THE PEOPLE v. OSWALDO ANTONIO SALAZAR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Oswaldo Antonio Salazar appeals from the judgment entered following his convictions by jury on three counts of carjacking (Pen.Code, § 215, subd. (a);  counts 1 – 3) with findings he committed each offense for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)) and with an admission he suffered a prior felony conviction for which he served a separate prison term (Pen.Code, § 667.5, subd. (b)).  The court sentenced appellant to prison for 45 years to life, plus one year.   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 established that on April 13, 2008, Guillermo Martinez and his wife Mirna Torres were in their red Toyota Celica with their infant daughter, Jaleen Martinez (Jaleen).   The Celica was parked in the parking lot of a Rite Aid in Palmdale.   Martinez, who had been driving, exited the Celica to enter the store while Torres and Jaleen remained in the car.   A nearby Honda Civic contained four male Hispanics, and one female seated in the front passenger seat.   Two of the males, i.e., the Civic's driver and a rear passenger, exited the Civic and carjacked the Celica from Torres, Martinez, and Jaleen (counts 1 through 3, respectively).   The two carjackers drove away in the Celica with the Civic following.   The Rite Aid and a Food4Less store were in the same business complex.

Two downward-pointing fingerprints from two fingers of the left hand of appellant were found on the outside of the top edge of the driver's window of the Celica.   An additional fingerprint from appellant's left hand was found on the outside of that window.   Two fingerprints from two fingers of the right hand of Travis Anthony Webb were found on the outside of the driver's window of the Celica.   The two fingerprints were consistent with Webb having placed them there while closing the driver's door of the Celica from outside.

The testimony of Deborah Rebeaud ¹ established the following.   About 3:00 to 4:00 p.m. on April 13, 2008, Rebeaud and her friends, Marcus Deherrera and Mikey Lynch,² were at Littlerock Dam. Rebeaud had arrived in her Honda Civic.   Deherrera later drove the Civic, containing Rebeaud and Lynch, to a store.   Rebeaud was in the “passenger” seat and Lynch was in the back seat.

At some point after Rebeaud left Littlerock Dam, appellant and Webb entered the Civic.   Rebeaud testified that, at some point during the afternoon, “we had a couple of 12 packs, bottles.”   Appellant, Webb, Deherrera, and Rebeaud went in the Civic to a Stater Brothers store to buy drinks.   Lynch may have exited at some point.   Appellant, Webb, and Deherrera were members of the LCV gang.

Rebeaud told Los Angeles Police Detective Tyrone Berry that Deherrera drove the car containing appellant, Webb, and Rebeaud across the street to a Food4Less parking lot.   Rebeaud did not tell Berry that appellant, Webb, and Deherrera took a car belonging to two persons, but told Berry that anything was possible.

Rebeaud told Berry that she saw appellant and Webb exit her car while she was in the Food4Less parking lot, but she did not see where the two went.   She also said that Deherrera, Lynch, and Rebeaud then left to get something to eat.   Rebeaud testified she had been drinking and taking pills during many of the above events, and that she was sleeping most of the time.   The Civic was registered to Rebeaud's husband, who was an LCV member.

Berry, who was the investigating officer in this case, testified as follows.   In July 2008, Berry interviewed Rebeaud.   Her answers to Berry's questions were very specific.   When Rebeaud referred to appellant, Webb, Deherrera, and Lynch, she only knew them, and always referred to them, by their monikers (i.e., Enemy, Little Gangster, Smokey, and Mikey, respectively).   After Berry's interview with Rebeaud, “[Berry] went through [his] resources at the station, verified the monikers.   Compared the monikers to booking photos, and showed them to [Rebeaud] to verify that that was who we're talking about.”   Rebeaud identified these individuals, including appellant, at the preliminary hearing.

Berry also testified Rebeaud told him the following.   Appellant, Webb, Deherrera, Lynch, and Rebeaud were in the car when they arrived at the Food4Less.   Rebeaud was in the back seat.   Rebeaud saw appellant and Webb exit the Civic when they arrived at Food4Less.   When appellant and Webb exited the car, “ ‘[appellant] and [Webb] jacked the family's car.’  “ The family's car was a red Toyota.   After appellant and Webb carjacked the family's car, appellant and Webb drove away in it.   When Berry and Rebeaud conversed about what had happened with appellant, Webb, Deherrera, and Lynch, she was referring to a carjacking that had occurred at the Rite Aid. Rebeaud never told Berry that anyone else was involved in this case.

Berry, a gang expert, also testified as follows at appellant's 2010 trial.   LCV stood for Los Compadres Varrio, which was a criminal street gang.   There were 65 LCV members in 2008.   The primary activities of LCV included carjackings and witness intimidation.   Appellant, Webb, and Deherrera were LCV members.   One of appellant's monikers was Enemy.   On April 13, 2008, Lynch was not an LCV member, but he was associating with LCV members.

Appellant had, above his right eyebrow, a tattoo that said LCV. He had on the lower portion of his head a tattoo that said Compadres, and had, on the back of his head, a tattoo that said LCV. Webb had on his forehead a large, bold tattoo of the letter C. The C stood for Compadres.   A May 2008 photograph depicted Webb with a portion of his head shaved and with the tattoo on his head.   Webb had on the back of his head a tattoo that said LCV3. LCV3 was equivalent to LCV. The hair of appellant and Webb was longer at trial than their hair was at the time of the present offenses.   Berry testified at the preliminary hearing that one way a citizen would identify a person as a gang member was by the person's appearance.

According to Berry, the present offenses benefited LCV as a gang.   The present offenses were violent crimes which terrorized the community.   One of the primary goals of a criminal street gang was to instill fear in the community, since such fear aided the gang in the commission of other crimes.   Victims and witnesses fearing gang retaliation were reluctant to cooperate in a prosecution.

When crimes such as the present offenses were attributed to LCV, the status of the gang among rival gangs increased, as did the status of individual LCV members.   The present offenses also increased the status of the perpetrators, because they were working together, and other members of the gang would learn that the perpetrators were “ ‘putting in work,’ “ i.e., were active gang members.

The present offenses were committed within the territory of the LCV gang.   Berry had spoken with members of other gangs who knew that LCV had committed the present offenses.   Two community members had told Berry that (1) they were aware the present offenses were gang cases involving a carjacking committed by gang members, and (2) said community members were afraid.   During conflicts between rival gangs, gang members typically yelled their gang names to the rival gang members, but gang members would not typically yell their gang names when committing crimes against the public.   A code of silence existed among rival gangs, but yelling a gang name to the public would increase the risk of criminal prosecution.

ISSUES

Appellant claims (1) the trial court erred by refusing to bifurcate the trial of the gang enhancement allegations, (2) there was insufficient evidence supporting his convictions, (3) there was insufficient evidence supporting the true findings as to the gang allegations, and (4) if the true findings as to the gang allegations are reversed, he is entitled to a new trial on the carjacking allegations.

DISCUSSION

1. The Court Did Not Abuse Its Discretion by Refusing to Bifurcate the Gang Enhancement Allegations.

a. Pertinent Facts.

After the testimony of Torres and Rebeaud, but prior to the testimony of Berry, appellant requested that the court exclude Berry's proposed gang expert testimony concerning the gang enhancement allegations on the ground no previous evidence had been presented that the carjackings were gang-related.   Appellant also requested the court bifurcate the trial of the gang allegations from the trial on the carjacking allegations.

As to the admissibility issue, the court indicated as follows.   Appellant's mere gang membership was an insufficient basis to allow Berry's testimony, but more than that had been presented.   Appellant had acted in association with other gang members.   Rebeaud already had provided association evidence through her testimony that the car in question was registered to her husband, who, like appellant, was an LCV member.   The court ruled Berry's gang testimony was admissible.

As to the bifurcation issue, the court indicated as follows.   The gang enhancement allegations already had been read to the jury and testimony already had been presented.   The court was denying appellant's request for bifurcation because the gang allegations were sufficiently intertwined with the facts and elements of the present case, and denial of appellant's request would not be unduly prejudicial.   The court would give jury instructions which distinguished “the [gang] allegation ․ from the main elements of the crime.” ³

b. Analysis.

Appellant claims the trial court's denial of his bifurcation request was error.   He argues that prior to Berry's testimony, no evidence had been presented that the carjackings might be gang-related;  therefore, the trial court erred by ruling Berry's testimony was admissible and by refusing to bifurcate the gang allegations.   For the reasons discussed below, we reject appellant's claim.

An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.  (People v. Waidla (2000) 22 Cal.4th 690, 717.)   Similarly, we review for abuse of discretion a trial courts decision not to bifurcate a gang allegation.   (People v. Hernandez (2004) 33 Cal.4th 1040, 1050–1051 (Hernandez ).)

First, and notwithstanding appellant's suggestion to the contrary, prior to Berry's testimony, the People presented evidence, through Rebeaud's testimony, that the present crimes might be gang crimes.   Moreover, we have concluded in part 3, post, that sufficient evidence, including Berry's gang testimony, supported the gang allegations.   The court did not abuse its discretion by admitting Berry's gang testimony or by refusing to bifurcate the gang allegations.

Second, as to the bifurcation issue alone, prior to appellant's bifurcation request, the gang allegations had been read to the jury and pertinent testimony already had been presented, including Rebeaud's previously discussed testimony.   At the time the court ruled on appellant's bifurcation request, the court indicated it would give instructions to the jury which distinguished “the [gang] allegation ․ from the main elements of the crime.”   The court thereby clearly indicated that the gang evidence would be admitted only to prove the gang allegations, and not to prove the carjackings.

Appellant's bifurcation argument thus reduces to the suggestion that bifurcation is required where, as here, gang evidence was admitted to prove only the gang allegations and not to prove the carjackings.   However, that is not the law.   The mere fact, if true, that gang evidence proffered to prove a gang allegation is inadmissible to prove an underlying crime does not render a trial court's decision to deny bifurcation an abuse of discretion.   (Hernandez, supra, 33 Cal.4th at p. 1050.)   Factors favoring joinder may still exist, since a unitary trial on allegations pertaining to a substantive crime and a gang enhancement ordinarily avoids the increased expenditure of funds and judicial resources which might result if bifurcation occurred.   (Id. at pp. 1050–1051.)   This provides a second reason why the trial court did not abuse its discretion by denying appellant's request to bifurcate the trial on the gang allegations.  (Cf. Hernandez, supra, 33 Cal.4th at pp. 1048–1051.)   Neither the admission of Berry's gang testimony nor the trial court's refusal to bifurcate the gang allegations denied appellant a fair trial or violated his constitutional rights to due process.

Finally, even if the trial court erred at the time it refused to bifurcate the gang allegations, it does not follow we must reverse the judgment.   During its final charge, the court gave CALCRIM No. 1403 to the jury.   That instruction effectively told the jury that the jury (1) was not to consider the gang evidence in connection with any issues related to whether appellant was guilty of the carjackings, except as to the issue of witness credibility, (2) was to consider the gang evidence only in connection with certain issues related to the gang allegations, and (3) was not to consider the gang evidence as propensity evidence.   We presume the jury followed those instructions.  (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852).   The court did not reversibly err by permitting the jury to consider the gang evidence insofar as it related to Rebeaud's credibility.   Appellant, as was his right, did not testify;  therefore, his credibility as a witness was not at issue.   No prejudicial error occurred.  (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

2. Sufficient Evidence Supported Appellant's Carjacking Convictions.

Appellant claims there is insufficient evidence supporting his carjacking convictions because there is insufficient identification evidence.   We disagree.   There was substantial evidence as follows.   Appellant's fingerprints were found on the outside of the driver's window of the victims' Celica.   Our “Supreme Court has repeatedly emphasized that fingerprints are the strongest evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator of the crime.”  (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1588, italics added.)

Rebeaud's testimony placed appellant in the Food4Less parking lot.   The Food4Less store was in the same complex as the Rite Aid, and the carjackings occurred in the Rite Aid parking lot.   Rebeaud told Berry she saw appellant and Webb exit her car while she was in the Food4Less parking lot.

Berry testified Rebeaud told him that appellant and Webb exited the Civic, and “ ‘[appellant] and [Webb] jacked the family's car.’  “ Berry also testified Rebeaud was referring to a carjacking that occurred at Rite Aid. Berry showed Rebeaud a photograph of appellant, whom she identified by his moniker Enemy.   She also identified appellant at the preliminary hearing.   Appellant and a number of his confederates were members of the LCV gang and, according to Berry, the present offenses benefited LCV. We conclude there was sufficient evidence, including sufficient identification evidence, to convince a rational trier of fact beyond a reasonable doubt that appellant committed the carjackings (counts 1 – 3) of which he was convicted.

3. Sufficient Evidence Supported the True Findings as to the Gang Enhancement Allegations.

Appellant claims there is insufficient evidence supporting the true findings as to the gang enhancement allegations.   He argues there is insufficient evidence he was convicted of felonies “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” within the meaning of Penal Code section 186.22, subdivision (b)(1).   We reject appellant's claim.

There was substantial evidence as follows.   Appellant and Webb not only acted in concert when committing the present offenses, but appellant, Webb, and Deherrera were LCV members.   Lynch and Rebeaud were associating with them.   The primary activities of LCV included carjackings and witness intimidation, and there were only about 65 members in the gang.   No other gangs were involved in the present incident and, except for the victims, no one was involved in this incident except LCV members and persons associated with them.   Rebeaud knew appellant, Webb, and Deherrera by only their gang monikers.   The Civic in which appellant, Webb, Deherrera, Lynch, and Rebeaud traveled was registered to Rebeaud's husband, an LCV member.   The present offenses were committed in LCV territory.

According to Berry, one way a citizen identified gang members was by their appearance.   The jury reasonably could have concluded as follows.   At the time of the present offenses, appellant had visible LCV tattoos above his right eyebrow and on his head.   Webb too had a large, bold, and visible C on his forehead, and the C stood for Compadres.   Webb had a visible tattoo that said LCV3 on the back of his head, and LCV3 was equivalent to LCV, which stood for Los Compadres Varrio.   The jury reasonably could have concluded that Martinez and Torres saw these LCV tattoos during the commission of the present offenses and, whether or not Martinez and Torres saw these tattoos, appellant and Webb were publicizing their gang membership by displaying these tattoos.

Moreover, Berry opined at trial that the present offenses were committed for the benefit of LCV since the present offenses were violent offenses which would terrorize the community and increase the status of the gang, its individual members, and the perpetrators of the present offenses.   Members of other gangs, and members of the community, knew LCV members had committed the present offenses.

Further, Deherrera, appellant, and Webb arrived in the Civic at the victims' location.   When appellant and Webb drove away in the carjacked Celica, the Civic followed.   The Civic contained Deherrera.   The jury reasonably could have concluded that, before leaving the scene, Deherrera had been available to help during the carjacking.   The jury also reasonably could have concluded that LCV members employed a code of silence with the result they would not report crimes committed by them, and that this benefited the gang by making criminal prosecutions more difficult.   To the extent appellant challenges the sufficiency of the evidence of the requisite intent for the gang allegations, there was ample evidence appellant and Webb (1) intended to commit carjacking against the victims, (2) assisted each other in committing those offenses, and (3) were members of a criminal street gang.

We conclude there was sufficient evidence the present offenses were gang-related and that appellant was convicted of felonies “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” within the meaning of Penal Code section 186.22, subdivision (b)(1).  (Cf. People v. Albillar (2010) 51 Cal.4th 47, 59–63, 68.)   None of the cases cited by appellant compel a contrary conclusion.⁴

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

‘ KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

FOOTNOTES

FN1. Rebeaud did not testify at trial, but her preliminary hearing testimony was admitted into evidence at trial..  FN1. Rebeaud did not testify at trial, but her preliminary hearing testimony was admitted into evidence at trial.

FN2. Neither Webb, Deherrera, nor Lynch is a party to this appeal..  FN2. Neither Webb, Deherrera, nor Lynch is a party to this appeal.

FN3. During its final charge to the jury, the court gave CALCRIM No. 1403 on the “Limited Purpose of Evidence of Gang Activity.”   That instruction stated, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendants acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement 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 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.”.  FN3. During its final charge to the jury, the court gave CALCRIM No. 1403 on the “Limited Purpose of Evidence of Gang Activity.”   That instruction stated, “You may consider evidence of gang activity only for the limited purpose of deciding whether:  [¶] The defendants acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancement 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 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.”

FN4. In light of our above conclusions, there is no need to reach appellant's final claim that he is entitled to a new trial on his carjacking allegations if we reverse the true findings on the gang allegations..  FN4. In light of our above conclusions, there is no need to reach appellant's final claim that he is entitled to a new trial on his carjacking allegations if we reverse the true findings on the gang allegations.