People v. Rodriguez
| Docket Number | F082822 |
| Decision Date | 29 June 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOEL ESTEBAN RODRIGUEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No BF171316C Charles R. Brehmer, Judge.
Hilda Scheib, 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, Robert K. Gezi, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
In 2018, defendant Joel Esteban Rodriguez and his three codefendants, all of whom are related, were arrested and charged with the stabbing death of Kasey Villegas.[1]All four were charged by information with first degree murder (Pen. Code, §§ 187, subd (a)/189, subd. (a); count 1),[2] and assault by means of force likely to produce great bodily injury (GBI) (§ 245, subd. (a)(4); count 2). The information alleged both counts were committed "for the benefit of, at the direction of, or in association with" (full capitalization omitted) the Eastside Bakers (§ 186.22, subd. (b)(1)); and the assault count included an enhancement for personal infliction of GBI (§ 12022.7, subd. (a)). As to defendant, the information also alleged two prior serious or violent felony convictions within the meaning of the "Three Strikes" law, two prior serious felony conviction enhancements, and two prior prison term enhancements. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, former subd. (b).)
Prior to the close of evidence, the trial court dismissed the gang enhancement allegations against all four codefendants for insufficient evidence. (§ 1118.1.) The jury subsequently rejected the charge of first degree murder, but convicted defendant of second degree murder and assault with a deadly weapon likely to cause GBI with a GBI enhancement.[3] In a bifurcated proceeding, the trial court found that defendant had two prior serious or violent felony convictions. The trial court sentenced defendant on count 1 to 45 years to life for murder with an additional 10 years for two prior serious felony conviction enhancements; and on count 2 to 25 years to life for assault with an additional three years for the GBI enhancement and 10 years for the prior serious felony conviction enhancements, stayed under section 654.
On appeal, defendant advances three claims challenging the gang evidence admitted in this case. First, defendant claims that after dismissing the gang enhancement allegations for insufficient evidence, the trial court erred in failing to strike the testimony of the prosecution's gang expert. Second, he claims that the gang expert's opinion he was a member of the Arvina 13 criminal street gang is not supported by sufficient evidence. Third, he claims that the amendment of section 186.22 and the addition of section 1109 pursuant to Assembly Bill No. 333 apply retroactively and entitle him to reversal of his convictions.[4] In addition to these challenges to the gang evidence, defendant claims that the trial court erred in instructing the jury with CALCRIM No. 361 (Failure to Explain or Deny Adverse Evidence) and, combined with the other errors, reversal of his convictions is required.
In a combined response to defendant's first two claims, the People argue that he forfeited his challenge to admission of the gang evidence by failing to object, admission of the evidence did not render the trial fundamentally unfair, and any state law error was harmless under Watson.[5] With respect to Assembly Bill 333, the People argue that the amendments to section 186.22 do not apply in this case because the gang enhancement allegations were dismissed, and section 1109 does not apply retroactively, but the failure to bifurcate the enhancements was harmless in any event. Finally, the People argue that defendant forfeited any challenge to CALCRIM No. 361 by failing to object, and, assuming it was error to give the instruction, there was no prejudice.
As discussed herein, the gang evidence introduced in this case was not limited in relevancy to proving the gang enhancement allegations. (People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran) []; accord, People v. Pineda (2022) 13 Cal.5th 186, 233-234 (Pineda).) To the contrary, the series of events that culminated in Villegas's death involved gang-related behavior by Villegas; gang evidence was relevant to the prosecutor's theory of the motive and intent underlying the crimes; and the four codefendants successfully sought the admission of evidence that Villegas was the aggressor, which necessarily included gang evidence. Following dismissal of the gang enhancements, there was no objection to the gang expert's testimony and no request to strike any portion of her testimony.
For the reasons set forth below, we conclude that defendant's first two claims challenging the gang expert's testimony were not preserved for review. (Evid. Code, § 353.) With respect to Assembly Bill 333, defendant lacks entitlement to any relief based on the amendments to section 186.22 given the absence of any jury finding on the issue and, assuming that section 1109 applies retroactively and that a basis for a claim of error exists on this record, any error was harmless. Finally, assuming it was error to give CALCRIM No. 361, that error, too, was harmless.
Accordingly, we affirm the judgment.
In February 2018, defendant attended a rap concert with a group that included his four cousins, Efrain and Mike, who are brothers, and Reyes and Angela, who are brother and sister. Efrain's and Mike's wives, Crystal and Claudia, and Angela's daughter and friend also attended. Efrain, Crystal, Mike, and Claudia came to the concert together and parked behind the nearby drycleaner where Crystal worked. They met the rest of their group at the theater. The group was seated in three different areas, with Efrain and Crystal in one area, Mike and Claudia in another area, and everyone else in a third area. Efrain, Crystal, Mike, and Claudia were drinking beer that night; and, relevant to witness testimony and the gang expert's opinion, Efrain was wearing a black shirt with "KC" on it, Mike was wearing a white shirt with long sleeves, Reyes was wearing a checkered or plaid shirt, and defendant's hair was in braids.
Nineteen-year-old Kasey Villegas also attended the concert that night with a family group, which included his sister, Vanessa; younger brother, Kristopher; aunt, Jennie; three cousins, Jesus, Julissa and Jeanna; and girlfriend, Maria, who was six months pregnant. Villegas, Vanessa, and Kristopher were drinking beer prior to the concert, and they rode together, with Maria driving.
Concertgoers entering the theater passed through a security checkpoint, which included use of a metal detection wand. Inside the lobby, just after arriving, Villegas's group was involved in an altercation. Jennie testified that Villegas bumped someone, that person got mad, and the two started to fight. After a woman threw a beer bottle at one of Jennie's daughters, Jennie hit the woman. Jennie informed security and did not see that group of people again.
Vanessa, however, testified Villegas was not involved in that altercation. She, Villegas, and Kristopher were walking ahead of their group when Jennie, Jesus, and Jeanna became involved in some sort of altercation in the lobby. Maria also testified Villegas was not involved. She described it as a quick commotion that only involved Jennie.
Subsequently, inside the theater seating area, Villegas, Kristopher, and Jesus were acting rowdy, and Villegas started standing up and yelling "'Varrio.'"[6] A few rows ahead, a man, identified at trial as Efrain, kept turning around and looking at Villegas's group. Jennie and Maria testified that Efrain yelled, "'Eastside,'" and made an "'E'" with his hands, and Vanessa testified he said something like "East Baker" or "Eastside Bakers." In addition, Maria testified that Efrain said something to the effect of, "[T]he Loma is on the East Side." Vanessa did not remember anyone making hand signs and Jennie initially denied Villegas was throwing gang hand signs with his hands. However, Jennie later conceded he was doing so in a video of the altercation, and Maria testified he was throwing a "'V'" for Varrio. Jennie, Vanessa, and Maria knew Villegas to be a Varrio Bakers gang member, although Maria testified that when he was released from custody six months earlier, he told her he was not active anymore.
Jennie denied telling police, "my nephew, dumbass, he's standing yelling Varrio this and Varrio that, then another person two rows up turns and starts saying Eastside." However, she did tell Jesus to shut up and said it was "'stupid,'" after he stood up and engaged in the argument.
Prior to the altercation, Crystal heard someone from two or three rows behind them yelling "'Varrio,'" and then Efrain yelled back, "'Fuck all the gangs'" and "east side." Crystal knew Varrio was a gang, but she had known Efrain since childhood he was not involved in gangs, and he did not have any gang tattoos. She also knew of the Eastside Bakers, and she was surprised and angry that Efrain responded east side to someone calling out Varrio because she knew he could be misunderstood to be claiming the east side as his turf or gang. She said, however, that east side can...
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