People v. Perez
Decision Date | 08 January 1981 |
Docket Number | Cr. 36380 |
Citation | 170 Cal.Rptr. 619,114 Cal.App.3d 470 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Nicholas PEREZ, Defendant and Appellant. |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.
Defendant was charged in a three count information with kidnapping for the purpose of robbery (Pen.Code, § 209), robbery (Pen.Code, § 211), and the unlawful taking of a vehicle (Veh.Code, § 10851) occurring on April 16, 1979. After a jury trial he was found guilty as charged and sentenced to prison for life. He appeals.
At the pretrial hearing on defendant's motion for a preliminary ruling on the admissibility of evidence (Evid.Code, § 402), the prosecutor made an offer of proof as follows: "Your Honor, I have some deputies here, Deputy Grani and Valdemar, who are assigned to the Lynwood Station, experts in the street gang activities."
Defendant objected to any testimony relating to gangs or shootings on the grounds such testimony was not relevant and was so prejudicial as to far outweigh any probative value.
The court ruled that gang membership was relevant to the issue of identity and the shooting incident was relevant as to the accuracy of Mr. Denney's testimony. 1 The court stated,
On the evening of April 16, 1979, Francisco Bautista was in possession of a 1965 Chevy Nova, license No. REW170, which he had borrowed from the owner Miguel Flores. Bautista drove over to an apartment building on El Segundo Boulevard, near Peach Street. He parked the car on the street, went into the apartment building and visited with his friends.
Bautista returned to the car at about 8:00 p. m. He entered the car and started it with a key. Before he had a chance to drive away, he was approached by a person Bautista identified as defendant. Defendant made an inquiry of Bautista, and then signaled to another person who also approached the vehicle on the driver's side. The second person, identified at the trial as Robert Ontiveros, placed a knife to Bautista's neck. The blade was four or five inches long. Defendant told Bautista to move over and turn the engine off. Defendant threatened to kill Bautista if he did not move over.
Defendant got into the driver's seat and told Bautista to give him all the money he had. Ontiveros got into the back seat and placed the knife to the back of Bautista's neck. As defendant was starting the vehicle, Bautista was removing the $17.00 he had in his pocket. He had some more change in his wallet. By the time Bautista had given defendant the money, they had traveled approximately half a mile. Bautista took his wallet out and placed it on the seat. He was asked for more money and was searched by Ontiveros. Defendant continued to drive the car and told Bautista to take off his boots. The car was stopped after driving around for 15 to 30 minutes. Bautista minus money, wallet and boots was ordered out of the car. Ontiveros got into the front seat and defendant drove off.
Sometime later, the police showed Bautista some photographs. Bautista was able to pick out photographs of defendant and Ontiveros. Bautista was asked on cross-examination if he had noticed anything unusual about defendant. He replied that he had not.
On April 19, 1979, Marty Buchanan resided at 2922 Poplar Drive, Lynwood. At 1:30 a. m., a car similar to the Chevy Nova belonging to Flores stopped in front of his home. He was in fear that the persons in the vehicle were going to shoot at his house so he got his rifle. He stated that a person in the back seat fired at him so he fired three rounds into the car. He was not able to identify any of the occupants in the car.
On the evening of April 18, 1979, Richard Leroy Denney had met defendant at Chico's Pizza Palace. Defendant picked Denney up in the 1965 Chevy Nova owned by Flores. There were two other individuals in the car, one of whom was Ontiveros. Defendant was the driver, Ontiveros sat in the front passenger seat, and Denney was in the back. In the early morning hours of April 19, 1979, the car was driven down Poplar Street. The car came to a stop in front of a house. Three shots were fired at the car, one striking Denney. He was taken to the Martin Luther King Hospital and left there for treatment. The 1965 Chevy Nova was found abandoned in the hospital lot, parked illegally. The front tire had collapsed, there was a bullet hole in the left rear fender, and there was a red stain on the rear seat which appeared to be blood.
Deputy Valdemar testified that he was a deputy sheriff for the County of Los Angeles assigned to Youth Services Bureau, Operation Safe Streets, Lynwood gangs. He has had approximately 50 hours of classroom study concerning street gangs and is familiar with the Mexican-American barrio gangs in the Lynwood/Compton area.
He has run across members of the Compton Varrios Tres gang in his duties. It is common among gang members to tattoo themselves prominently with their gang symbol. The gang symbol for Compton Varrios Tres is CV3. Defendant and Ontiveros are members of the Compton Varrios Tres gang and each has the tattoo CV3 on his hand.
Defendant and Ontiveros were required by the court to walk by the jury and show their tattoos. The court admonished the jury as follows:
Defendant's sisters and the sister of Ontiveros testified that at the time of the kidnap-robbery on April 16, 1979, defendant was at Chico's Pizza Palace. Defendant testified that on the night of April 16, 1979, while at Chico's he saw Ontiveros arrive in the Chevy Nova. He further testified that in the early morning hours of April 19 1979, he drove the Chevy Nova because of Ontiveros' intoxication. There was a key in the ignition, he did not know the 1965 Chevy Nova was stolen and he left it at the Martin Luther King Hospital because it was not "runable."
No rebuttal evidence was presented.
Defendant Perez contends that: (1) the trial court committed prejudicial error in admitting evidence of the defendant's gang membership and of the shooting on April 19, 1979; (2) the trial court failed to exercise its discretion in sentencing defendant on the kidnap-robbery charge.
On appeal the people argue that it is proper to introduce evidence which is either unpleasant or negative pertaining to an organization to which a defendant belongs where it can be shown that the organization to which the defendant belongs is relevant to an issue at trial.
We agree with this basic proposition and state at the outset that evidence of gang membership is not per se inadmissible. In order to be admissible it must meet the test of relevancy.
Evidence Code section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
The asserted active membership in the "CV3" gang by defendant, as testified to by Deputy Valdemar, did not have any "tendency in reason" to prove a disputed fact, i. e., the identity of the person who committed the...
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...implications.... [T]he word 'gang' takes on a sinister meaning when it is associated with activities." (People v. Perez (1981) 114 Cal.App.3d 470, 479, 170 Cal.Rptr. 619.) Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if i......
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People v. Munoz
...relevant unless "the affairs of such an organization [are] in issue." (2 Wharton Crim.Evid. 405, italics added.) In People v. Perez, 114 Cal.App.3d 470, 170 Cal.Rptr. 619 (hrg. den. S.Ct. Mar. 11, 1981) applied this rule to any evidence concerning gang membership of the defendant unless sho......
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People v. Munoz
...unless "the affairs of such an organization [are] in issue." (2 Wharton Crim.Evid. 405; italics added.) In People v. Perez (1981) 114 Cal.App.3d 470, 170 Cal.Rptr. 619 (hg. den. S.Ct. Mar. 11, 1981) applied this rule to any evidence concerning gang membership of the defendant unless shown t......
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...We examine the record to determine whether the court abused its discretion in admitting the statement. (See People v. Perez (1981) 114 Cal.App.3d 470, 477-478, 170 Cal.Rptr. 619; Allen v. Toledo (1980) 109 Cal.App.3d 415, 419-421, 167 Cal.Rptr. We discern no such abuse. First, the statement......