The People v. Padilla
| Decision Date | 01 November 2010 |
| Docket Number | No. DF008898A,F056829,DF008898A |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO PADILLA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.
Mark Shenfield, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leanne L. LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
On September 23, 2008, appellant Francisco Padilla was convicted by a jury of second degree robbery committed for the benefit of or in association with a criminalstreet gang (Pen. Code, 1 §§ 186.22, subd. (b)(1), 212.5, subd. (c); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). His motion for a new trial was denied. On January 6, 2009, imposition of sentence was suspended, and appellant was placed on probation for five years on condition, inter alia, that he serve one year in jail, pay various fees, fines, and restitution, and not associate with any persons known to him to be criminal street gang members. Appellant filed a notice of appeal the same day.
On May 5, 2009, appellant was arraigned on violation of probation. On June 18, 2009, following a contested hearing, probation was revoked for violation of the gang-association provision. On August 6, 2009, appellant was sentenced to prison for 12 years, calculated as the lower term of two years for the robbery plus 10 years for the section 186.22, subdivision (b)(1) enhancement, and was ordered to pay various fees and fines. Insofar as the record shows, no separate notice of appeal was filed.
Appellant now attacks his convictions upon a number of grounds and also contends he should be resentenced. For the reasons that follow, we will affirm the convictions, but remand the matter for resentencing.
At around 7:00 p.m. on April 10, 2008, 16-year-old Edward S., his younger sister, and his 10-year-old cousin, Angel, were riding their bicycles and scooters home from Morningside Park in Delano, where the younger children had been playing. Edward's bicycle was red and he had spent around $1,500 on it over the course of several years.
The youngsters were headed south on Browning when a green car passed them. The car contained three males and two females. Some of the passengers kept looking back as they passed. When the car was about a hundred feet away, it made a U-turn and pulled up next to Edward's group. The front and rear passengers got out, and the driver stood by the door. The passengers told Edward to get off his bicycle. Edward said he was not a gang member, but they said they did not care. The front passenger, whom Edward identified at trial as appellant, stepped up to Edward and pushed him off the bicycle. This caused Edward to trip over his sister's bicycle, which made the little girl fall. The back passenger then grabbed Edward's bicycle and threw it in the trunk of the car.
Edward knew the people in the car were gang members, because one of them called him "Ese." As they were leaving, they said, "remember it is Southside Delano" and "that's right, remember Southside Delano." During his freshman year in high school, Edward "hung out" with a group of Nortenos, but he was not a part of anything to do with gangs on the day of the robbery.
Edward's parents pulled up about 15 or 20 seconds after the other vehicle left. They arrived so quickly because, when Edward saw the car make a U-turn, he telephoned them and said he thought he was going to "get jumped." As a result, his mother called the police. When she and her husband arrived at Edward's location, Edward was crying and upset. Edward and his father tried unsuccessfully to locate the other car, then went home.
When Edward arrived home, police officers were there. Edward described the front passenger as being 17 or 18 years old, a little taller than Edward's height of about five feet six inches, 150 to 160 pounds, Mexican, with short dark hair, clean-cut and clean-shaven, and wearing a solid white T-shirt with dark blue or black pants. At trial, Edward testified he did not remember any facial hair; the robber did not have a goatee. Edward described the back passenger to police as Mexican, about 15 years old, skinny, and shorter than Edward. Edward also described his clothes. Officer Wilson obtained these descriptions within about 15 minutes of the incident.
After the officers left, Edward's mother had the three children look through the yearbook for Delano High School, which Edward and his older brother attended. Edward looked at all the photographs. Angel was with him while he was doing this. When Edward did not see anyone that he recognized from the incident, his mother contacted some family members, and her nephew brought over his girlfriend's yearbook from Cesar Chavez High School. Edward again looked through all of the pictures. His younger sister and Angel were with him. When Edward reached the sophomores, he recognized appellant's photograph. He was 100 percent certain it was the person who pushed him off his bicycle, and he told his mother. Angel saw Edward pick out appellant's photograph. Angel and Edward's little sister both looked at the picture.
After Edward saw the photograph in the yearbook, he contacted Officer Wilson, who returned to the house. This was a couple of hours after the robbery. On April 11, Edward was shown a group of photographs by Officer Wilson. Edward identified appellant's photograph.
Angel recalled one of the males in the car pushing Edward and saying "something Ese" or something like that. When Angel spoke to Officer Wilson right after the robbery, he said he could not identify anyone.3 Angel looked in the yearbooks. At first he testified that he did not see anyone he recognized; then he testified that he did recognize someone, and that it was the same person who was in the photographs shown him by the officer. This was appellant. Angel did not really look at him at the time of the robbery, because he left to get help. He saw appellant's face "[a] little bit" when appellant got outof the car, enough to recognize him "a little bit" when Officer Wilson showed him some pictures the next day. Angel remembered the dimple.4 Appellant was the person who got out of the back seat of the car. He was wearing a shirt with black and white stripes over a white T-shirt. He had short, sort of black hair. Angel did not remember whether he had a goatee or mustache. He did not have a beard.
Officer Wilson contacted and arrested appellant on April 11, a few hours after the incident. Appellant was wearing a blue belt with a silver buckle with an S inlaid on the buckle. He did not have what Wilson considered to be a goatee.5 Wilson searched appellant's house. He did not find anything connected to a stolen bicycle. He did not recall finding anything gang-related.
The parties stipulated that Surenos are a criminal street gang. Delano Police Detective Nicholson, who testified as an expert on gangs, explained that Surenos and Nortenos are longtime rivals. Delano is predominantly in Northern gang territory, but there are pockets of Surenos in the city. Surenos identify with blue and Nortenos with red.
Nicholson had never come into personal contact with appellant, but reviewed police reports concerning appellant's past history and the present case, police reports and booking photographs of people in whose presence appellant had been during police contacts, field investigation cards, and photographs. Based on this information and his training and experience, Nicholson formed the opinion that on April 10, 2008, appellant was a member of the Sureno criminal street gang. When asked a hypothetical question based on the facts of this case as shown by the prosecution's evidence, Nicholson opinedthat the crime was committed for the benefit of the Sureno gang. Nicholson explained that the crime was committed in a public place where the victims and other people were present. As the suspects were leaving, they shouted, "'Delano Southside, '" thus portraying to the public that Delano Southside is a gang that should not be "mess[ed] with." This raises the status of the gang and also instills fear into the community. At the same time, it shows the suspected rival gang member that Delano Southside is not to be messed with. It could also benefit the gang by preventing citizens of the surrounding area from calling the police or testifying against the suspects, because the community has seen the level of violence that the gang is capable of, without trying to be discreet, by committing the crime in broad daylight. The notoriety the gang members gain from committing crimes and, further, from committing a crime against a person riding a bicycle that is painted a rival gang's color, raises the status of the gang members within the community, within the gang, and with rival gang members. The reason they shouted "'Delano Southside'" was to promote the gang, the same way an advertisement would promote a business.
Dr. Robert Shomer, an expert on eyewitness identification, testified that scientific research has shown eyewitness identification to be the least reliable means of identification and the largest source of erroneous convictions. Overall, it works "at about like the level of flipping a coin or less."
Shomer explained that many factors are involved in the accuracy of eyewitness identification....
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