People v. Ramirez

• Decision Date: 05 February 2016
• Docket Number: G052144
• Citation: 244 Cal.App.4th 800,198 Cal.Rptr.3d 318
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry RAMIREZ and Catherine Rodriguez Villarreal, Defendants and Appellants.

244 Cal.App.4th 800

198 Cal.Rptr.3d 318

The PEOPLE, Plaintiff and Respondent,

v.Jerry RAMIREZ and Catherine Rodriguez Villarreal, Defendants and Appellants.

G052144

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

Filed February 5, 2016

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant, Jerry Ramirez.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant, Catherine Rodriguez Villarreal.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane–Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THOMPSON, J.

A jury convicted defendants Jerry Ramirez and Catherine Rodriguez Villarreal, respectively, of attempted murder and assault with a deadly weapon. But the jury found them both not guilty of active participation in the Sureños, an alleged criminal street gang, and the jury rejected gang sentencing enhancement allegations that the attempted murder and the assault were committed for the benefit of the Sureños.

In this appeal, defendants' primary complaint is that the trial court erroneously denied their motion to set aside the gang participation charges and the gang enhancement allegations under Penal Code section 995¹ (the 995 motion) and, as a result, irrelevant but highly inflammatory gang evidence was admitted which deprived them of their due process rights to a fair trial on the attempted murder and assault charges.

We conclude the preliminary hearing evidence did not support the gang participation charges or the gang enhancement allegations, so the 995 motion should have been granted. We also determine the gang evidence erroneously admitted at trial violated defendants' due process rights and resulted in a fundamentally unfair trial. Therefore, the judgment must be reversed. This disposition moots defendants' remaining contentions.

FACTS AND PROCEDURAL HISTORY

In 2011, the Mendoza family, Andy, Natalie, David, Ernest, Irma, and their other siblings and mother, lived in a residence on Outer Hesperia Road in Victorville.² Villarreal lived a few doors down from the Mendozas on the same street. Apparently, the two families had lived peaceably for a long time. In fact, Villarreal had been one of Irma's childhood friends. Nevertheless on November 15, during a dispute between Villarreal and Natalie, Villarreal allegedly hit Natalie with a baseball bat, and Villarreal's boyfriend Ramirez admittedly shot Andy.

A complaint charged Ramirez and Villarreal with attempted, premeditated murder of Andy (§§ 187, 664, subd. (a)); Villarreal with assault with a deadly weapon on Natalie (§ 245, subd. (a)(1)); and both defendants with active participation in a criminal street gang (§ 186.22, subd. (a) (gang participation)). The complaint also alleged defendants committed the attempted murder and the assault for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1) (gang enhancement); § 12022.53, subd. (e)(1)), and alleged Ramirez personally discharged a firearm and caused great bodily injury (§ 12022.53, subds.(b), (c), (d) & (e)(1)).

At the preliminary hearing, two sheriff's deputies testified concerning statements made by Andy, Natalie, and Ernest. Andy told the deputies he had gone outside the family home to help Natalie, and Ramirez shot him in the face.

Natalie confirmed Andy's story. She said she had been talking on the phone in her bedroom when she heard a car horn outside. She walked outside to investigate and saw several people in front of her house, including Villarreal and Ramirez. An argument started and Villarreal came at her with a baseball bat. Natalie cried out for her family to help her and raised her arms to cover her face. Villarreal swung the bat and hit Natalie's left arm.

According to Natalie, when Andy came out of the house and confronted Ramirez, Ramirez pointed a gun at Andy's face and fired. Andy fell to the ground, and Ramirez and Villarreal and the other people with them got into several cars and fled. Natalie said there had been a long-term disagreement between Andy and Ramirez, but she did not specify a precipitating incident.

Ernest said he grabbed a baseball bat to defend his family, but he dropped the bat after he got outside and realized Andy had been shot. A bat was later found in Ernest's bedroom.

Sheriff's Deputy Tim Jackson testified as the prosecution's gang expert, as follows:

DIRECT EXAMINATION BY PROSECUTOR:

"Q. Good morning, Deputy.

"A. Good morning.

"Q. Are you familiar with the Sureños?

"A. Yes, ma'am.

"Q. How are you familiar with him?

"A. The Sureños are a criminal street gang ... based in the southern half of California. Every Hispanic gang member that resides south of Bakersfield is affiliated with the Sureños. The Sureños were created by the Mexican Mafia, who are the largest and most powerful prison gang in our country. The Sureños are the foot soldiers, if you will, for the Mexican Mafia to carry out their dirty work due to the criming, taxing, assaults, murders, all those things. There's only one gang south of Bakersfield that has not aligned itself with being a Sureño or the Mexican Mafia....

"Q. Have you personally contacted Sureño members?

"A. Yes.

"Q. Approximately how many?

"A. Between the jail, custody settings, and patrol, over 100.

"Q. Do the Sureños have any rivals?

"A. Yes, the Norteños.

"Q. And what, if any, symbols do the Sureños use?

"A. They utilize the number 13. It represents the Mexican Mafia. They utilize the color blue. They utilize the word Sur or Sureño to represent themselves.

"Q. And can you briefly describe the Sureños' territory?

"A. As I stated before, the Sureños claim everything south of Bakersfield in California.

"Q. Based on your background, training and experience, do the Sureños have a primary purpose of committing offenses?

"A. Yes.

"Q. And has this gang established a pattern of criminal activity?

"A. Yes.

"Q. What types of crimes?

"A. Anything from violent crimes against a person to narcotics sales distribution, robberies, burglaries, auto theft.

"Q. Are you familiar with a person by the name of Toby Stahlberg? And that's spelled S-t-a-h-l-b-e-r-g, with a date of birth of January 19, 1979?

"A. Yes.

"Q. Do you have an opinion as to whether or not he is a member of the Sureños?

"A. Yes, I do.

"Q. What is that? What's the basis of that opinion?

"A. Mr. Stahlberg is a self-admitted member of the Eastside Rivas criminal street gang, who align themselves with the Sureños and Mexican Mafia. His moniker is Traveiso, which stands for ‘trouble.’ He has probably a rough estimate 20 or so tattoos indicative of his gang membership.

"Q. And do you have an opinion as to whether or not he's a member of the Sureños?

"A. Yes, I do.

"Q. What is that opinion?

"A. He is.

"Q. Are you familiar with Mr. Stahlberg's conviction of a violation of [former] Penal Code Section 12021 and 186 [.]22 in Court Case FVI1001976 with a date of incident on August 27th, 2010?

"A. Yes, ma'am.

"Q. Are you familiar with a person by the name of Alfonso Coronado with a date of birth of July 6, 1983?

"A. Yes.

"Q. And how are you familiar with him?

"A. Alfonso Pancho Coronado is a member of the Eastside Victoria criminal street gang, who also align themselves with the Sureños.

"Q. Do you have an opinion as to whether or not Mr. Coronado is a member of Sureño?

"A. Yes, I do.

"Q. And what is that opinion?

"A. He is.

"Q. Are you familiar with Mr. Coronado's conviction under Penal Code Section 11378 and 186[.]22 in Court Case FVI1100791 with a date of incident on March 30th, 2011?

"A. Yes.

"Q. Are you familiar with the defendant Mr. Jerry Ramirez?

"A. Yes.

"Q. Do you see him in the courtroom today?

"A. Yes, I do.

"Q. During your investigation did you familiarize yourself with any of the defendant's tattoos?

"A. Yes, I did.

"Q. Based on your background, training and experience, were any of his tattoos significant to you?

"A. Yes.

"Q. Which ones?

"A. Mr. Ramirez has several tattoos that are significant to gang lifestyle due to the fact they're not considered body art. They're not recognized by the general public as art or recognized by the gang community. Mr. Ramirez has three dots on his right arm, which is utilized by the gang community standing for ‘My Crazy Life’ or ‘Mi Vida Loca.’ He also has a modified Aztec calendar on his left forearm. It's incomplete, but it contains the basics, if you will, of the calendar. Aztec art is commonly used by the Mexican Mafia and Sureños to discreetly represent gang affiliation. He also has an Aztec war shield on his right shoulder. The Aztec war shield is generally awarded to a Sureño after they've committed some type of crime being violent for the Mexican Mafia. It also is somewhat distorted. I would have to say that the tattoo artist in that case probably didn't know exactly what he was trying to put on. But it has all the basics, the three steps to make up the fundamentals of the tattoo with the three steps of the Aztec warrior.

"He's also got an Aztec temple on his ribcage area. Just above the temple there's an angel that has coincidently 13 wings, which is indicative of Mexican Mafia membership. He's got a star on the right ribcage area as well. It's along with the other tattoos in that area. And it's a southern star which technically does not exist. The southerners have created a specific southern star to combat the northern star from Norteño. They'll change the number points on the star and denote an S on the bottom, which Mr. Ramirez has.

"Q. Thank you. Now, based on your background, your training and experience, do you have an opinion as to whether or not the defendant Ramirez is an active Sureño member?

"A. Yes, I do.

"Q. What is that opinion?

"A. Based on the fact that he has tattoos, although discreet, they are consistent with membership in a Sureño criminal street gang. He also has a photograph that I was able to locate via his Facebook where he's

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