People v. Mendoza

• Decision Date: 30 March 2017
• Docket Number: H039705
• Citation: 10 Cal.App.5th 327,216 Cal.Rptr.3d 361
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marcos MENDOZA et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

10 Cal.App.5th 327

216 Cal.Rptr.3d 361

The PEOPLE, Plaintiff and Respondent,

v.Marcos MENDOZA et al., Defendants and Appellants.

H039705

Court of Appeal, Sixth District, California.

Filed March 30, 2017

As Modified on Denial of Rehearing April 20, 2017

Certified for Partial Publication.^*

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General, Attorneys for Plaintiff/Respondent, The People.

James S. Thomson, Attorney at Law, Under Appointment by the Court of Appeal Sixth District Appellate Project, Attorneys for Defendant/Appellant, Marcos Mendoza.

Kyle Gee, Attorney at Law, Under Appointment by the Court of Appeal Sixth District Appellate Project, Attorneys for Defendant/Appellant, Juan Ramirez.

David D. Martin, Attorney at Law, Under Appointment by the Court of Appeal Sixth District Appellate Project, Attorneys for Defendant/Appellant, David Martell

Grover, J.Maurillo Garcia died in August 2011 after receiving multiple stab wounds

. Defendants Marcos Mendoza, David Martell, and Juan Javier Ramirez (collectively, defendants) appeal their convictions, following a joint trial, for second degree murder (Pen. Code, §§ 187, 189 )¹ with gang enhancements (§ 186.22, subd. (b)) for killing Garcia.

On appeal, defendants briefed the case separately but many of their arguments overlap. All defendants argue the trial court erred by: (1) excluding statements of Javier Barragan, a co-perpetrator; (2) allowing the prosecutor to commit misconduct during the opening statement; (3) admitting unduly prejudicial evidence of gang-related intimidation; and (4) failing to properly instruct the jury regarding (a) voluntary intoxication, (b) the required mental state for guilt as an aider and abettor, and (c) the evidence necessary to prove the gang enhancement. All defendants argue that the prosecution presented insufficient evidence to support their gang enhancements.

Mendoza and Ramirez argue that the trial court erred by: (1) allowing the prosecution to commit misconduct during its examination of John Deleone, a witness for the prosecution; (2) admitting unduly prejudicial out-of-court statements by Mendoza and Ramirez; (3) admitting unduly prejudicial evidence of prior convictions to prove a " ‘pattern of criminal gang activity’ " (§ 186.22, subd. (e)); and (4) allowing the gang expert to show unduly prejudicial slides in the slideshow that accompanied his expert testimony.

Mendoza argues that the prosecution provided insufficient evidence to corroborate accomplice Tommy Gonzalez's testimony about Mendoza's involvement in the homicide.

Martell argues that the prosecution presented insufficient evidence to support his guilt and contends that his trial counsel provided ineffective assistance by failing to present a plausible theory of Martell's innocence and by failing to properly cross-examine a witness.

All defendants argue the foregoing errors were cumulatively prejudicial.

In our original unpublished opinion, we found no prejudicial error, modified the judgments to specify a 15-year minimum parole eligibility (§ 186.22, subd. (b)(5)), and affirmed the judgments as modified.²

All defendants petitioned for rehearing. Ramirez argues, among other things, that Proposition 57, the Public Safety and Rehabilitation Act of 2016, should be applied retroactively to his case because he was 16 years old at the time of the offense and his judgment was not final when voters approved Proposition 57 at the November 2016 general election. We granted rehearing to determine whether Ramirez was entitled to relief under Proposition 57.

In the published portion of this opinion, we conclude that Proposition 57 does not apply retroactively to Ramirez's case. In the unpublished portion (part II), we adhere to our original analysis and again find no prejudicial error, however we will direct that a new abstract of judgment be prepared for each defendant to note a 15-year minimum parole eligibility date based on Penal Code section 186.22, subdivision (b)(5).

I. TRIAL COURT PROCEEDINGS

A. THE HOMICIDE

The jury heard two accounts of Maurillo Garcia's death. Tommy Gonzalez, an accomplice, provided one account. Tommy testified that he was drinking with fellow Norteño gang members in the front yard of his house when a suspected Sureño gang member started spray-painting on the street by the house, leading Tommy and several others to chase down and assault the Sureño.³ Salvador Rivas, an eyewitness, provided a second account. He testified that he was at a party at his father's house when he saw a group of five to seven men run toward and assault a man who was spray-painting in the street.

1. Co-Perpetrator Tommy Gonzalez's Account

Tommy Gonzalez testified for the prosecution as part of a plea agreement whereby the prosecutor agreed to reduce his murder charge related to Maurillo Garcia's death to voluntary manslaughter in return for his truthful testimony at defendants' trial. Tommy lived at 436 Ezie St. with his mother, his brother Raymond Gonzalez, Jr. (Raymond Jr.), his nephew Raymond Gonzalez III (Raymond III), and others. Tommy had been a Norteño gang member since he was nine years old. His nickname was Beast because he fought frequently when he was incarcerated for a juvenile offense.

Tommy's friend Javier Barragan called him in the afternoon on August 27, 2011 and asked if he could come "kick back" at Tommy's house. Barragan arrived around 6:00 or 7:00 p.m. with defendants Mendoza and Ramirez. Tommy knew Mendoza by the nickname Travieso and Ramirez by the nickname Smiley. Tommy testified that Barragan, Mendoza, and Ramirez were all part of a Norteño subset called San Jose Unidos. They all drank beers in the front yard and were eventually joined around 8:00 p.m. by defendant Martell, known to Tommy as Guerro. Tommy had not met Martell before, but Barragan assured him that Martell was " ‘good people.’ " At trial, Tommy identified all three defendants as the people who came to his house on August 27.

Around 10:00 p.m., Tommy saw a person (later identified as Maurillo Garcia) who looked like a Sureño gang member walk past the house twice within two minutes. Garcia walked to a stop sign where Richdale Avenue dead-ends into Ezie Street and spray-painted something on the ground while saying "Sur Trece Putos Calle." Tommy perceived Garcia's actions as a challenge. Tommy ran toward Garcia, followed closely by Martell and then more distantly by Mendoza, Ramirez, and Barragan. Tommy swung at Garcia but missed; Garcia cut Tommy's stomach with a screwdriver. Tommy backed up and "everybody jump[ed] on" Garcia. Mendoza and Ramirez were punching Garcia. Tommy did not see Martell or Barragan do any punching or kicking. Tommy and the others ran back to his mother's Cadillac that was parked in front of 436 Ezie St. and drove away.

2. Witness Salvador Rivas's Account

Salvador Rivas testified that on the night of the homicide he was attending a party at his father's house on Ezie Street, which faces the intersection of Richdale Avenue and Ezie Street. Rivas was in the garage and the garage door facing the street was open. Jose Garcia (Maurillo Garcia's brother, whom we refer to as Jose for clarity) walked by the house and Rivas's father invited Jose to have a beer. Rivas noticed Maurillo Garcia spray-painting on the street near a stop sign. Five to seven men came from the direction of 436 Ezie St. and chased Garcia.⁴ Rivas heard someone yell " ‘Get him’ " and " ‘Norte.’ "

Rivas testified that Garcia ran but was tripped and fell, at which point all of the men who chased him started beating him. Rivas stated that everyone participated in the assault. Garcia managed to get up for a moment but the men knocked him down again and continued to beat him. Rivas testified that the men mostly kicked Garcia but some punches were also thrown. He could not clearly see any weapons. He saw something shiny but acknowledged it could have been a belt buckle. Rivas also could not see any of the attackers well enough to identify them in court. The attack lasted about 30 seconds. The men went back toward 436 Ezie St. and left in a Cadillac. One of the men might have left separately in a van.

Rivas described the assailants as Hispanic males between 20 and 30 years old. He acknowledged that it was not very light outside the night of the homicide, that there were no streetlights in the area of Richdale where the homicide took place, and that there were some cars and trucks parked in the driveway of his father's house. He estimated his vantage point in the garage was 60 yards from the victim.

B. DEFENDANTS CHARGED WITH MURDER

Defendants were each charged in a single felony information with murder (§ 187 ), with a special allegation that each committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C) ).⁵ Ramirez, who was 16 on August 27, 2011, was charged as an adult. (Former Welf. & Inst. Code, § 707, subds. (b), (d)(1) ; Stats. 2008, ch. 179, § 236, pp. 653–656.) The information alleged that Martell had a prior juvenile adjudication that qualified as a strike. (§ 667, subds. (b)–(i); Former Welf. & Inst. Code, § 707, subd. (b) ; Stats. 2008, ch. 179, § 236, pp. 653–656.)

C. TRIAL

Trial commenced in February 2013. Defendants moved for a mistrial after the prosecutor's opening statement, alleging that he argued facts that would not be introduced into evidence, vouched for prosecution witnesses, denigrated defendants, and committed Griffin error through improper reference to Ramirez's silence when interrogated after his arrest. (Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (Griffin ).) The court denied the motion.

1. Additional Testimony About the Homicide

Raymond Gonzalez, Jr. testified that Barragan, Martell, and Ramirez were...