People v. Olguin

• Decision Date: 30 December 1994
• Docket Number: G014235,Nos. G014071,s. G014071
• Citation: 37 Cal.Rptr.2d 596,31 Cal.App.4th 1355
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cesar Javier OLGUIN, Francisco Calderon Mora, Defendants and Appellants.

Page 596

37 Cal.Rptr.2d 596

31 Cal.App.4th 1355

The PEOPLE, Plaintiff and Respondent, v. Cesar Javier OLGUIN, Francisco Calderon Mora, Defendants and Appellants.

Nos. G014071, G014235.

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

Dec. 30, 1994.

Rehearing Denied Jan. 30, 1995.

Review Denied April 27, 1995.

Philip I. Bronson, Encino, and Terrence Verson Scott, under appointment by the Court of Appeal, Los Angeles, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle B. Davis and Esteban Hernandez, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

BEDSWORTH, Associate Justice (assigned). ^*

Cesar Javier Olguin and Francisco Calderon Mora were convicted of second degree murder for the killing of John Ramirez. In addition, firearm and criminal street gang enhancements were found to be true. Both defendants appealed on several grounds, ¹ and we consolidated the cases for review.

I

In March 1992, Olguin lived on West Elder in Santa Ana, two houses away from the intersection of Elder and Shelley. He spray-painted the phrase "BSSR FTR El Cisco" on the street curb in the intersection, staking territorial claim to the area. The graffiti referred to the Southside F Troop street gang (Southside) and his nickname, El Cisco. Later, Olguin noticed someone had crossed out his graffiti by spray-painting a line through it and writing the Shelley Street gang's logo nearby. Although he knew Shelley Street was a defunct gang, Olguin assumed one of its former members had defaced his graffiti. He interpreted it as a sign of disrespect and a challenge to his territorial claim.

In the late afternoon of March 27, Olguin, along with Mora and Jesse Hilario, two other Southside members, looked at the crossed-out graffiti. Mora and Hilario agreed to go with Olguin to discover who did it. Olguin had a loaded handgun tucked in his waistband covered by his coat and shirt. He later claimed the weapon was solely for protection and that he did not tell Mora and Hilario he was armed.

The three encountered Eugene Hernandez and Robert Ulloa near the corner of Elder and Shelley Streets. Mora asked Hernandez if he belonged to the Shelley Street gang. Hernandez said no. Mora then asked Hernandez who crossed out Southside's graffiti. Hernandez said a relative of his did it. Mora, Olguin and Hilario began walking away.

Unfortunately, Hernandez's cousins, April Martinez and John Ramirez came by at this moment. Hernandez told them what had transpired, and Ramirez, who had been drinking, walked past Hernandez, following the three F Troopers and yelling "Shelley Street." They turned and walked back toward Ramirez, yelling "Southside." Ramirez confronted them at arm's length, and they continued yelling at each other for several seconds. Olguin later claimed he asked Ramirez if he had crossed out the graffiti, but Ramirez kept saying, "Shelley," and insisting it was his street. Olguin responded by saying the street belonged to him, and both men clenched their fists. Mora then punched Ramirez in the face, knocking him down.

As Hernandez and others began moving toward Ramirez to give him aid, he stood up and began walking toward Mora's group. Olguin pulled the gun from his waist and fired, killing Ramirez with a single shot to the chest. Then he ran away with Mora and Hilario. Olguin testified he only took the gun out because he thought the people moving toward him were armed and claimed the gun discharged accidentally when Ramirez grabbed it, but that version was contradicted by another witness.

Terry Zlateff, the lead investigator on the case and an expert on street gangs described Southside F Troop as an Hispanic gang of approximately 100 members that claims territory in southwest Santa Ana. Zlateff discussed the importance of territoriality to Hispanic gangs, explaining that graffiti is used to mark the gang's territory and that crossing out a gang's graffiti is a form of disrespect. Respect, usually in the form of fear, is of paramount importance to Hispanic gangs, so crossing out graffiti or calling out a gang's name to members of a rival gang--another demonstration of disrespect--often results in a violent confrontation. Mutual challenges of this sort have become the expected prelude for violent confrontations between gang members, especially where groups have gathered or weapons are available.

The criminal street gang enhancement was tried in a bifurcated hearing at which the evidence presented during the guilt phase was considered. Zlateff was the sole witness. He opined two other offenses had been committed by Southside members for the gang's benefit: an August 1989 attempted murder and a July 1991 homicide. Zlateff also expressed the opinion Ramirez's murder was a crime committed for the benefit of Southside. A certified copy of the court records in the prosecution leading to a conviction in the July 1991 case was admitted. The trial court also took judicial notice of People v. Gamez (1991) 235 Cal.App.3d 957, 286 Cal.Rptr. 894, which affirmed a conviction for the August 1989 attempted murder and a finding the crime was committed for Southside's benefit.

II

Both defendants object to the trial court's admission of evidence third persons threatened Robert Ulloa after the Ramirez shooting. During redirect, Ulloa admitted he left the scene of the shooting and did not voluntarily provide information to the police, explaining, "I didn't want anything to happen to my house or to my family." Over objection, Ulloa testified someone telephoned him a few days after the shooting saying they knew where he lived and he had better watch his back. When Ulloa asked the caller for her name, she replied, "Don't worry about it. Go, Southside Gang." Subsequently, someone spray-painted the word "Rata," (Spanish for "rat") on his driveway. The trial court admonished the jury this evidence could only be used "as it has relevance, if any, to the witness' state of mind, attitude, actions, bias, prejudice, lack or presence thereof."

Mora argues this was inadmissible evidence of third party attempts to suppress evidence; Olguin contends the trial court abused its discretion by not excluding it under Evidence Code section 352. Both are wrong.

The trial court correctly limited the evidence to "the witness' state of mind, attitude, actions, bias, prejudice, lack or presence thereof," and we presume the jury adhered to the trial court's limitations on this testimony. (People v. Ballard (1988) 203 Cal.App.3d 311, 320, 249 Cal.Rptr. 806; People v. Zack (1986) 184 Cal.App.3d 409, 416, 229 Cal.Rptr. 317.) "Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid.Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481 [247 Cal.Rptr. 172, 754 P.2d 218].) Testimony a witness is fearful of retaliation similarly relates to that witness's credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30 [252 Cal.Rptr. 525, 762 P.2d 1249].) It is not necessary to show threats against the witness were made by the defendant personally, or the witness's fear of retaliation is directly linked to the defendant for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20 [164 Cal.Rptr. 1, 609 P.2d 468] [testimony witness was afraid to go to jail because defendant had friends there relevant to witness's credibility].)" (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588, 28 Cal.Rptr.2d 897.)

Mora correctly points out that California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant. (People v. Hannon (1977) 19 Cal.3d 588, 596-600, 138 Cal.Rptr. 885, 564 P.2d 1203; People v. Weiss (1958) 50 Cal.2d 535, 551-554, 327 P.2d 527.) But that was not done here. There was never an argument, never even a suggestion that this evidence reflected consciousness of guilt. It was strictly limited to establishing the witness's state of mind. For this purpose it was highly relevant.

A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility (Calvert v. State Bar (1991) 54 Cal.3d 765, 777, 1 Cal.Rptr.2d 684, 819 P.2d 424), the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant's conduct or disapproves of the victim. It could come from a person who perceives a social or political agenda to have been advanced by the defendant's actions. It could come from a member of the witness' profession, religion, or subculture, who disapproves of the witness' involvement for some reason. It could come from a zealot of any stripe, large groups of whom seem ready to rally to virtually any cause these days.

Regardless of its source, the jury would be entitled to evaluate the witness' testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness' fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial. The trial court acted well within its discretion in insuring the jury would have such evidence and would properly evaluate it.

III

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