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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. FRANK REYES, Defendant and Appellant.

2d Crim. No. B219564

Decided: March 24, 2011


Frank Reyes appeals the judgment following his conviction for two counts of street terrorism (Pen.Code, § 186.22, subd. (a)),1 commercial burglary (§ 459), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).   The jury found true an allegation that the burglary and assault were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)   The jury also found true an allegation that the street terrorism occurred when Reyes was on bail. (§ 12022.1, subd. (b).)  Reyes was sentenced to six years in prison consisting of a two-year low term for the assault, two years for the gang enhancement, and two years for the on-bail enhancement.   Sentences for the other offenses were stayed pursuant to section 654.

Reyes contends the trial court erred by refusing to require the prosecution to accept a stipulation that Cabrillo Village was a criminal street gang, admitting cumulative evidence of predicate offenses, denying a request for in camera review of the assault victim's medical records, and excluding the defense gang expert from the courtroom during testimony by the prosecution expert.   We affirm.


In November 2006, Reyes went into a gas station convenience store with another man.   Reyes and the other man were both members of the “Cabrillo Village” criminal street gang.   Reyes hid beer from the cooler under his coat and left without paying for it.   He returned to the store two more times to steal more beer.   The store clerk did not report the incident, but the manager discovered the thefts the next day while watching a videotape of the store's surveillance camera.   The clerk later identified Reyes, and a police officer recognized Reyes from the videotape.

Approximately two years later, 31-year-old Javier Solis was at a bonfire at a soccer field in the Cabrillo Village housing project.2  Solis lived in Cabrillo Village, but was not a gang member.   While at the bonfire, Solis was approached by Reyes and other Cabrillo Village gang members.   Solis recognized Reyes.   The gang members asked Solis if he had “ratted out” another gang member.   Although Solis denied the accusation, Reyes and other gang members “beat him up.”   Solis was bloodied and bruised and his nose was broken.   Solis testified that Reyes had a six-inch knife, but Solis did not suffer a knife wound in the beating and did not tell the police about the knife.

Solis had been diagnosed with paranoid schizophrenia when he was 19, and was taking medications to stabilize his moods at the time of the assault.   He took his medicine the day before the beating which occurred at approximately 1:00 a.m. the following day.   He admitted drinking beer at the bonfire despite medical advice not to drink while on his medication.   He told police he had had too much to drink, one officer testified that he seemed to be intoxicated, and a defense expert testified that the police and hospital emergency room reports indicated he was intoxicated.   In addition, Solis's statements to the police and a defense investigator regarding the number of assailants and the details of the assault were sometimes inconsistent with his trial testimony.

Gang experts testified for both the prosecution and defense.   The prosecution expert testified regarding various aspects of gang culture and behavior, gang activities by Reyes, and criminal acts committed by other Cabrillo Village gang members.   He testified that members advance in the gang by committing crimes, and that Cabrillo Village gang members were expected to commit crimes.   He also testified that evidence showed that Reyes was an active member of the gang, and that the charged offenses were all committed for the benefit of the gang.

The defense gang expert testified that the taking of the beer did not appear gang related because a gang-motivated crime was likely to have been committed more openly so as to create fear.   He also testified that, as a 22-year-old gang member, Reyes no longer had to prove himself by committing crimes and that his crimes were more likely for personal gain.   Based on a hypothetical, he opined that the Solis assault was not for the benefit of the gang.

The defense also called an expert in forensic psychology.   Consistent with Solis's own testimony, the expert concluded that Solis suffered from paranoid schizophrenia.   He testified that schizophrenia affects a person's cognitive abilities including the ability to remember and make judgments, and that paranoid schizophrenia is characterized by hallucinations and delusions.   He opined that Solis was intoxicated at the time of the assault and that this condition would have contributed to memory and cognitive problems.


No Error Regarding Stipulation

Reyes contends the trial court erred by not requiring the prosecution to accept a stipulation that Cabrillo Village is a criminal street gang.   We disagree.

As a general rule, the prosecution cannot be compelled to accept a stipulation “if the effect would be to deprive the state's case of its persuasiveness and forcefulness.”  (People v. Edelbacher (1989) 47 Cal.3d 983, 1007;  see also People v. Sakarias (2000) 22 Cal.4th 596, 629;  People v. Arias (1996) 13 Cal.4th 92, 131.)   The United States Supreme Court recognizes the same rule that “a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.”  (Old Chief v. United States (1997) 519 U.S. 172, 186-187.)   As a decision relating to admissibility of evidence, a trial court's ruling on whether to force acceptance of a stipulation is reviewed for abuse of discretion and will not be overturned unless it is arbitrary or capricious.   (People v. Waidla (2000) 22 Cal.4th 690, 724.)

Reyes filed a motion to require the prosecution to accept a stipulation that the Cabrillo Village gang qualified as a criminal street gang within the meaning of section 186.22.   The purpose of the stipulation was to avoid admission of predicate offense evidence otherwise required to establish criminal street gang status. (§ 186.22, subd. (e).)  Reyes did not offer to stipulate to active membership in the gang or any essential element of the section 186.22, subdivision (a) offense, or section 186.22, subdivision (b) gang enhancement.   The trial court denied the motion.   We conclude there was no abuse of discretion.

The stipulation offered by Reyes would have eliminated one segment of gang evidence the defense preferred not to be placed before the jury, but would not have relieved the prosecution of its burden to prove every element of both the gang offense and gang enhancement.   The gang offenses required proof beyond a reasonable doubt that Reyes actively participated in a criminal street gang, had knowledge that its members engaged in a pattern of criminal gang activity, and willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (§ 186.22, subd. (a);  see People v. Lamas (2007) 42 Cal.4th 516, 523.)   The gang enhancement required the People to prove that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang with the “specific intent to promote, further, or assist” criminal conduct by gang members. (§ 186.22, subd. (b);  see People v. Williams (2009) 170 Cal.App.4th 587, 639.)

Although the prosecution would have been able to offer evidence of all the elements of the gang offense and enhancements even with the stipulation, the stipulation might have impeded the prosecution's ability to present its case as forcefully as the evidence warranted.   The prosecution should not be forced to present its case in a version “sanitized” by a narrow and tactically-motivated stipulation.  (See People v. Pride (1992) 3 Cal.4th 195, 243.)

Reyes argues that evidence of the predicate offenses was highly inflammatory because there was no evidence he participated in any of the predicate offenses, and two were for the same type of offenses that were charged against him.   He concedes, however, that no published case has required the prosecution to accept a stipulation regarding proof of predicate acts in a case necessarily involving the admission of other gang evidence.   Although gang evidence is potentially inflammatory (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224), this is not a case where acceptance of the stipulation would have significantly reduced the amount of undisputedly-admissible gang evidence or reduced the impact of such evidence on the jury.  (See People v. Wash (1993) 6 Cal.4th 215, 246;  People v. Bonin (1989) 47 Cal.3d 808, 849.)

We also reject Reyes's claim that refusal to accept the stipulation violated his constitutional right to due process for the same reasons.   The trial court's ruling related to the admissibility of evidence, and the application of state evidentiary law rarely implicates a defendant's constitutional rights.   (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)   There was no error in the trial court's admission of evidence, and Reyes provides no separate argument for his constitutional claims.  (Ibid.)

No Error in Admission of Predicate Offense Evidence

Reyes contends the trial court abused its discretion by admitting excessive and cumulative evidence of five predicate offenses, other gang-related crimes, and references to the “Mexican Mafia.”   He argues that the trial court's failure to place limits on the volume and nature of the inflammatory evidence was prejudicial.   We disagree.

Although he objected to admission of the predicate offense evidence, Reyes did not object to the evidence of other gang-related crimes or references to the Mexican Mafia.   As a result, he has forfeited his claim as to that evidence.   (People v. Hinton (2006) 37 Cal.4th 839, 893, fn. 19;  People v. Catlin (2001) 26 Cal.4th 81, 122-123.)

As to the predicate offense evidence, we first conclude that all of the challenged evidence was relevant to prove the prosecution's case.   The burden of proving the gang enhancement beyond a reasonable doubt requires, in part, proof of a “pattern of criminal gang activity.” (§ 186.22, subds.(e) & (f);  People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)   The prosecution proves a pattern of criminal gang activity by showing the commission or attempted commission of, or conviction for “two or more” enumerated predicate offenses “committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e);  People v. Loeun (1997) 17 Cal.4th 1, 4.) The prosecution must also prove that commission of crimes is one of the “primary activities” of the gang. (§ 186.22, subd. (f).)  Proof that commission of the enumerated crimes is a primary activity of the gang generally consists of evidence that the group's members consistently and repeatedly commit crimes enumerated in the gang statute.  (Sengpadychith, at p. 324.)

Although relevant, evidence of an excessive number of predicate offenses may be excluded as cumulative under Evidence Code section 352 if the prejudicial effect of admission substantially outweighs the probative value of the evidence.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050;  People v. Albarran, supra, 149 Cal.App.4th at pp. 223-224.)  “Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term ‘cumulative’ indeed has a substantive meaning, and the application of the term must be reasonable and practical.”  (People v. Williams, supra, 170 Cal.App.4th at p. 611.)   A trial court's ruling on the admission of gang testimony is reviewed for abuse of discretion and will be upheld unless it was arbitrary or capricious.  (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194.)

Here, there was no abuse of discretion.   The evidence concerning predicate offenses was not more inflammatory than the testimony about the conduct of Reyes and his fellow gang members during the assault of Solis.   In addition, the trial court excluded evidence of two predicate offenses offered pursuant to Evidence Code section 352, and the admitted testimony did not necessitate undue consumption of time.

Reyes relies on People v. Leon (2008) 161 Cal.App.4th 149, and People v. Williams, supra, 170 Cal.App.4th 587.   In Leon, the Court of Appeal concluded that the trial court abused its discretion by admitting evidence of a prior juvenile adjudication to establish that the defendant was a member of a criminal street gang.   The court stated that there was other overwhelming evidence to prove the appellant was a member of a criminal street gang and that the issue was not subject to reasonable dispute.  (Leon, at p. 169.)   In Williams, the court found abuse of discretion in the admission of evidence of at least eight crimes committed by gang members and evidence of dozens of police-gang contacts.  (Williams, at pp. 600-602, 610.)   The court stated that the sheer volume of evidence extended the trial, overly burdened the judicial system and jury, and resulted in endless discussions by the court and counsel that amounted to a “virtual street brawl.”  (Id. at pp. 610-611.)

Leon and Williams are readily distinguishable because the challenged evidence in those cases was more extensive and, in the case of Leon, more remote from the contested issues than the predicate offense evidence in the instant case.   Here, the evidence did not consume significant court time and was probative to prove all elements of the section 186.22, subdivision (a) offense and the gang enhancement.

In addition, both the Leon and Williams courts concluded that the gang evidence, although cumulative, constituted harmless error.  (People v. Leon, supra, 161 Cal.App.4th at pp. 169-170;  People v. Williams, supra, 170 Cal.App.4th at pp. 612-613.)   Because of the substantial evidence the defendant committed the crimes and did so in association with his gang and to assist other criminal conduct by the gang members, it was not reasonably probable the defendant would have achieved a more favorable result had the evidence been excluded.  (Ibid.) Similarly, even if the predicate offense evidence in the instant case were to be considered excessive, any error in its admission would have been harmless.

Again, Reyes claims the admission of the evidence violated his constitutional right to due process and, again, we reject the claim because evidentiary rulings rarely implicate a defendant's constitutional rights.  (See People v. Hovarter,

supra, 44 Cal.4th at p. 1010.)   Unlike in People v. Albarran, supra, 149 Cal.App.4th at page 232, relied on by Reyes, any erroneously admitted evidence would not “present[ ] one of those rare and unusual occasions” where the error was of federal constitutional dimension.

No Cumulative Prejudice

Reyes also contends that the cumulative effect of the claimed errors in admission of gang evidence was prejudicial.  (See People v. Hill (1998) 17 Cal.4th 800, 844.)   As we discussed above, there were no evidentiary errors by the trial court and any arguable error was not prejudicial.

No Prejudicial Error Regarding in Camera Review of Medical Records

Reyes contends that the trial court erred by denying his request during trial for an in camera review of victim Solis's psychiatric medical records.   We conclude that any error by the trial court was harmless.

Medical records of a nonparty witness are protected from discovery by the patient-psychotherapist privilege and the person's right to privacy.   (Evid.Code, § 1014;  Cal. Const., art.   I, § 1.) Under certain circumstances, however, the privilege and right to privacy conflict with a criminal defendant's constitutional right to confrontation and cross-examination.  (Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 166;  Davis v. Alaska (1974) 415 U.S. 308.)  “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon ․ to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve.  [Citation.]”  (People v. Hammon (1997) 15 Cal.4th 1117, 1127.)

The balancing process may be carried out during trial by an in camera review of the nonparty witness's medical records after which the trial court will determine whether a defendant is entitled to disclosure of all or any portion of the information.  (People v. Reber (1986) 177 Cal.App.3d 523, 532, limited on other grounds in People v.

Hammon, supra, 15 Cal.4th at pp. 1123, 1127-1128.) 3  In order to obtain an in camera review, a criminal defendant first must make a showing of good cause that the defendant's right of confrontation requires disclosure.   (Hammon, at pp. 1127-1128;  Reber, at pp. 531-532.)   A defendant cannot require the trial court to examine the confidential records of a nonparty witness without first making a “plausible showing” that the requested information “contains material evidence.”  (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 58, fn. 15.)

Here, Reyes made a sufficient showing of good cause to require an in camera review of Solis's medical records.   His motion was based on testimony by Solis that Reyes had a knife during the assault.   The evidence regarding the possession of a knife by Reyes was disputed and there was evidence of discrepancies between the trial testimony of Solis and his statements to the police and defense investigator.   An in camera review of Solis's medical records by the trial court might have revealed information relevant to his credibility, perception, or recollection of events.

We conclude, however, that any error in failing to conduct an in camera review was harmless under either the state reasonable probability standard or the federal harmless beyond a reasonable doubt standard.  (People v. Watson (1956) 46 Cal.2d 818, 836;  Chapman v. California (1967) 386 U.S. 18, 24;  see also People v. Reber, supra, 177 Cal.App.3d at p. 532.)   The trial court's error was its failure to weigh and determine the need for access to information that might, but was unlikely to, have been helpful to the defense case.  (See Reber, at p. 533.)   The defense had ample opportunity to, and did, impeach the credibility of Solis based on his mental condition.   Also, as the trial court stated in denying the motion, evidence of Solis's paranoid schizophrenia and his alcohol consumption while on medication were already in evidence, and the defense could and did present expert testimony regarding the effect of his mental condition on his

credibility. The defense called a forensic psychologist who testified that paranoid schizophrenia affects cognitive abilities including memory and involves hallucinations and delusions.   There is no basis to conclude that disclosure of confidential medical records was necessary to protect Reyes's right to confrontation and cross-examination.  (See People v. Hammon, supra, 15 Cal.4th at p. 1119;  People v. Pack (1988) 201 Cal.App.3d 679, 686.)

No Error in Exclusion of Expert Witness

Reyes contends the trial court erred by refusing to allow his gang expert to remain in the courtroom during the testimony of the prosecution's gang expert.   We disagree.

Evidence Code section 777 provides that “the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.”  (Italics added.)   It is settled law that the exclusion of witnesses from the courtroom, including expert witnesses, is a matter within the trial court's discretion.  (See People v. Valdez (1986) 177 Cal.App.3d 680, 687.)   In exercising its discretion, the trial court may exclude certain witnesses but permit other witnesses to remain.  (People v. Carella (1961) 191 Cal.App.2d 115, 141-142.)   As stated in Valdez, the purpose of excluding witnesses is “to prevent tailored testimony and aid in the detection of less than candid testimony “ (Valdez, at p. 687.)

At the request of Reyes, the trial court allowed the defense forensic psychologist to be present during the testimony of victim Solis, but refused to allow the defense gang expert to remain in the courtroom during the testimony of the prosecution's gang expert.   The court expressed concern that the defense expert would respond directly to particular testimony by the prosecution expert, compelling the prosecution to recall its expert in rebuttal and, potentially, causing further attempts by the experts to respond to each other.   Moreover, there was no claim that the experts did not have the same reports

and other relevant materials on which to form their opinions.


We concur:

Superior Court County of Ventura

Lisa M.J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.


FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. Cabrillo Village is the name of a housing project as well as the name of Reyes's gang..  FN2. Cabrillo Village is the name of a housing project as well as the name of Reyes's gang.

FN3. In Hammon, at pages 1127-1128, the court held that the in camera review procedure is not available during the pretrial stage of the proceedings, but Reyes made his request during trial..  FN3. In Hammon, at pages 1127-1128, the court held that the in camera review procedure is not available during the pretrial stage of the proceedings, but Reyes made his request during trial.

YEGAN, Acting P.J. COFFEE, J. Jeff Bennett, Judge