People v. Pena, H023394.

• Decision Date: 29 April 2005
• Docket Number: No. H023394.,H023394.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven PENA et al., Defendants and Appellants.

28 Cal.Rptr.3d 69

128 Cal.App.4th 1219

The PEOPLE, Plaintiff and Respondent, v. Steven PENA et al., Defendants and Appellants.

No. H023394.

Court of Appeal, Sixth District.

April 29, 2005.

As Modified on Denial of Rehearing May 27, 2005.

Review Granted July 27, 2005.

Law Offices of Sara Theiss, Sara Theiss, San Francisco, Attorney for Defendant and Appellant — Pena (Under appointment by the Sixth District Appellate Program).

Balin & Kotler, Eileen Kotler, Pacifica, Attorney for Defendant and Appellant — Castaneda (Under appointment by the Sixth District Appellate Program).

Law Offices of Barbara Michel, Barbara Michel, for Attorney for Defendant and Appellant, Perez.

Law Offices of John F. Schuck, John F. Schuck, Palo Alto, Attorney for Defendant and Appellant — Carrasco (Under appointment by the Sixth District Appellate Program).

Law Offices of Peter Gold, Peter Gold, Berkeley, Attorney for Defendant and Appellant — Patlan.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Acting Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, Attorneys for Plaintiff and Respondent.

RUSHING, P.J.

In this case, we are called upon to apply the principles set forth in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford), in the context of the joint trial of five alleged gang members accused of an assault on a fellow jail inmate.

Defendants Castenada, Patlan, Pena and Perez contend that the admission of codefendant Carrasco's extrajudicial statement to Officer Tarabini violated their constitutional rights to confrontation and cross-examination. They also claim that the use of this statement by the gang expert, Officer Miranda, hindered their ability to determine the reliability of the expert opinion, and was prejudicial. We agree and reverse. Because we determine that the convictions and gang enhancements of several defendants must be reversed, we do not reach many of the issues raised in the original briefs.¹

BACKGROUND

On October 27, 2000, Charlie Langenegger was serving time in Santa Clara County Jail, and housed in a 16-man cell, with four of the named defendants (Gustavo Castenada, Jerry Patlan, Steven Pena and Andres Perez) and others. Defendant Christopher Carrasco was housed in a four-person cell across the walkway. Langenegger worked as a barber in the jail and as such, was given certain privileges, including being allowed to go to different parts of the facility.

That night, Langenegger was asleep on his bunk, when he was awakened by someone calling his name. He went to the front gate of the cell and was hit multiple times from behind. According to his testimony at trial, he did not see who hit him, but he could tell that there was more than one person involved. Langenegger was hit and kicked numerous times, and eventually yelled to the guard, "Man down."

Correctional Officer Lee testified that he responded to the call and found Langenegger holding on to the cell gate and looking dazed. He reported that Langenegger said: "`Chris called me to the gate. I got out of bed, and Norteños jumped me.'" Officer Lee took Langenegger to another location, and then investigated the incident. In the cell, he noticed defendant Patlan breathing rapidly.

At trial, Osvaldo Pascali, a cellmate who witnessed the attack, testified. He said that Carrasco called Langenegger to the gate, and Perez hit him in the head from behind. Pascali said that Pena, Patlan and Castenada joined the attack and kicked and punched Langenegger, as he fell to his knees and then to the ground. Pascali reported the same details to Officer Lee. Pascali also said he was afraid for his safety as a result of his testimony. He testified that he was currently in protective custody within the jail, but still did not feel adequately protected. He said that a person who is labeled a "snitch" is often killed.

Sergeant Marc Tarabini, a jail supervisor, called Langenegger after he was sent to the emergency room. When Sergeant Tarabini asked who had attacked him, Langenegger refused to give names, saying he was afraid of the Norteños. Langenegger told Tarabini that the Norteños "run the tier and run the whole place." He said that he was being pressured by Norteños to run "kites" (messages passed by inmates) to the maximum security area and that he had refused.

When Langenegger returned from the hospital, Officer Lee contacted him and gave him the names of the defendants, and asked if they were the ones who attacked him. According to Officer Lee, Langenegger nodded his head and thanked him.

At trial, Langenegger denied making any of the statements about the attack as reported by Tarabini or Lee. He testified that his only statements were that he did not know who attacked him. He also admitted to a code of silence in prison, and said that an inmate testifying against another inmate would be stabbed. He said that protective custody does not provide protection from this type of retaliation. Langenegger also testified as to his injuries: his jaw was broken, it was wired shut for four months, and required several surgeries. He also suffered extensive bruising and a chipped hip bone.

Also at trial, Sergeant Tarabini testified about an interview he had with defendant Carrasco on the night of the incident. According to Tarabini, Carrasco admitted that he had called Langenegger to the gate because Langenegger had "[d]isrespected a Norteño gang member" and "had to be checked." Sergeant Tarabini also noticed that Carrasco appeared to be under the influence of a stimulant, and Carrasco admitted using methamphetamine that night.

Various law enforcement officers testified at trial concerning the evidence of gang membership accumulated on each of the defendants.

Sergeant David Miranda qualified as a gang expert with the Department of Corrections, and explained that "The Machine" is a regimented exercise program performed by Norteño gang members while in custody. Sergeant Miranda testified in detail about the origins of the Norteño gang especially in prison. He explained membership requirements, as well as specific tattoos and the color red as common symbols. He further opined that, based on the facts of the case, he believed that the assault on Langenegger was carried out with the specific intent to promote and further Norteño gang activity. He also found significant defendant Carrasco's statement to Sergeant Tarabini, that Langenegger had "disrespected a Norteno gang member" and "had to be checked." This statement showed the attack was gang-related, according to Miranda.

Several defendants presented witnesses at trial. Defendant Perez testified himself and stated that he was not a Norteño gang member and did not know the defendants when he was first placed in cell 336. He also testified that he called Langenegger to the bars, and as Langenegger approached, Perez punched him in the mouth. As Langenegger staggered, Perez continued to punch him, and he denied that anyone else was involved in the assault. Perez explained that about 20 minutes before the assault, he learned that Langenegger had previously been convicted of rape. Perez's younger sister had been raped and he was upset that the rapist was released after only a year in custody. Perez's mother Alice testified, and confirmed the details surrounding the sister's rape. She also testified that she had never known Perez to be involved in a gang, and that before he was incarcerated, he was working 12 to 14 hours a day. Correctional Officer Dennis Cortez also testified that he was a long-time friend of Perez's and had never known him to be involved in a gang.

Defendant Patlan called Parole Agent Michelle Donovan as a witness to give details about Osvaldo Pascali's parole hearing on November 8, 2000. Agent Donovan testified that Pascali was returned to custody on a parole violation on October 10, 2000, and at his hearing on November 8, he received credit for time served and was released. She admitted that she had mentioned to the parole hearing officer that Pascali had cooperated in the investigation of five other inmates, but she did not believe that fact had any bearing on the result of the parole hearing.

Defendant Pena presented evidence that there were 16 people housed in cell 336 on the night of the incident, and that seven of them were believed to be gang members.

Defendants were all charged with assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1); count 1),² and battery with serious bodily injury (§§ 242, 243, subd. (d); count 2). The information also alleged personal infliction of great bodily injury and offenses committed for the benefit of a criminal street gang. (§§ 12022.7, 186.22, subd. (b)(1).) (Prior convictions and strikes were also individually alleged.) A jury found the defendants guilty as charged.³

DISCUSSION

I

Admission of Codefendant Carrasco's Statement

Background

Prior to trial, the prosecution moved to admit codefendant Carrasco's statement to Sergeant Tarabini that Langenegger had "disrespected a Norteño gang member" and "had to be checked." Carrasco refused to testify at trial. Defendants Castenada, Patlan, Pena, and Perez vigorously objected to the admission of Carrasco's statement, arguing that the statement both implicated them as alleged Norteños on trial for the assault, and informed the jury that the assault was committed for gang-related reasons. The defendants also requested severance of their trials. The court overruled defendants' objection, stating: "[I]f the evidence bears out what [the prosecutor] has indicated it would, the Court would permit that statement to come in. It is a very general statement without specifying which defendant or which person might have been disrespected." The court denied the prosecutor's further request to broaden the admissibility...