The People v. Gonzalez
| Decision Date | 07 February 2011 |
| Docket Number | No. B215193,No. BA263663,B215193,BA263663 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER A. GONZALEZ, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Alexander A. Gonzalez appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189)1 and attempted willful, deliberate and premeditated murder (§§ 187/189/664). The jury found true special circumstance allegations that Gonzalez committed the offenses by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang as an active participant in the gang. (§ 190.2, subd. (a)(22).) The jury also found true allegations of various firearm enhancements (§ 12022.53, subds. (b), (c) & (d)), and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). For the special circumstance murder, Gonzalez was sentenced to life without possibility of parole coupled with a 15-year period of parole ineligibility (§ 186.22, subd. (b)(5)), plus 25 years to life for the firearmenhancement (§ 12022.53, subd. (d)). For the attempted murder, Gonzalez received a concurrent sentence of life with the possibility of parole coupled with a 15-year period of parole ineligibility (§ 186.22, subd. (b)(5)), plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)).
Gonzalez claims evidentiary error, instructional error, and error in imposing the active gang participant special circumstance and the gang enhancement. He also claims ineffective assistance of counsel, other sentencing errors, and cumulative error. We will correct an error in computing presentence custody credit. Otherwise, we affirm.
FACTS
During the afternoon of April 9, 2004, Reyna Perez drove herself and Abraham Soto to a Starbucks coffee shop. Perez was 16 years old and Soto was 16 or 17. Neither Soto nor Perez were members of, or affiliated with, a criminal street gang. Soto was wearing a blue Dodger baseball cap.
When driving back to the Perez home after their purchases, Perez turned into an alley. Gonzalez, who was driving a black GMC Suburban SUV, was in front of her in the alley. Gonzalez stopped near a Laundromat where a short bald Hispanic with gang tattoos walked up to the SUV and began talking to Gonzalez. After waiting a few minutes, Reyna Perez drove around Gonzalez and turned onto a public street. Gonzalez followed and pulled up alongside the passenger side of Reyna Perez's car. Perez saw that Gonzalez was wearing a blue Dodger baseball cap and was alone in the SUV. Gonzalez asked Soto, "Where are you from?"
Perez became frightened and drove away quickly because she believed Gonzalez was asking Soto to state his gang affiliation. She drove home at a high speed with Gonzalez in pursuit, and stopped in the middle of the street near her house. Gonzalez crashed into the passenger side door of the Perez car as Soto got out, pinning Soto between the two vehicles. Gonzalez repeatedly asked Soto, "Where are you from?" and began shooting. Perez saw one bullet strike Soto in the head.2 After three shots, Perez dove out of her car onto the ground. Two more shots were fired before Gonzalez drove away.
Reyna Perez's mother Dessy Perez was waiting outside the house for Reyna and Soto to return. Dessy Perez saw Reyna approach in her car and stop near where Dessy was standing. She saw Gonzalez drive up in his black SUV, and crash into Reyna's car, and fire his gun. She heard Gonzalez repeatedly yell, "Where you from, bitch?" Dessy Perez yelled at Gonzalez who pointed the gun at her, and pulled the trigger. She heard a "click" sound but no bullet fired. Dessy Perez tried to follow the black SUV but lost sight of the vehicle on the freeway.
After responding to the scene, police detective Vincent Carreon went to the Laundromat to search for the man who talked to Gonzalez shortly before the shooting. He located the man who was named Juan Nol. Carreon interviewed Nol and relayed the information to Detective James Yoshida. In an interview with Yoshida, Nol identified a photograph of Gonzalez as the man he talked to outside the Laundromat.
Yoshida created a six-pack photographic lineup that included the photograph of Gonzalez. When shown the six-pack, Reyna and Dessy Perez both identified Gonzalez as the shooter. They repeated their identification at trial.
Detective Yoshida found a loaded ammunition belt, another bullet, and keys to the black Suburban SUV in Gonzalez's apartment. The SUV was parked in the underground parking lot of the apartment complex. Another bullet, a blue Dodger baseball cap, and Gonzalez's fingerprints were found in the SUV. A forensic expert testified that Gonzalez could not be excluded as a contributor to a mix of DNA found in the SUV and on the baseball cap. The police also found paint from Reyna Perez's car on the outside of the SUV.
Footage from a surveillance camera showed the black Suburban SUV entering the parking garage shortly after the shooting. Although the images were fuzzy, the camera also showed two men get out of the car and walk towards Gonzalez's apartment. The registered owner of the SUV, Jim Alvarez, had asked Gonzalez to take care of the vehicle while Alvarez was in the hospital.
Gonzalez was arrested four months later in August 2004. He had fled to Mexico and was arrested at the Mexican border when he attempted to reenter the United States.
Also in August 2004, Eduardo Borges found a loaded gun on the roof of his apartment building. It was a.38-caliber chrome Ruger revolver. The location of the gun indicated that it had been thrown onto the roof. Diana Borges, the daughter of Eduardo Borges, dated Gonzalez for several months in 2003 and testified that Gonzalez had Smith & Wesson and Ruger revolvers while they were dating, and that the gun found on the roof looked like one of those. Gonzalez telephoned Diana Borges the evening of the day she reported the revolver to the police and told her: Borges did not answer several calls from Gonzalez in the subsequent weeks because she was frightened.
Officer Valentin Reyes testified as the prosecution gang expert. He testified that Gonzalez was an active member of the Harpy's criminal street gang at the time of the murder, and that the murder occurred in territory claimed by the Harpys. Officer Reyes also testified that, in his opinion, the murder of Soto was gang related and its purpose was to benefit the Harpys gang.
Gonzalez testified and denied killing Soto, denied following Reyna Perez and Soto to Perez's home, denied talking to Juan Nol at the Laundromat, denied being in the alley near the Laundromat, and denied ever owning a gun or threatening Diana Borges. He also denied being one of the men seen on the surveillance tape from the underground garage of his apartment building.
Gonzalez testified that on the day of the murder he had loaned the black Suburban SUV to an Hispanic man of the same general description as himself and who was wearing a Dodger cap. Gonzalez refused to identify the man out of fear of endangering himself and his family. Gonzalez testified that the day after the murder he fled to Mexico because the police were looking for him, and he was worried because he had been wrongly accused of another crime the prior year.
DISCUSSION
Testimony Regarding Nol Interviews Not Prejudicial Error
Gonzalez contends the trial court erroneously admitted hearsay evidence identifying him as the driver of the black SUV at the time it stopped near a Laundromat. He argues that testimony by Detectives Carreon and Yoshida revealed hearsay statements made by Juan Nol. We agree, but the error was harmless.
Hearsay is evidence of an out-of-court statement by a non-testifying witness offered for its truth, and is inadmissible unless it falls within a recognized exception to the hearsay rule. (People v. Thornton (2007) 41 Cal.4th 391, 429; Evid. Code, § 1200, subd. (a).) Evidence of an out-of-court statement offered to prove the truth of a matter implied by the statement is also hearsay. (People v. Pic'l (1981) 114 Cal.App.3d 824, 885, disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498; see also People v. Garcia (2008) 168 Cal.App.4th 261, 289.) Where the evidence is offered to prove a fact which is not expressly included in the statement, it is hearsay if "the truth of the implied statement is a necessary part of the inferential reasoning process." (People v. Morgan (2005) 125 Cal.App.4th 935, 943.)
Juan Nol identified Gonzalez as the person he talked to in front of the Laundromat during interviews by Detectives Carreon and Yoshida. Nol, who was then in prison, was brought to the trial to confirm his identification, but refused to testify even after being held in contempt. The prosecution responded by calling Carreon and Yoshida to testify about their interviews with Nol. The trial court overruled a defense hearsay objection after receiving assurances from the prosecutor that he would not ask the detectives to disclose any statements made by Nol.
Detective Carreon testified that he interviewed Nol, and that Nol answered his questions. Carreon did not identify Gonzalez by name, and the answers to his questions were not revealed. In relevant part, testimony concerning the interview proceeded as follows:
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