the sound. Nor did defendant...

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