People v. Valdez

• Decision Date: 15 October 1997
• Docket Number: No. H014664,H014664
• Citation: 58 Cal.App.4th 494,68 Cal.Rptr.2d 135
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8052, 97 Daily Journal D.A.R. 12,969 The PEOPLE, Plaintiff and Respondent, v. Francisco VALDEZ, Defendant and Appellant.

Page 135

68 Cal.Rptr.2d 135

58 Cal.App.4th 494, 97 Cal. Daily Op. Serv. 8052,

97 Daily Journal D.A.R. 12,969

The PEOPLE, Plaintiff and Respondent, v. Francisco VALDEZ, Defendant and Appellant.

No. H014664.

Court of Appeal, Sixth District, California.

Oct. 15, 1997.

Certified for Partial Publication. ^*

Review Denied Feb. 3, 1998.

Colleen M. Rohan, San Francisco, under appointment by the Court of Appeal, for Defendant/Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald E. Niver, Supervising Deputy Atty. General, David H. Rose, Deputy Atty. General, for Plaintiff/Respondent.

WUNDERLICH, Associate Justice.

I. Statement of the Case

Defendant Francisco Valdez and 10 others were charged with first degree murder in the killing of Osvaldo Mojarro Rios and conspiracy to commit other enumerated offenses. He appeals from a judgment entered after a jury convicted him of the lesser offense of second degree murder and conspiracy and also found true gang enhancement allegations related to these offenses. ¹ On appeal, he claims the court erroneously permitted a gang expert to relate inadmissible hearsay to support his opinion on various subjects. In addition, he claims there is insufficient evidence to support the gang enhancement, the trial court erroneously permitted the prosecution to present witnesses solely to have them refuse to testify in front of the jury, and the court gave a defective instruction defining "reasonable doubt." We affirm the judgment.

II. Factual Background

A. Events on January 27, 1994

On January 27, 1994, at around 2:30 p.m., a caravan of vehicles, including a white Datsun, drove by the residences of Jesus Mesa, Margarito (Mago) and Andres Reyes, and Antonio Gomez on Lotus Street in San Jose. Jesus Mesa heard Antonio yell "Sureno" at the caravan. ² The vehicles returned and stopped. Several Hispanic males emerged and yelled "Norteno" back. At least one had a gun, and another had a knife. The one with the knife broke a house window and slashed the tires of a car. The group then ran back to their cars and drove off.

A short time later, the caravan went to the Washington Elementary School, circled for a while, and then stopped in front. The white Datsun pulled next to Osvaldo Rios's blue car. Members of the caravan got out of their vehicles. Some of them yelled "norte," "fourteen," and gang names, and a group of them ran toward people who had been standing around the school. Meanwhile, defendant got out of the Datsun. He had a gun, which he held at his waist in both hands. He then raised it to eye level, displaying it to others, who began to run.

According to Stephanie Navarette, who was in the passenger seat next to Rios, defendant said "what's up." Rios responded, "What? I don't even know you" and started rolling up his window. Navarette saw a gun and ducked. Defendant then fired several shots at Rios, hitting him in the head and arm. Navarette said defendant had a look of rage on his face. Members of the caravan quickly returned to their cars and sped away. Rios died at the hospital later that night.

B. Statements to Police

Police arrested and interviewed numerous suspects and searched their homes. Steve Gonzales, Mario Abrego, Ramon Montes, Jesus Badillo, John Mendoza, Rafael Gudino, Marlon Mayorga, Mike Ramirez, Manuel Villalvazo, and Richards Villa gave statements to the police. Gonzales, Badillo, Ramirez, Gudino, Mayorga, Abrego, Villa, and Villalvazo indicated they were among a group of people that met at Roosevelt Park and formed a caravan. Montes admitted bringing the murder weapon with him that day. Villa said someone might have mentioned something about a gun while they were at Roosevelt Park. Abrego admitted driving the white Datsun. Mendoza rode in the Datsun.

Gonzales, Badillo, Montes, Abrego, Gudino, Mayorga, Ramirez, and Villalvazo indicated they were all out looking for Surenos to fight. ³ Gonzales referred to them as the "enemy." Badillo accused Surenos of "thrashing" people in the neighborhood. Mendoza was "fed up" with how Surenos treated him and others, noting he had previously been shot. Mayorga also said he had been chased and shot by Surenos. Villalvazo said there had been problems with Surenos.

Gonzales recounted how the caravan went to Lotus Street and stopped at a suspected Sureno house. Several people got out, chased Surenos, broke a window, and left for the west side of town to look for more Surenos. The group congratulated the person who broke the window. Mendoza, Gudino, and Mayorga also acknowledged their presence during the Lotus Street incident. Mendoza, Badillo, Montes, Abrego, and Villalvazo told about other encounters with Surenos on the way to the Washington School. When they arrived, they saw numerous Surenos and got out of their cars to chase them. ⁴ They returned to their cars and left after hearing gun shots.

Police officers testified about statements given by defendant and codefendants Aguilera and Mamone. ⁵ Defendant said he joined the caravan at Roosevelt park, knew someone had brought a gun, and saw it in the white Datsun. He said the group confronted "wetback guys," "scraps" ⁶--i.e., Surenos--around Lotus Street before going to the Washington School.

Defendant admitted shooting Rios but said it was accidental. ⁷ He explained that he got out of the car with the gun but did not personally load it and had no plans to shoot anyone. He did not talk to the victim but heard members of his group say something to him. He said the victim shrugged slightly. He saw the window of the victim's car rolling up, then aimed at the door of Rios's car, squinted or "blacked out," and then heard shots from the gun. He said he did not "mean to shoot him that many times." He knew he did not hit the female passenger because "I just made sure of it, I just aimed mostly for the door."

Defendant admitted being angry that day. He explained that in general "[Surenos] all be fucking with my sister when they go to school and, shit, they jump on my home boys, they're always trying to disrespect ... we ain't got to be doing anything, just walking down the street. They pulled guns, they shot at us before, they shot at me before, they tried to stab me." He also said Surenos had stabbed his brother in Colorado.

Defendant thought the victim was a Sureno because he had encountered the same car and a group of Surenos some days before. Defendant was angry at them because they had been "throwing all kinds of signs to us" and "laughing at us." He was irked because at the Washington School there were more Nortenos and now the Surenos were "claiming nothing."

Defendant said he had associated with East Side Familia (ESF) but had disassociated from them in December 1992. He made it clear he did not want to implicate any of the others, and he later helped police find the murder weapon.

C. Evidence of Gang Membership

Police searched the homes, jail cells, and vehicles of those interviewed and, except for that of codefendant Aguilera, found, among other things, gang-related graffiti such as the number "14," or "XIV," the word "Norteno" or "Norte," and the initials of various Norteno gangs. Some of these people also had Norteno tattoos.

In defendant's bedroom, police found a backpack, on which was inscribed "XIV," "Mr. ESSJ," "Eastside," and "Cisco." They also found undated papers with similar notations as well as "ESF" and a card on a mirror containing "Norte" and "XIV." In a shed behind the house, police found graffiti like that on defendant's backpack.

D. Expert Testimony

Officer Michael Piscitello testified as an expert on gangs in San Jose. (See fn. 2, ante, p. 137.) He traced the origin of today's Hispanic street gangs to prison gangs called the Mexican Mafia and the Nuestra Familia. As noted, gangs are divided into two rival groups: Nortenos and Surenos. The two groups claim different colors and numbers and are in constant conflict for respect and turf. This often escalates from statements and handsigns to physical violence and killings.

Piscitello explained that several years ago there was only one Sureno gang and the rest of the San Jose gangs were Norteno. However, from 1989 on, the number of Sureno gangs increased. He opined that now there are 20 to 30 Norteno gangs and 10 to 15 Sureno gangs. As a result, conflict between them has escalated in certain neighborhoods. For example, the Washington School area was originally Norteno turf but over the years has been taken over by Surenos. Thus, he noted a "rash" of cases emanating from this area during the transition.

Piscitello further explained that historically Norteno gangs often fought with each other. In response to the Sureno killing of a Norteno woman, a large number of Norteno gang members met on Cinco de Mayo in 1993 and agreed not to fight each other and instead to focus their attention on Surenos and reclaiming the city for Nortenos. As a result, a concept of uniting together to fight a common enemy was born. According to Piscitello, this was known as "San Jose or San Jo Familia, San Jose Family." ⁸ Piscitello noted he now gets few Norteno-versus-Norteno cases and most conflicts are between Nortenos and Surenos.

Piscitello described various levels of involvement in street gangs. There are regular and part-time associates, hangers-on, and "wanna-be's"; bona fide members, who have been formally inducted--"jumped in"--by being beaten by members; and the "hard core" leaders of the gang. One can also be a member of one gang and an associate of another. Members can resign and walk away. However, some are reluctant because it involves getting "jumped out," a process that can be much worse than being "jumped in."

Piscitello outlined formal criteria used by the San Jose Police Department to determine whether a person is involved with a gang. A credible claim of gang membership by itself is accepted at face value without...