People v. Saucedo

Decision Date30 July 2021
Docket NumberB302706
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN DAGOBERTO SAUCEDO, Defendant and Appellant.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA430049 James R. Dabney, Judge. Affirmed in part and reversed in part; remanded for further proceedings.

Richard D. Miggins, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

A jury convicted defendant and appellant Christian Dagoberto Saucedo of second degree murder and criminal street gang conspiracy with gang and firearm enhancements. After passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), the trial court reduced the murder conviction to assault with a firearm. Saucedo argues: (1) the trial court's admission of his confession violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and his trial counsel provided ineffective assistance by failing to adequately move to exclude it; (2) the evidence was insufficient to prove the criminal street gang conspiracy charge and the gang enhancement; (3) the prosecutor committed prejudicial misconduct in closing argument; (4) the trial court impermissibly interfered with the jury's deliberations; (5) the cumulative effect of the purported errors requires reversal; (6) a Penal Code section 12022, subdivision (a)(1)[1] firearm enhancement must be stricken because it was not properly pled; (7) the trial court committed sentencing error; (8) the record must be amended to correct various clerical errors; and (9) the trial court's calculation of custody credits was incorrect.

We reverse Saucedo's conviction for criminal street gang conspiracy and the related firearm enhancement and remand for resentencing, correction of the abstract of judgment, and recalculation of custody credits. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
1. Facts

Saucedo, Otoniel Tobar, Kevin Alvarado, and Carlos Ruiz were members of the Mara Salvatrucha criminal street gang (MS-13). They went by the monikers Suspect, Garrobo, Demo, and Fugitivo, respectively. The intersection of Wilshire Boulevard and Western Avenue borders territories claimed by both MS-13 and the rival 18th Street gang. The victim, Bryan Rubio, belonged to the Moteros gang.

a. People's evidence
(i) The murder

On September 21, 2014, at approximately 1:00 a.m., Rubio, along with other persons, was waiting at a bus stop at Wilshire and Western. According to the testimony of six eyewitnesses, considered together, [2] a dark-colored Silverado pickup truck stopped at a red light by the bus stop. Rubio and “some young guys” in the truck exchanged hand gestures. Rubio raised his middle finger in a disrespectful gesture. The truck turned around the corner. Rubio said to the person seated next to him, “Something is about to pop off.”

Two men, identified by other evidence as Alvarado and Saucedo, walked to the bus stop from the direction of the truck. Someone, presumably Rubio, said either “Everything's good, man” or “Is everything good crazy?” Rubio held both hands up at chest height, with his palms out. Alvarado produced a gun, racked it, and fired numerous shots at Rubio, who was backing up, from approximately eight feet away. Saucedo stood approximately four feet away from Alvarado and watched. Rubio fell on top of a woman who was selling tamales, and they both landed on the ground. Alvarado shot Rubio in the head. Saucedo and Alvarado then ran northbound on Western, to where the Silverado was stopped just before Sixth Street. They jumped in the truck, which drove southbound on Western again.

Rubio suffered gunshot wounds to his head and back, and died at the scene.

(ii) The investigation

No weapons were found at the bus stop. An open knife was discovered inside Rubio's pocket, but there was no evidence Rubio had it or another weapon in his hands when he was shot. The revolver used in the shooting was not recovered. None of the eyewitnesses was able to identify the assailants.

Surveillance videos taken from cameras located on Western Avenue showed a dark-colored truck drive southbound on Western at approximately 1:00 a.m. on the night of the shooting, and again at approximately 1:04. a.m. At 1:06 a.m., the video showed Saucedo and Alvarado running northbound on Western. At 1:07 a.m. the truck drove southbound again.

A police car that was in the area of the shooting at approximately 1:00 a.m. was equipped with a license plate recognition (LRS) camera. It recorded a dark-colored Silverado truck travelling on Western at 1:02 a.m. The vehicle's license plate number was traced to Tobar's estranged wife, at Tobar's address in Inglewood. Tobar was identified as a suspect and his cellular telephone was examined pursuant to a warrant. Through examination of his phone records, police identified other suspects, including Saucedo. Both Tobar's and Saucedo's cellular telephones contained numerous photos depicting them with MS-13 graffiti or throwing MS-13 gang signs.

(iii) Saucedo's statements to police

Detectives interviewed Saucedo in November 2014. Saucedo stated that Tobar drove him, Ruiz, Alvarado, and Alvarado's female friend, a woman known as “Blackie, ” to Koreatown in Los Angeles. When stopped at a red light, they observed a man at a bus stop at Wilshire and Western. Ruiz exchanged words with the man and threw an MS-13 gang sign. Blackie, Alvarado, and Ruiz suggested they turn around and beat the man up. The truck circled around and passed the bus stop a second time. Tobar stopped the truck nearby the bus stop.

Blackie gave Saucedo her white sweater and told him to put it on. He did. He also wore a cap to cover his face. Saucedo and Alvarado exited and approached the victim at the bus stop. Alvarado was carrying a revolver. Alvarado asked if Rubio was from the 18th Street gang. Rubio said “Eighteen, ” Alvarado said “MS, ” and Alvarado fired multiple shots at Rubio. Saucedo claimed that as soon as he saw the gun or heard the first shot he ran back to the waiting truck. Saucedo knew that Tobar had a gun in the truck under the front passenger seat. He did not know that Alvarado had it on his person when they approached the bus stop. Saucedo believed they were just going to fight the victim, not kill him; there were too many people at the bus stop.

After Alvarado returned to the truck, Tobar drove the group around the block again and Saucedo saw the victim on the ground. Alvarado said he shot Rubio because he thought Rubio was about to pull out a weapon. Saucedo did not see the victim holding a knife or other weapon.

The group then went to the beach and, either that night or the next day, took photographs of persons in the group throwing gang signs.

(iv) Gang evidence

Los Angeles Police Department Officer Daniel Jara testified as the People's gang expert, as follows. MS-13 is one of the largest gangs in the world, and one of the biggest gangs in the United States. MS-13 started in Los Angeles in the 1980's, and then spread throughout the country and into Central America. In Los Angeles, the gang has approximately 700 members or affiliates. Throughout the world, the gang has numerous subsets or cliques. In Los Angeles, over 10 such cliques exist, differentiated by area. A clique usually takes the name of a major street in the neighborhood, often followed by “Locos.” One of MS-13's main gang rivals in Los Angeles is the 18th Street gang. Western and Wilshire, where the shooting occurred, sits at the border shared by the two gangs, and is a “hot spot.”

MS-13 identifies itself to the community through hand signs, tattoos, and graffiti. It uses a hand sign known as “the horns, ” as well as hand signs resembling “M” and “S.” Tattoos displayed by MS-13 gang members may include these symbols. An MS-13 gang member is not allowed to obtain gang tattoos until he has done “something for the gang.”

The MS-13 gang's primary activity is extortion, as well as firearm possession, robbery, narcotics sales, and vandalism. Gang members are required to “put[ ] in work, ” i.e. commit crimes, for the benefit of the gang. Jara testified regarding two “predicate” crimes committed by MS-13 members.[3] In the gang culture, one's reputation is of paramount importance.

When givena hypothetical based on the evidence in the case, Jara opined that such a shooting would be committed for the benefit of and in association with the gang.

Before the shooting, Saucedo had an “M” and an “S” on his fingers and “Dementes FLS Locos” on his hand. After the shooting, Saucedo obtained additional MS-13 tattoos, including an “M” and an “S” on his chin, and an “M” on one leg and an “S” on the other. On his head he had devil horns, “Fulton, ” and “MS”; because they were covered by his hair, it was unclear whether he got those tattoos before or after the shooting. A gang member who gets additional gang tattoos after committing a crime indicates he is “proud about it” and is loyal to the gang.

b. Defense evidence

Saucedo presented the testimony of a gang expert, who testified as follows. MS-13, like the Crips, Bloods, and Sureños, is an umbrella group with numerous distinct subsets that have their own leadership, territory, and rivalries. Different MS-13 subgroups may have rivalries between themselves. However, MS-13 qualifies as a gang within the meaning of section 186.22.

Western and Wilshire is not a “battlefront” territory of either MS-13 or the 18th Street gang;...

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