People v. Perez
| Decision Date | 07 December 2022 |
| Docket Number | F082332 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ELIJAH ELOJIO PEREZ, Defendant and Appellant. |
| Court | California Court of Appeals |
THE PEOPLE, Plaintiff and Respondent,
v.
ELIJAH ELOJIO PEREZ, Defendant and Appellant.
F082332
California Court of Appeals, Fifth District
December 7, 2022
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. PCF317388A Melinda Myrle Reed, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren Indermill, Robert K. Gezi, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
Defendant Elijah Elojio Perez was convicted of several crimes arising out of an alleged gang-related attack on a dropout of the Norteno gang. We accept the Attorney General's concession that the gang-related conviction and enhancements must be reversed pursuant to Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), but otherwise reject defendant's contentions and affirm the remainder of the judgment.
BACKGROUND
In an information filed September 22, 2015, the Tulare County District Attorney charged defendant with willful, deliberate and premeditated attempted murder (count 1; Pen. Code,[1] §§ 187, 664), assault with a deadly weapon by means of force likely to cause great bodily injury (count 2; § 245, subd. (a)(1)), and active participation in a criminal street gang (count 3; § 186.22, subd. (a).) The information further alleged that the attempted murder and assault with a deadly weapon were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Finally, the information alleged a prior prison term allegation under section 667.5, former subdivision (b).
Defendant admitted the prior prison term. A jury convicted him on all three charges and the gang enhancements.
The court sentenced defendant to 15 years to life on count 1, to run consecutively to his sentence in another case. The court also sentenced defendant to stayed (§ 654) counts of four years on count 2, plus five years for the gang enhancement, and three years on count 3.
FACTS
Testimony of Jose Alcantar
When he was younger, Jose Alcantar[2] was jumped into a gang called the East Side Poros, which is a Northern (i.e., Norteno) gang. Jose remained in the gang for eight or nine years. By the time of his trial testimony in February 2016, Jose claimed his gang membership was a long time ago and that he had made a mistake.
Jose said it is "pretty bad" for someone to leave a gang because the rule is that when "[y]ou are in, you are in." Gang members take the issue "very seriously" and consider those who drop out to be "enemies." Dropouts are sometimes attacked, but more often are ignored.
Jose said his fellow gang members "probably" told him about gang activities, but he does not remember because he had alcohol problems. When Jose left the gang, he relocated and tried to stay away from "everyone."
On April 28, 2015, Jose went to meet his friend Beto around 9:00 p.m. at an alley in Porterville. As Jose was driving his truck down the alley, he saw "a lot of people," and it seemed liked a party. The people were "[d]rinking, mellowing, just hanging out." Beto was not there. Jose stopped in his truck and stayed for a couple of minutes. He got out of the truck, went to a little house nearby, and smoked a joint for "probably about 20 minutes."[3] As he was about to leave, he was attacked by "like ten scum bags."[4] He was stabbed nine or 10 times. As he ran away, he noticed he was bleeding "a lot" from the side of his chest.
Jose was hospitalized for about five days and underwent surgery as a result of his injuries. He has several scars from the attack.
Statement to Police
Jose told Detective Tyson Tashiro that a man named Elijah was one of the attackers. Jose said he knew Elijah from "prior gang association."
Jose also said a man with the moniker "B-rad" was involved in the attack. Jose said he had a prior conflict with B-rad because Jose was known as a "dropout" or a "rat."
Jose said that while he was in the apartment, "some chubby dude" came in and asked him, "'Hey can I talk to you real quick?'" B-rad and defendant were outside with a group of people. Jose said, "What's up?" and the group surrounded him. Defendant was standing in the center and asked Jose what his name was. B-rad asked Jose if he remembered who he was. Jose said he remembered. The group of about 15 or 20 people then attacked Jose, hitting and punching him. Eventually, a "young dude" wearing a red shirt stabbed him. The attackers were yelling out, "West Side."
Defendant was "the main one" involved in the attack. Defendant was telling the group to attack Jose. When Jose took off running, defendant told people nearby, "'Stop him, stop him.'"
Detective Tashiro interviewed Jose again the next day and showed him a photographic lineup. Jose identified defendant as the "Elijah" who had been involved in his attack. Jose also identified codefendant Albert Garcia as "B-rad."[5]
Additional Trial Testimony of Jose Alcantar
At trial, Jose testified he did not remember who stabbed him. Nor did he remember telling police that one of the individuals involved was named Elijah. He also testified he did not remember telling police he had connections with an individual named "B-rad."
Jose testified he did not remember viewing or signing a photographic lineup. However, he recognized the signature on a lineup presented by the prosecutor as his own.
He admitted he did not want to come to court and had to be arrested and compelled to come to court.[6]
Jose denied telling police that B-rad had previously accused him of being a rat. However, he acknowledged that if he had been accused of being a rat, that would make him subject to attack by his gang. He would have had to leave the gang.
Jose claimed he did not even remember speaking to police, due to his prior heavy marijuana use.
Detective Tyson Tashiro
When Detective Tyson Tashiro initially tried to talk to Jose after the attack, Jose was "loopy, in and out" and was in a lot of pain. Jose was reluctant to talk to him. However, he eventually did speak with Tashiro as described above.
Detective Tashiro also met defendant about a month later. He matched the description Jose had given him for the Elijah involved in the attack with the description of defendant.
Detective Tashiro testified B-rad had tattoos of "T" and "C" on his right and left arms, respectively. Northern gang members often have "T.C." tattoos to reflect their loyalty and affiliation with the Tulare County Northern gang clique.
Christina D. and Megan D.
Christina D. testified she lived in a trailer with her boyfriend Gerald and a man named Elijah.[7] Elijah did not respect her home and would play music loudly.
On April 28, Jose walked through Megan D.'s house even though she did not know him. Jose went to Christina's trailer nearby. Eventually, Jose left.
Christina told police she saw 20 individuals surrounding Jose outside. When asked what she saw next, Christina said she did not see exactly what happened, but that Jose was attacked. She said her roommate, Elijah, seemed to be leading the attackers. Christina believed Jose was stabbed and then ran down the driveway as the group chased him. In a photographic lineup following the incident, Christina identified a photograph of defendant as the "Elijah" she witnessed in the crime.
At trial, however, Christina denied telling Detective Ward that she saw Jose surrounded by 20 individuals. When asked if she told Ward that Jose had been stabbed and fled on foot, Christina testified: "I don't know." When asked if she told Ward that Elijah had "started it," Christina testified: "I don't know." Christina also denied seeing Elijah in the courtroom at trial.
Megan D. also saw Jose being hit and fall to the floor. A lot of the people in the crowd were wearing red clothing. Jose then "took off." Megan did not see anyone get stabbed. Megan testified defendant was present in the crowd at the time, but she could not tell what he or any of the other people around were doing.
During the law enforcement investigation, Megan was unwilling to meet with Detective Tashiro at her residence because gang members were possibly watching. Tashiro scheduled a meeting with Megan at a different location, but she did not show up. Tashiro was not able to contact Megan thereafter. Megan was subpoenaed but failed to contact Tashiro for court arrangements. She was taken into custody and brought to court. Megan was scared.
Tina G.
Tina G. has a child with defendant. On June 28, 2013, Tina told a sheriff's deputy that defendant had threatened her. Tina told the deputy that defendant was possibly a Northern gang member. While they were speaking, defendant sent her a picture via text message of him making gang signs. The picture, which was later admitted into evidence,
depicted defendant "throwing out gang signs with a 'W' and 'S.'" The deputy testified that his training and experience indicated the sign represented "West Side."
Gang Expert
Detective Lancelot Kirk testified as a gang expert for the prosecution. The Northerners or Nortenos is a gang active in Tulare County. It is the largest Hispanic gang in Northern California, with a presence in virtually every community in Northern California.
In Porterville, the Norteno gang has three "cliques" or "subsets": the East Side Poros (or East Side Varrios Poros), the Varrios Centro Poros, and the West Side Poros. Above the "clique" level, Norteno leaders coordinate and keep them together as a gang. The leader of Porterville Nortenos at the time of the present incident was named Pedro Sanchez, also known as "Pistol Pete."
The symbol of the Nortenos is the number...
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