THE PEOPLE v. JOEL AGUILAR

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOEL AGUILAR, Defendant and Appellant.

B225759

Decided: January 20, 2012

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Joel Aguilar appeals from the judgment entered following his conviction by jury of first degree murder (Pen.Code, § 187) with findings a principal personally and intentionally used a firearm (former Pen.Code, § 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (former Pen.Code, § 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing great bodily injury and death (former Pen.Code, § 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)).  The court sentenced appellant to prison for 50 years to life.   We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on September 19, 2005, Petey Pickett lived in an apartment building located at Sixth and Alvarado.   Pickett had seen appellant frequenting the building prior to September 19, 2005.   On September 19, 2005, Pickett was outside the building.   Appellant approached and the two conversed about their cell phones.   On September 20, 2005, appellant came to Pickett's apartment and the two conversed again about their cell phones.

About 11:00 p.m. on September 20, 2005, James Pardue (the decedent), Pickett, and Cedric Caine left Pickett's apartment to escort Pardue to a bus stop.   Pardue was an African–American.   Pardue and Caine were Pickett's uncles.   Pardue reentered the building to get a jacket while Pickett and Caine waited outside.   Pickett saw a group of about eight persons, including appellant, congregating on nearby stairs.   Pickett recognized everyone in the group because the group was there daily.   The group was drinking beer and smoking.   Pickett was smoking a marijuana cigarette, a girl among the group asked if she and appellant could smoke the cigarette, but Pickett indicated they could not.

Pardue exited the building.   Appellant asked Pardue where Pardue was from.   Pickett knew appellant was a member of the 18th Street gang.   Pickett told police that appellant had the numeral 18 tattooed on appellant's neck.1  Appellant asked Pardue, “ ‘What that 18th Street like?’  “ (Sic.) Pardue laughed and walked away.   Pardue did not claim a gang.   Pardue walked between Pickett and Caine as the latter two began escorting Pardue to the bus stop.

About nine gunshots were fired from behind Pickett, Pardue, and Caine.   The three fled.   Pickett looked back and saw appellant standing alone on the sidewalk and firing a gun.   Appellant said something like, “ ‘Did some hit?’   “ Pardue suffered two gunshot wounds, a fatal one to his chest and a nonfatal one to his left leg.

In March 2006, Pickett told a detective that Pickett thought the “cell phone guy” was the shooter.   In December 2006, Pickett, during a photographic lineup, identified appellant's photograph as depicting the person who shot Pardue.   At trial, Pickett identified appellant as the shooter.

Norman Benitez testified as follows.   During a couple of weeks in 2005, appellant lived with Benitez in the latter's house.   Benitez heard about the September 20, 2005, murder.   The night of the shooting, appellant and his friends came to Benitez's house.   Appellant told Benitez that appellant had to get away from police who were in the neighborhood.   Benitez told a detective that appellant “ ‘mentioned something about the guy that got shot or a Black guy that got shot.’  “ Benitez also told the detective that appellant said “ ‘they had smoked him.’ “

Hernandez, the gang expert, testified Pardue was shot in 18th Street gang territory.   The prosecutor posed a hypothetical question based on evidence in this case and asked if Hernandez had an opinion as to whether the crime was for the benefit of, at the direction of, or in association with the 18th Street gang.   Appellant posed an unspecified objection to the question, and the court overruled the objection.

After the prosecutor then asked what Hernandez's opinion was, Hernandez replied, “My opinion is that this individual shooting at a person laughing at someone talking about 18th Street is doing it to benefit the gang, try[ing] to show them this is what this gang does.   This is who we are.   We are not going to let someone walk in our neighborhood disrespecting us and laughing at our 18th Street, and this is the consequence that happened.”   The prosecutor then asked, without objection, if there were any Black gangs in the area of Sixth and Westlake.   Hernandez replied no.

In defense, a psychologist testified concerning various factors affecting alleged eyewitness identifications.

ISSUES

Appellant claims (1) the trial court erroneously failed to exclude pursuant to Evidence Code section 352, Hernandez's expert testimony concerning profile evidence and concerning the ultimate issue of whether appellant shot Pardue to benefit appellant's criminal street gang, and (2) the trial court erroneously imposed an enhancement for personal use of a firearm.

DISCUSSION

1. The Gang Expert's Testimony Was Admissible.

Hernandez testified as set forth in the Factual Summary.   During its final charge to the jury, the court gave a modified CALCRIM No. 1401, concerning the criminal street gang allegation, and a modified CALCRIM No. 1403, a limiting instruction concerning gang evidence.2

Appellant claims the trial court erroneously failed to exclude pursuant to Evidence Code section 352, Hernandez's expert testimony concerning profile evidence and concerning the ultimate issue of whether appellant shot Pardue to benefit appellant's criminal street gang.   Appellant makes several arguments which we address below, and we reject his claim.

At the outset, we conclude appellant waived the issues he now raises because he failed to object below on the grounds he now urges.  (Evid.Code, § 353, subd. (a).)  As to the merits, in People v. Vang (2011) 52 Cal.4th 1038 (Vang ), a gang expert, in response to hypothetical questions posed by the prosecutor, testified an assault would benefit a named gang and was committed in association with the gang and at the direction of the gang's members.   The expert also testified the attack was gang motivated.   Our Supreme Court concluded the prosecutor's hypothetical questions, although based on evidence-specific assumptions, were properly based on evidence at trial and the expert's opinion testimony in response was admissible and not rendered inadmissible by the fact, if true, that the testimony pertained to an ultimate issue(s) to be decided by the trier of fact.  (Id. at pp. 1042–1049.)

In the present case, the prosecutor essentially posed a hypothetical question which asked Hernandez to assume various facts based on the evidence.   The prosecutor's question was proper and, in response, Hernandez, a gang expert, properly gave his opinion.   Hernandez's expert opinion testimony, which pertained to the gang enhancement allegation, was admissible.  (Cf. Vang, supra, 52 Cal.4th at pp. 1042–1049.)

Appellant argues the trial court should have excluded Hernandez's testimony pursuant to Evidence Code section 352 because the testimony was inadmissible profile evidence that appellant, an Hispanic gang member, shot Pardue, an African–American male, because Pardue had disrespected appellant by laughing at him and therefore appellant was guilty of willful, deliberate, and premeditated murder.3

However, profile evidence is a point by point examination of profile characteristics that enables an investigator to justify pursuing an investigation.   Because of the limited usefulness of profiles, courts have declared testimony concerning a defendant's alignment with a particular profile incompetent as direct evidence of guilt.  (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555.)   Profile evidence introduced at a trial is inherently prejudicial.   While similarities in the profile may be a proper consideration for law enforcement in investigating criminal activity, they are inappropriate for consideration on the issue of guilt or innocence because the profile potentially includes characteristics of the innocent as well as the guilty.   (Ibid.)

On the other hand, it is settled that gang evidence is admissible to prove a gang allegation (Vang, supra, 52 Cal.4th at pp. 1042–1049) and other facts.   For example, “Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive․”  (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)   Hernandez's testimony was not profile evidence excludable under Evidence Code section 352, but instead was admissible gang evidence.

Moreover, the court, using CALCRIM No. 200, instructed the jury to consider all instructions together.   A reasonable jury considering (1) CALCRIM No. 1401 (see fn. 2, ante ) with (2) the clause in CALCRIM No. 1403, that “[t]he defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement” (see fn. 2, ante ) would have understood that the phrase “intent, purpose, and knowledge that are required to prove the gang-related enhancement” referred, not to mental states relating to murder, but to mental states relating to the gang enhancement applicable to the murder which the jury already had found appellant committed.4  CALCRIM Nos. 1401 and 1403 effectively defined the limited purposes for which the court admitted the gang evidence and for which the jury properly could consider it.

As the court in People v. Samaniego (2009) 172 Cal.App.4th 1148, indicated, a reasonable jury would have understood from the modified CALCRIM No. 1403 that the jury could consider the gang evidence “only on the issues germane to the gang enhancement, the motive for the crime and the credibility of witnesses.”   (Id. at p. 1168, italics added.)

Accordingly, to the extent appellant argues Hernandez presented gang evidence that appellant shot Pardue, committed murder, or committed murder that was willful, deliberate, or premeditated, the instructions effectively told the jury not to consider the gang evidence on those issues directly.   We presume the jury correlated and followed the instructions.  (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Appellant argues “[a]ppellant's intent in shooting Pardue was the key determination the jury had to make in determining whether the ‘in furtherance of a gang’ element of the gang allegation was proven.”   However, to the extent appellant complains here or elsewhere that Hernandez testified as to an ultimate issue(s), that fact, if true, did not render his expert testimony inadmissible.  (Vang, supra, 52 Cal.4th at pp. 1042–1049.)   No evidentiary error occurred.

Finally, even if Hernandez's gang testimony should have been excluded under Evidence Code section 352, there was ample evidence based on the circumstances of the shooting and Benitez's testimony, and even absent the gang testimony, that appellant committed the willful, deliberate, and premeditated murder of Pardue, and that the firearm enhancement allegations were true.   To that extent, the alleged evidentiary error was not prejudicial.  (Cf. People v. Watson (1956) 42 Cal.2d 818, 836.)

2. The Trial Court Properly Imposed a Firearm Enhancement of 25 Years to Life Pursuant to Former Penal Code Section 12022.53, Subdivisions (d) and (e)(1).

a. Pertinent Facts.

The amended information filed January 25, 2010, alleged, inter alia, that “a principal personally and intentionally discharged a firearm, a [handgun,] which proximately caused ․ death” to Pardue “within the meaning of Penal Code section 12022.53(d) and (e)(1).”

The court gave a modified CALCRIM No. 3150 to the jury.   It indicated, inter alia, that if the jury found appellant guilty of murder, “you must then decide whether the People have proved the additional allegations that a principal personally and intentionally discharged a firearm during that crime and, if so, whether the principal's act caused death.” 5  (Italics added.)

The court also gave a modified CALCRIM No. 1402, entitled “Gang-related firearm enhancement[.]”  (Some capitalization omitted.)   It indicated, inter alia, that if the jury found appellant guilty of murder committed for the benefit of a criminal street gang, “you must then decide whether, for the crime, the People have proved the additional allegation that one of the principals personally used and personally and intentionally discharged a firearm during that crime and caused ․ death.”  (Italics added.)   The instruction also stated, “A person is a principal in a crime if he or she directly commits or attempts to commit the crime.” 6

The jury found, inter alia, that a “principal personally and intentionally discharged a firearm, [a handgun], which proximately caused ․ death” to Pardue “within the meaning of Penal Code Section 12022.53(d) and (e)(1).”

At the sentencing hearing on June 29, 2010, the court stated, “Mr. Aguilar, on count 1, a violation of Penal Code section 187 in the first-degree, I order you be imprisoned in state prison for a total term of 50 years to life.   The court selects the term of 25 years to life for count 1, which is the term that's prescribed by statute,․  [¶] And then pursuant to Penal Code section 12022.53(d) and (e)(1) an additional 25 years to life consecutive also prescribed by statute.  [¶] The sentences for the 186.22 allegation, the 12022.53(c) and (e)(1), and the 12022.53(b) and (e)(1) are stayed pursuant to Penal Code section 12022.53(b) [sic ].”  (Italics added.)

b. Analysis.

Appellant claims the trial court erroneously imposed a personal use of a firearm enhancement.   He suggests several arguments in support of his claim.   We address them below and reject his claim.

Appellant's heading on this issue suggests the court, by imposing a consecutive term of 25 years to life pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1), imposed an enhancement for mere personal use of a firearm.   We disagree.   The court did not impose an enhancement merely for appellant's personal use of a firearm.   Mere personal use of a firearm is governed by former Penal Code section 12022.53, subdivision (b).  The court imposed an enhancement pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).

Appellant argues imposition of the former Penal Code section 12022.53, subdivisions (d) and (e)(1) firearm enhancement was error because the amended information failed to put appellant on notice of personal firearm use, and the jury did not find such use by appellant.   We reject the argument.   The amended information alleged a principal personally and intentionally discharged a firearm, a handgun, which proximately caused death, pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).   The jury found true this allegation pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).   The court sentenced appellant to prison for a consecutive term of 25 years to life pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).   No further allegation in the amended information, or finding by the jury, was required.

The fact appellant would have received the same prison sentence–25 years to life–if the amended information had alleged, and the jury had found, a violation of former Penal Code section 12022.53, subdivision (d) alone (based merely on appellant's personal and intentional discharge of a firearm causing death, absent an express allegation that a principal did this, and absent a gang allegation) does not compel a contrary conclusion.   The People, by electing to prosecute under former Penal Code section 12022.53, subdivisions (d) and (e)(1), essentially elected to prove more than they needed to prove in order to impose a former Penal Code section 12022.53 firearm enhancement of 25 years to life in prison.

Appellant suggests imposition of the consecutive term of 25 years to life pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1) was erroneous because former Penal Code section 12022.53, subdivision (e)(2) prohibits imposition of both a former Penal Code section 12022.53, firearm enhancement and a former Penal Code section 186.22, gang enhancement.   However, the court imposed only a former Penal Code section 12022.53 enhancement, not a former Penal Code section 186.22, gang enhancement.   The court properly increased punishment pursuant only to former Penal Code section 12022.53, subdivisions (d) and (e)(1).  (People v. Brookfield (2009) 47 Cal.4th 583, 589–590.)

Appellant suggests imposition of the consecutive term of 25 years to life pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1) was erroneous because the People prosecuted appellant on the theory he was a direct perpetrator and not an aider and abettor.   We disagree.   Nothing in former Penal Code section 12022.53, subdivisions (d) and (e)(1) limit their application to persons who aid and abet, and nothing in those subdivisions renders them inapplicable to direct perpetrators.   Those subdivisions, read together, apply to principals.   All direct perpetrators are principals.   (People v. Calhoun (2007) 40 Cal.4th 398, 402.)

Appellant suggests CALCRIM Nos. 1402, 3146, and 3150, were erroneous because they did not require a finding that appellant personally used a firearm.   We disagree.   For reasons discussed previously, such a finding was irrelevant to whether the trial court lawfully could enhance appellant's sentence pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1);  therefore, CALCRIM Nos. 1402 and 3150 were not deficient by reason of their failure to require appellant's personal use of a firearm.   CALCRIM No. 3146 (see fn. 6, ante ) is irrelevant because the court imposed appellant's firearm enhancement pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).   CALCRIM No. 3146, referring to a principal who personally uses a firearm, implicates only former Penal Code section 12022.53, subdivisions (b) and (e)(1).

Appellant argues the court never instructed the jury on the definition of a principal or that appellant was a principal.   However, the court gave the modified CALCRIM No. 1402, which stated, inter alia, “A person is a principal in a crime if he or she directly commits ․ the crime.”   The instruction appropriately left to the jury to decide whether appellant directly committed murder and therefore was a principal.   If the court had told the jury appellant was a principal, this apparently would have amounted to an impermissible directed verdict.  (See People v. Wilkins (1994) 26 Cal.App.4th 1089, 1093.)   The court did not err or violate appellant's constitutional rights to due process and a jury trial by imposing a consecutive term of 25 years to life pursuant to former Penal Code section 12022.53, subdivisions (d) and (e)(1).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Los Angeles Police Detective Edgar Hernandez, a gang expert, testified as follows.   Appellant was a member of the 18th Street gang.   Photographs of appellant depicted that he had 18th Street gang tattoos, among other places, on top of his face, over his right eyebrow, below his left ear, on the back of his neck, and on his wrist..  FN1. Los Angeles Police Detective Edgar Hernandez, a gang expert, testified as follows.   Appellant was a member of the 18th Street gang.   Photographs of appellant depicted that he had 18th Street gang tattoos, among other places, on top of his face, over his right eyebrow, below his left ear, on the back of his neck, and on his wrist.

FN2. The modified CALCRIM No. 1401, instructed on the issue of whether the “felony [was] committed for benefit of [a] criminal street gang.”   (Capitalization omitted.)   That instruction stated, in pertinent part, “If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang.”  (Italics added.)   The modified CALCRIM No. 1403, instructed on the “limited purpose of evidence of gang activity.”  (Capitalization omitted.)   That instruction stated, in pertinent part, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged or the defendant had a motive to commit the crime charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”  (Italics added.).  FN2. The modified CALCRIM No. 1401, instructed on the issue of whether the “felony [was] committed for benefit of [a] criminal street gang.”   (Capitalization omitted.)   That instruction stated, in pertinent part, “If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang.”  (Italics added.)   The modified CALCRIM No. 1403, instructed on the “limited purpose of evidence of gang activity.”  (Capitalization omitted.)   That instruction stated, in pertinent part, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement charged or the defendant had a motive to commit the crime charged.  [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.  [¶] You may not consider this evidence for any other purpose.   You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”  (Italics added.)

FN3. Appellant also, citing to pages 2439 through 2441, and pages 2445 through 2449, of the reporter's transcript, argues the admission into evidence of the allegedly inadmissible gang evidence was prejudicial because, inter alia, the prosecutor relied on that evidence to argue to the jury that appellant committed willful, deliberate, and premeditated murder.   However, at pages 2446 and 2447, the prosecutor expressly related gang evidence (appellant's gang affiliation) only to the issue of his “motive.”   This was consistent with the court's instructions to the jury (as discussed later).   At pages 2448 and 2449, the prosecutor discussed, inter alia, murder and malice aforethought, but did not expressly relate gang evidence to these issues.   Appellant's argument fails..  FN3. Appellant also, citing to pages 2439 through 2441, and pages 2445 through 2449, of the reporter's transcript, argues the admission into evidence of the allegedly inadmissible gang evidence was prejudicial because, inter alia, the prosecutor relied on that evidence to argue to the jury that appellant committed willful, deliberate, and premeditated murder.   However, at pages 2446 and 2447, the prosecutor expressly related gang evidence (appellant's gang affiliation) only to the issue of his “motive.”   This was consistent with the court's instructions to the jury (as discussed later).   At pages 2448 and 2449, the prosecutor discussed, inter alia, murder and malice aforethought, but did not expressly relate gang evidence to these issues.   Appellant's argument fails.

FN4. We note the modified CALCRIM No. 1403 instruction contained the phrase “to prove the gang-related enhancement.”   However, the unmodified instruction contained the phrase “to prove the gang-related (crime[s]/ [and] enhancement[s]․)”  (Italics added.)   That is, the CALCRIM No. 1403 instruction in the present case was modified by, inter alia, the deletion of the phrase “crime[s]/ [and]” with the result the jury could not consider evidence of gang activity for the purpose of deciding whether the defendant acted with the intent, purpose, and knowledge required to prove appellant committed the crime of murder..  FN4. We note the modified CALCRIM No. 1403 instruction contained the phrase “to prove the gang-related enhancement.”   However, the unmodified instruction contained the phrase “to prove the gang-related (crime[s]/ [and] enhancement[s]․)”  (Italics added.)   That is, the CALCRIM No. 1403 instruction in the present case was modified by, inter alia, the deletion of the phrase “crime[s]/ [and]” with the result the jury could not consider evidence of gang activity for the purpose of deciding whether the defendant acted with the intent, purpose, and knowledge required to prove appellant committed the crime of murder.

FN5. Although the heading of the modified CALCRIM No. 3150 was “Personally Used Firearm[,]” language referring to personal use of a firearm is not found in the text of the language of said modified instruction..  FN5. Although the heading of the modified CALCRIM No. 3150 was “Personally Used Firearm[,]” language referring to personal use of a firearm is not found in the text of the language of said modified instruction.

FN6. The court also gave a modified CALCRIM No. 3146.   It indicated, inter alia, that if the jury found appellant guilty of murder, “you must then decide whether the People have proved the additional allegation that a principal personally used a firearm during the commission of that crime.”   (Italics added.)   Although the heading of the modified instruction was “Personally Used Firearm[,]” the text of the language in said instruction indicated the jury had to find that a principal personally used a firearm..  FN6. The court also gave a modified CALCRIM No. 3146.   It indicated, inter alia, that if the jury found appellant guilty of murder, “you must then decide whether the People have proved the additional allegation that a principal personally used a firearm during the commission of that crime.”   (Italics added.)   Although the heading of the modified instruction was “Personally Used Firearm[,]” the text of the language in said instruction indicated the jury had to find that a principal personally used a firearm.

KLEIN, P. J. CROSKEY, J.