Filed 10/28/13 P. v. Gutierrez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063498
Plaintiff and Respondent,
v. (Super. Ct. No. RIF142787)
JOHNNY ALFARO GUTIERREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Patrick F.
Magers, Judge. Affirmed in part; reversed in part with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Johnny Alfaro Gutierrez of assault with a firearm (Pen. Code,1
§ 245, subd. (a)(2)), intimidating a witness (§ 136.1, subd. (b)(1)), possession of a gun by
a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and active participation
in a criminal street gang (§ 186.22, subd. (a)). The jury also sustained allegations that the
assault, witness intimidation and gun possession counts were committed for the benefit of
a gang within the meaning of section 186.22, subdivision (b), and Gutierrez personally
used a firearm in committing the assault and witness intimidation counts within the
meaning of former section 12022.5, subdivision (a) and section 1192.7, subdivision
(c)(8). Additionally, the jury found Gutierrez committed the offenses while released
from custody pending trial on a felony case. (Former § 12022.1.)2 In a bifurcated
proceeding , the trial court found Gutierrez suffered a prior violent or serious felony or
"strike" conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667,
subd. (a)).
The trial court sentenced Gutierrez to an indeterminate term of seven years to life
on the witness intimidation count plus a determinate term of 12 years four months on the
other convictions and allegations.
Gutierrez appeals, raising a multi-prong challenge to his conviction of actively
participating in a criminal street gang. Gutierrez also contends the trial court improperly
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The jury acquitted Gutierrez of a second count of firearm possession by a felon, one count of evading a police officer and one count of receiving stolen property.
2 allowed testimony about the emotional impact of the assault on the victim's family and
erred by giving consciousness of guilt instructions. Further, Gutierrez claims the
prosecutor committed misconduct, the court abused its discretion by denying his new trial
motion and made various sentencing errors. In a supplemental brief, Gutierrez contends
the court erred by imposing the indeterminate sentence on the witness intimidation
conviction.
I
FACTS
At about 3:00 a.m., on April 27, 2008, Fernando Meza, a resident of the
Casablanca area of Riverside, was awakened by the barking of his dog in the backyard.
When Meza went to investigate, he saw Gutierrez on the opposite side of the rear wall of
the yard spray painting the wall with graffiti; another man was watching him. The
graffiti included "Negro," which is Gutierrez's gang moniker.
Meza told Gutierrez and his companion to go home. Gutierrez indicated to Meza
that he was a member of the Casablanca street gang and Meza should not be telling him
to go home. Gutierrez took out a gun, put it to Meza's forehead and told Meza he should
go to sleep if he did not want to be killed. Meza told Gutierrez to do what he had to do.
Gutierrez sprayed Meza's face and neck with the spray paint.
By this time, Meza's wife had entered the backyard. Gutierrez told her to take
Meza away if she did not want to see him dead. Meza's wife told Meza, "Let's go." He
complied and the couple went inside. As Meza was walking to the house, Gutierrez said
if Meza called the police, he would come back and kill him.
3 Meza called 911. While on the phone, Meza and his wife heard gunfire.
Riverside Police Officer Jerry Post was in the neighborhood when he heard four or
five gunshots. About 30 seconds later, Post was dispatched to Meza's residence. As Post
drove to Meza's residence, he saw a silver truck with several individuals inside; the
vehicle was driving away from the area. Post made a U-turn and started to follow the
truck. Post observed a gun being thrown from the vehicle. Post turned on his emergency
lights and sirens, but the truck continued. The driver ran a stop sign and the truck
subsequently struck a curb and wound up facing the wrong direction before stopping.
The truck occupants exited the vehicle and began to run. Four of them were detained
near the truck. Three others continued to flee. Police found Gutierrez in an RV parked
behind a house in the neighborhood. Another person who fled from the truck was hiding
under a trailer in the same yard. The third person who fled was not caught. Several of
the truck occupants were members of the Vagabundos street gang.
Police brought Meza to the location where the truck occupants were detained.
Meza identified Gutierrez as the person who pointed a gun at him, threatened to kill him
and sprayed him with spray paint. Meza was unable to identify Gutierrez's companion at
the fence because Meza had not paid much attention to him.
Gutierrez stipulated that he is a member of the Vagabundos street gang and was a
member on April 27, 2008. He also stipulated that Vagabundos is a criminal street gang
within the meaning of section 186.22.
Detective Joe Miera of the Riverside Police Department's gang unit, testified the
Casablanca Rifa is a criminal street gang with approximately 250 identified members and
4 it operates in the Casablanca neighborhood of Riverside, which is bisected by Madison
Avenue. East of Madison Avenue is controlled by the gang's Evans Street clique and
west of Madison is controlled by the Fern Street clique or Vagabundos. Gutierrez is an
admitted member of the Vagabundos clique. VBS is the common symbol and name of
the Vagabundos clique. Some Vagabundos members use a drawing of a vagabond or
homeless person as a symbol for the clique.
Gutierrez has a tattoo on his head that reads "Vagabundos," a "VBS" tattoo on his
chest, and a tattoo of a vagabond cartoon character. Underneath his "VBS" tattoo, is
"Casablanca" and on top of it is "Doing it 'till death."
In addition to Gutierrez's "Negro" moniker, the graffiti on Meza's wall included
"Dangs" and "Rich." Detective Miera testified "Dangs" stood for "Danger," which was
Juan Medina's moniker, and "Rich" probably referred to Richard Silva. Medina and Silva
are Vagabondos members who were in the silver truck that fled the scene of the assault
on Meza. Miera said that the appearance of a gang member's moniker on a wall indicates
the gang member was present when the graffiti was placed on the wall. Miera explained
to the jury that respect is an important concept within gang culture, and gang members
expect to be respected. By committing crimes and violent acts, gang members instill fear
in the community and discourage law-abiding citizens from testifying against them. The
primary activities of the Casablanca Rifa gang are assaults with a firearm and narcotics
sales.
Miera opined that Gutierrez's assault on Meza and his threat to kill Meza were
committed for the benefit of, in association with or at the direction of the Casablanca
5 Vagabundos clique because such violent activities instill fear in the community and deter
witnesses from testifying against gang members. Miera also opined Gutierrez was an
active participant in Casablanca Vagabundos clique in April 2008.
At trial, both Meza and his wife identified Gutierrez as the individual who was
spray painting the wall and then pointed a gun at Meza.
II
DISCUSSION
A. Active Participation in a Criminal Street Gang
Gutierrez contends his conviction of actively participating in a criminal street gang
must be reversed because of insufficient evidence, an erroneous jury instruction and
improper expert testimony. The contention is without merit.
Section 186.22, subdivision (a) provides in part: "Any person who actively
participates in any criminal street gang with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang, shall be punished"
as a felony or misdemeanor. The substantive offense thus has three elements:
"[(1)] Active participation in a criminal street gang, in the sense of participation that is
more than nominal or passive' . . . [(2)] knowledge that [the gang's] members engage in
or have engaged in a pattern of criminal gang activity, and [(3)] willfully promot[ing],
further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.'
(§ 186.22[, subd. ](a).)" (People v. Lamas (2007) 42 Cal.4th 516, 523; People v.
Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)
6 In Rodriguez, our Supreme Court considered whether a defendant violates section
186.22, subdivision (a) "if he commits a felony, but acts alone." (Rodriguez, supra, 55
Cal.4th at p. 1128.) The Supreme Court observed that in order "to satisfy the third
element [of the offense], a defendant must willfully advance, encourage, contribute to, or
help members of his gang commit felonious criminal conduct," and concluded "section
186.22[, subdivision ](a) requires that felonious criminal conduct be committed by at
least two gang members, one of whom can include the defendant if he is a gang
member." (Id. at p. 1132.) The court reasoned: "The Legislature . . . sought to avoid
punishing mere gang membership in section 186.22[, subdivision] (a) by requiring that a
person commit an underlying felony with at least one other gang member." (Id. at
p. 1134.) The court further explained "section 186.22[, subdivision] (a) reflects the
Legislature's carefully structured endeavor to punish active [gang] participants for
commission of criminal acts done collectively with gang members." (Id. at p. 1139.) A
defendant who acts alone does not violate section 186.22, subdivision (a). (Rodriguez, at
p. 1139.)
Pursuant to Rodriguez, supra, 55 Cal.4th 1125, Gutierrez contends the evidence is
insufficient to support his conviction of the section 186.22, subdivision (a) substantive
gang offense. Rodriguez was decided after Gutierrez had filed his opening brief; he cited
it in his reply brief. At our request, the Attorney General filed a supplemental letter brief
discussing the impact of Rodriguez on this case.
The standard of review for a sufficiency of the evidence claim is well established.
We review the entire record in the light most favorable to the judgment to determine
7 whether it contains substantial evidence — that is, evidence that is reasonable, credible,
and of solid value — from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) "[T]he
substantial evidence rule does not require that the evidence supporting defendant's
conviction be direct evidence. For purposes of the rule, substantial evidence
encompasses circumstantial evidence and any reasonable inferences to be drawn from
such evidence." (People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070.) We presume in
support of the judgment the existence of every fact that could reasonably be deduced
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is clearly
demonstrated that "upon no hypothesis whatever is there sufficient substantial evidence
to support [the verdict of the jury]," we will not reverse. (People v. Redmond (1969) 71
Cal.2d 745, 755.)
There was no direct evidence about the identity of the man standing next to
Gutierrez at the wall or whether he was a gang member; neither Meza nor his wife paid
much attention to him. Nonetheless, there was sufficient circumstantial evidence to
establish that Gutierrez's companion was a fellow gang member who aided and abetted
him. The jury could reasonably infer that the individual was either Vagabundos gang
member Medina or Vagabundos gang member Silva because (1) their monikers were on
the wall along with Gutierrez's moniker; (2) typically, a gang member is present when his
moniker is spray painted on a wall; and (3) Medina and Silva were in the getaway vehicle
that Officer Post followed. The jury also could reasonably conclude that Medina and/or
Silva aided and abetted Gutierrez in his assault and intimidation of Meza by providing
8 "backup" by his supportive presence. Gang members often act in such a role or as
lookouts when a member of their gang commits a crime.
Gutierrez contends CALCRIM No. 14003 allowed the jury to convict him of
section 186.22, subdivision (a) on a theory that he acted alone and thereby violated the
principle enunciated in Rodriguez, supra, 55 Cal.4th 1125. Assuming, without deciding,
that CALCRIM No. 1400 is infirm because it implies one can be guilty of the crime when
acting alone, we find the instructional error was not prejudicial.
"[A]n erroneous instruction that omits an element of an offense is subject to
harmless error analysis under Chapman v. California (1967) 386 U.S. 18 [(Chapman)].
[Citations.] In general, the Chapman test probes 'whether it appears "beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained." ' " (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663.) Thus, "even when
jury instructions completely omit an element of a crime, and therefore deprive the jury of
the opportunity to make a finding on that element, a conviction may be upheld under
Chapman where there is no 'record . . . evidence that could rationally lead to a contrary
finding' with respect to that element." (People v. Davis (2005) 36 Cal.4th 510, 564.)
3 The jury was instructed pursuant to CALCRIM No. 1400 as follows: "The defendant is charged in Count 7 with participating in a criminal street gang in violation of Penal Code[, section] 186.22[, subdivision ](a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; AND [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: a. directly and actively committing a felony offense; OR b. aiding and abetting a felony offense. . . ." 9 Here, there was ample evidence Gutierrez did not act alone in assaulting and intimidating
Meza. This issue was not contested. Moreover, counsel's arguments did not suggest to
the jury that Gutierrez could be convicted of active participation in a gang if he acted
alone. Therefore, we conclude " ' "beyond a reasonable doubt the error complained of did
not contribute to the verdict obtained." ' " (People v. Mayfield (1997) 14 Cal.4th 668,
774.)
Gutierrez also attacks his conviction because Detective Miera was permitted to
give his expert opinion that Gutierrez was an active participant in Casablanca
Vagabundos. Gutierrez's trial counsel did not specifically object below and therefore the
claim of error was forfeited on appeal. (Evid. Code, § 353, subd. (a); People v. Bolin
(1998) 18 Cal.4th 297, 321; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208
[defense counsel's general objection to entirety of gang expert testimony insufficient to
preserve objection to expert opinion on issue of defendant's intent to benefit gang].)
In any event, Gutierrez was not prejudiced by this opinion testimony. Gutierrez
stipulated he was a member of the Vagabundos clique of the Casa Blanca Rifa street
gang. The jury also learned that Gutierrez has several tattoos celebrating his gang
membership, including the word "Vagabundos" on his head and a vagabond cartoon
character. As the prosecutor noted in argument, Gutierrez had made his body a
"billboard of gang membership." Furthermore, on April 27, 2008, when he committed
the instant crimes, Gutierrez was in the company of several fellow gang members. He
also had been in the company of gang members on other occasions when contacted by
police. Given this evidence, it is not reasonably probable that Gutierrez would have
10 achieved a more favorable result if Miera had not been allowed to opine that Gutierrez
was an active participant in the gang.
B. Admission of Testimony of Crime Impact on Victim
On direct examination, the prosecutor asked Meza how the incident affected his
life. The court overruled defense counsel's relevancy objection. Meza answered:
"Since that day my life changed totally, to my family. Even now we're traumatized. First, I lost my house. We had to leave the area. And since then we have been frightened and fear that something should [sic] happen to us. Really, we don't live in peace. And I think that's going to last the rest of our lives because it was something that was very, very hard for us in all aspects. . . . Nothing will be the same because we will always feel that fear that something is going to happen to us. It has affected our lives totally."
Meza also testified that the family moved after the incident because "we were in danger."
Gutierrez attributed the loss of the family home to his inability to keep up his house
payments while paying rent at another location.
Gutierrez contends the trial court committed prejudicial error by allowing Meza to
testify about how the crimes had impacted his family and led to the loss of his home.
Although Gutierrez is correct that it was improper to admit evidence of how the
crimes affected the victim as inconsistent with an objective determination of guilt, we
conclude the error did not prejudice him. Meza's victim impact testimony was relatively
brief, and the evidence of Gutierrez's guilt was strong. Both Meza and his wife identified
Gutierrez as the person who pointed a gun at Meza, sprayed paint at him and threatened
to kill him if he called the police. Gutierrez's moniker, "Negro," was sprayed painted on
the wall behind Meza's residence. Further, Gutierrez fled from a vehicle that was leaving
11 the area after police chased the vehicle. During the police chase, two guns were thrown
from the vehicle.
We find no reasonable probability that the sympathetic victim evidence
contributed to the jury's guilty verdicts in this case. (See People v. Watson (1956) 46
Cal.2d 818, 836 (Watson).)4 Improperly admitted victim-impact evidence should not be
treated any differently than the admission of other types of improperly admitted evidence.
(People v. Redd (2010) 48 Cal.4th 691, 731, fn. 20.) In other words, we evaluate the
prejudicial effect of improper victim-impact evidence as we would the prejudicial effect
of any other improperly admitted evidence.
C. Consciousness of Guilt Instructions
Gutierrez contends his due process rights were violated when the trial court gave
two consciousness of guilt instructions — CALCRIM Nos. 371 and 372 — because the
instructions created permissive inferences that lessened the prosecution's burden of proof.
The contention is without merit.
Due process requires a rational relationship between a permissive inference and
the fact on which it is based. (People v. Mendoza (2000) 24 Cal.4th 130, 180
(Mendoza).) A defendant's due process rights are violated by a permissive inference
" 'only if the suggested conclusion is not one that reason and common sense justify in
4 We note the jury acquitted Gutierrez of three counts where the prosecution's evidence was weaker. (See fn. 2, ante.)
12 light of the proven facts before the jury.' " (Ibid., quoting Francis v. Franklin (1985) 471
U.S. 307, 314-315.)
Our Supreme Court has upheld instructions that permit the jury to infer
"consciousness of guilt" from proven facts, such as making false statements regarding the
crime charged (CALJIC No. 2.03), attempts to dissuade a witness (CALJIC No. 2.04),
suppression of evidence (CALJIC No. 2.06) and flight (CALJIC No. 2.52) against
various challenges. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102;
Mendoza, supra, 24 Cal.4th at p. 180; People v. Jackson (1996) 13 Cal.4th 1164, 1222-
1226 (Jackson); People v. Turner (1994) 8 Cal.4th 137, 202 (Turner).)
Here, pursuant to CALCRIM No. 371, the jury was instructed: "If the defendant
tried to hide evidence or discourage someone from testifying against him, that conduct
may show that he was aware of his guilt. If you conclude that the defendant made such
an attempt, it is up to you to decide its meaning and importance. However, evidence of
such an attempt cannot prove guilt by itself." (Italics added.)
Also, pursuant to CALCRIM No. 372, the jury was instructed: "If the defendant
fled or tried to flee (immediately after the crime was committed/or after he was accused
of committing the crime), that conduct may show that he was aware of his guilt. If you
conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct. However evidence that defendant fled cannot prove guilt by
itself." (Italics added.)
The predecessor to CALCRIM No. 371 was CALJIC No. 2.06, which read in
pertinent part: "If you find that a defendant attempted to suppress evidence . . . , this
13 attempt may be considered by you as a circumstance tending to show a consciousness of
guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are for you to decide." (Italics added.) The constitutionality of
CALJIC No. 2.06 was upheld in Jackson, supra, 13 Cal.4th at page 1224.
The predecessor to CALCRIM No. 372 was CALJIC No. 2.52, which read: "The
flight of a person immediately after the commission of a crime, or after he is accused of
the crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved,
may be considered by you in light of all other proved facts in deciding whether a
defendant is guilty or not guilty. The weight to which this circumstance is entitled is a
matter for you to decide." In upholding the constitutionality of CALJIC No. 2.52, the
Supreme Court noted the instruction permitted a jury to infer "that the flight of a
defendant immediately after the commission of a crime indicates a consciousness of
guilt." (Mendoza, supra, 24 Cal.4th at p. 180, italics added.) The high court noted that
allowing "a jury to infer, if it so chooses, that the flight of a defendant immediately after
the commission of a crime indicates a consciousness of guilt" does not violate due
process. (Ibid.)
Gutierrez distinguishes the CALJIC instructions, which passed constitutional
muster, from the CALCRIM instructions given here based on the latter's use of the phrase
"aware of his guilt" rather than "consciousness of guilt." Gutierrez contends the
distinction is constitutionally significant because the newer instructions go beyond
merely allowing an inference of consciousness of guilt and permit an irrational inference
of guilt itself. Gutierrez argues an awareness of guilt can exist only if a defendant were
14 in fact guilty, and therefore, the "awareness of guilt" language allows a jury to infer one
fact, guilt, from other facts, such as suppression of evidence or discouraging victim
testimony.
Gutierrez's argument has been rejected in People v. Hernández Ríos (2007) 151
Cal.App.4th 1154 (Hernández Ríos), which addressed the difference in phraseology
between the CALJIC No. 2.06 and CALCRIM No. 372. We agree with the reasoning
and conclusion of Hernández Ríos:
"Our short etymological analysis of Ríos's argument begins with a dictionary definition of the word 'aware': 'Having knowledge or cognizance.' (American Heritage Dict. (4th ed. 2000) p. 125.) In reliance on the dictionary's list of synonyms that include the word 'aware,' Ríos argues that the word 'implies knowledge gained through one's own perceptions or by means of information.' (Italics omitted; see ibid.) 'Conscious,' another word on the list, 'emphasizes the recognition of something sensed or felt' (id., at p. 125, italics omitted), which, of course, focuses on the acquisition of knowledge not by 'information' but by 'perceptions.' (Ibid.) Since the dictionary defines 'consciousness' as '[s]pecial awareness or sensitivity: class consciousness; race consciousness' (id. at p. 391; italics omitted), ipso facto the special awareness that Mendoza allows a jury to infer from a flight instruction is 'guilt consciousness' (in the syntax of the dictionary) or 'consciousness of guilt' (in the syntax of the California Supreme Court). (Compare American Heritage Dict., supra, at p. 391 (italics omitted) with Mendoza, supra, 24 Cal.4th at p. 180.) As the inference in Mendoza passes constitutional muster, so does the inference here." (Hernández Ríos, supra, 151 Cal.App.4th at pp. 1158-1159.)
In other words, the terms are synonymous.
The use of "aware of his guilt" language in CALCRIM Nos. 371 and 372 does not
impermissibly suggest that the defendant is guilty. Instead, like CALJIC Nos. 2.06 and
2.52, the only reading of the instructions that would occur to any reasonable juror
familiar with the English language is that these CALCRIM instructions allow a juror to
15 infer a defendant's consciousness of guilt from the defendant's suppression of evidence
and/or flight if the facts warrant such an inference. The instructions, read as a whole, do
not state that the defendant is guilty. Accordingly, like their CALJIC predecessors,
neither CALCRIM No. 371 nor CALCRIM No. 372 violates a defendant's right to due
process nor impermissibly lower's the prosecution's burden of proof.
Furthermore, we note jury instructions are reviewed as a whole "to determine
whether it is reasonably likely the jury understood the challenged instruction in a way
that undermined the presumption of innocence or tended to relieve the prosecution of the
burden to prove the defendant's guilt beyond a reasonable doubt." (People v. Paysinger
(2009) 174 Cal.App.4th 26, 30.) It is not reasonably likely that the jury here understood
the instructions concerning an awareness of guilt as stating that, if Gutierrez fled or
threatened Meza, then he was guilty of the charged offenses. The jury was instructed that
if the defendant engaged in certain conduct, that "conduct may show that he was aware of
his guilt." (Italics added.) The jury was further instructed that it was "up to you [the
jurors] to decide [the] meaning and importance" of the conduct by defendant. Moreover,
the jury was explicitly instructed that evidence of such conduct "cannot prove guilt by
itself." Considering the entirety of the instruction, we do not believe it reasonably likely
that the jury would have understood the instruction as a mandatory or burden-shifting
presumption as Guterriez urges.
D. Prosecutorial Misconduct
Gutierrez contends the prosecutor committed misconduct by (1) suggesting the
reasonable doubt standard of proof did not apply and (2) denigrating defense counsel.
16 "The standards governing review of misconduct claims are settled. 'A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such " 'unfairness as to make the resulting conviction a denial of due process.' " . . .
Under state law, a prosecutor who uses such methods commits misconduct even when
those actions do not result in a fundamentally unfair trial.' " (People v. Friend (2009) 47
Cal.4th 1, 29, citations omitted.) Prosecutorial misconduct under the federal Constitution
requires reversal of a defendant's conviction unless a reviewing court finds it harmless
beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.) This is the test
set forth in Chapman, supra, 386 U.S. 18, 24. Prosecutorial misconduct under state law
requires reversal when a reviewing court finds that it is reasonably probable the result of
a defendant's trial would have been more favorable without the misconduct. (Cook, at
p. 608.) This is the test set forth in Watson, supra, 46 Cal.2d at page 836.
Generally, trial counsel's failure to object to prosecutorial misconduct results in a
forfeiture of the issue on appeal. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
However, where, as here, counsel did not object at trial to alleged prosecutorial
misconduct, the defendant may argue on appeal that counsel's inaction violated his
constitutional right to effective assistance of counsel. (Ibid.) Accordingly, we will
address the merits of Gutierrez's claim despite the lack of an objection at trial.
At issue are these comments by the prosecutor during his closing argument:
"The defense talked about reasonable doubt. Reasonable doubt. I'll submit to you, folks, reasonable doubt is not a standard in our criminal justice system for those people who terrorize the community — it's not a standard
17 for those who terrorize the community to hide under and say you didn't take my fingerprints, I didn't do it. Because you didn't get my fingerprints, you can't prove I did it. Ladies and gentlemen, the best evidence in this case is the identification. That's the best evidence."
and
"I did learn a few things when I was in law school also. I learned that if you're a defense attorney and you don't have a defense in your case, you attack the prosecutor, you attack the police, you attack everybody else, and you try to hide the truth."
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.' " (People v. Wilson
(2005) 36 Cal.4th 309, 337 (Wilson).) " '[W]e "do not lightly infer" that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor's
statements.' " (Id. at p. 338.) "A prosecutor is given wide latitude during closing
argument. The argument may be vigorous as long as it is a fair comment on the
evidence, which can include reasonable inferences or deductions to be drawn therefrom."
(People v. Harrison (2005) 35 Cal.4th 208, 244.) Further, although a defendant may
single out certain comments made by the prosecutor during argument in order to
demonstrate misconduct, as the reviewing court we "must view the statements in the
context of the argument as a whole." (People v. Cole (2004) 33 Cal.4th 1158, 1203
(Cole).)
To the extent the prosecutor's 'reasonable doubt comment suggested that the state
is not held to a reasonable doubt standard when gang members are tried for crimes, the
comment was a misstatement of the law and improper. It is improper for a prosecutor to
18 misstate the law. (People v. Bell (1989) 49 Cal.3d 502, 539.) However, it is highly
unlikely the jury interpreted the comment in this manner. (Wilson, supra, 36 Cal.4th at
pp. 337-338.) To put the prosecutor's reasonable doubt comment in context (Cole, supra,
33 Cal.4th at p. 1203), we note defense counsel had argued that the prosecution had not
proven its case because the police had failed, among other things, to fingerprint the
recovered guns, and the identification evidence was questionable. In responding to
defense counsel's argument, the prosecutor was arguing the identification by Meza and
his wife trumped the proof questions raised by the defense and established guilt beyond a
reasonable doubt.
More importantly, the jury was properly instructed on the definition of reasonable
doubt, admonished it must follow the law as stated by the court and told the statements of
the attorneys were not evidence. In particular, the jury was instructed: "If you believe
that the attorneys' comments on the law conflict with my instructions, you must follow
my instructions." " 'When argument runs counter to instructions given a jury, we will
ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e
presume that jurors treat the court's instructions as a statement of the law by a judge, and
the prosecutor's comments as words spoken by an advocate in an attempt to persuade." ' "
(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268 [addressing prosecutorial
misconduct through improper reasonable doubt argument]; People v. Stitely (2005) 35
Cal.4th 514, 559 ["we assume the jury abided by the court's admonitions and instructions,
and thereby avoided any prejudice"].) Given the context of the arguments and these jury
instructions, we conclude the prosecutor's reasonable doubt comment was harmless
19 beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) For lack of prejudice,
Gutierrez's first claim of prosecutorial misconduct is unavailing.
Gutierrez's second claim of prosecutorial misconduct fails because there was no
misconduct. Although it is misconduct when a prosecutor in closing argument
"denigrat[es] counsel instead of the evidence" because "[p]ersonal attacks on opposing
counsel are improper and irrelevant to the issues . . ." (People v. Sandoval (1992) 4
Cal.4th 155, 184), the prosecutor's comment here cannot be considered as an improper
attack on defense counsel's integrity or as casting aspersions on him.
For example, in People v. Breaux (1991) 1 Cal.4th 281, 305 (Breaux), the
prosecutor argued: " '[I]f you don't have the law on your side, argue the facts. If you
don't have the facts on your side, argue the law. If you don't have either one of those
things on your side, try to create some sort of a confusion with regard to the case because
any confusion at all is to the benefit of the defense.' " The Supreme Court found when the
prosecutor's remarks were taken in context, they "could only have been understood as
cautioning the jury to rely on the evidence introduced at trial and not as impugning the
integrity of defense counsel." (Id. at p. 306.) In People v. Medina (1995) 11 Cal.4th 694,
759 (Medina), our Supreme Court rejected a misconduct claim based on the prosecutor
arguing " 'any experienced defense attorney can twist a little, poke a little, try to draw
some speculation, try to get you to buy something . . . .' " The Supreme Court called these
comments "unobjectable. To observe that an experienced defense counsel will attempt to
'twist' and 'poke' at the prosecution's case does not amount to a personal attack on
counsel's integrity." (Ibid.)
20 The prosecutor's comment in this case falls in the same category as that in Breaux,
supra, 1 Cal.4th at page 305, and Medina, supra, 11 Cal.4th at page 759, and was not an
improper personal attack on defense counsel's integrity.
E. Denial of New Trial Motion
Gutierrez contends the trial court abused its discretion by denying his motion for a
new trial based on ineffective assistance of counsel. The contention is without merit.
Following the verdict, Gutierrez's retained counsel, Stephen Sweigart, informed
the court that his client wanted to file a new trial motion alleging ineffective assistance of
counsel. The court appointed new counsel for purposes of such a motion. New counsel
reviewed the case, but determined there were no grounds for a new trial motion based on
ineffective assistance of counsel or other bases. Gutierrez, appearing in pro per,
proceeded with a new trial motion; his principal ground was ineffective assistance of
counsel.
Ineffective assistance of counsel, if proven, is a valid, nonstatutory ground for a
new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
We review an order denying a motion for new trial for abuse of discretion. (See
Turner, supra, 8 Cal.4th at p. 212 [" ' "The determination of a motion for new trial rests so
completely within the court's discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears." ' "].) Because the new
trial motion was based on ineffective assistance of counsel, the applicable standard is
whether Gutierrez "demonstrate[d] (1) counsel's performance was deficient in that it fell
below an objective standard of reasonableness under prevailing professional norms, and
21 (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable
probability' that, but for counsel's failings, defendant would have obtained a more
favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other
cases, Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
Gutierrez failed to meet his burden below as he does on appeal. His ineffective
assistance of counsel claim has been premised on Sweigart's purported failure to
investigate the case, find percipient witnesses, retain a qualified investigator, object to
hearsay statements by prosecution witnesses and challenge Meza's out-of-court
identification. However, Gutierrez has not demonstrated the investigation conducted by
Sweigart, who first appeared in the case in July 2010 was insufficient. Contrary to
Gutierrez's assertions, the record shows Sweigart brought out many of the shortcomings
of the prosecution's case, such as the lack of fingerprinting and gun residue testing,
evidentiary inconsistencies regarding Meza's curb-side identification, payment by law
enforcement of $2,000 to Meza for housing, and evidentiary discrepancies regarding the
description Meza provided to the 911 operator. Gutierrez's criticism of Sweigart for not
seeking an in-person lineup is unfounded; this was a strategic decision and one that
should not be second-guessed under the deferential review of counsel's trial tactics
articulated in Strickland, supra, 466 U.S. at page 689. Meza very well could have again
identified Gutierrez during an in-person lineup, which, of course, would have seriously
compromised the defense's strongest argument.
The trial court did not abuse its discretion by denying Gutierrez's motion for a new
trial.
22 F. Refusal to Dismiss Prior Strike Conviction
Gutierrez contends the trial court abused its discretion by denying his motion to
deny his prior strike conviction for assault with a firearm. We disagree.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction
allegation. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504;
People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court's refusal to strike a prior
conviction allegation is reviewed under the highly deferential abuse of discretion
standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) A defendant
seeking reversal must " 'clearly show that the sentencing decision was irrational or
arbitrary.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) It is
not enough to show that reasonable people might disagree about whether to strike a prior
conviction. (Carmony, supra, at p. 378.) Only extraordinary circumstances justify a
finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, "the
circumstances where no reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court
must consider are "whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme's
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies." (People v. Williams
(1998) 17 Cal.4th 148, 161.) The three strikes law "not only establishes a sentencing
23 norm, it carefully circumscribes the trial court's power to depart from this norm. . . .
[T]he law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.)
When the record shows the trial court considered relevant factors and acted to achieve
legitimate sentencing objectives, the court's decision will not be disturbed on appeal.
(People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The record before us shows the trial court did not abuse its discretion in denying
the motion. Gutierrez's criminal record dates back to 1993 when he was a juvenile. In
1998, when he was 20 years old, he was convicted of felony assault with a firearm. In
2001 and 2003, he was convicted of felony drug offenses. Each time Gutierrez was
granted parole, he violated the parole and was returned to prison. He was on parole for
his 2003 drug sales conviction when he committed these offenses in 2008. Although
Gutierrez was 33 at the time of sentencing in 2012, he had continued to maintain a gang
lifestyle and a proclivity for guns. The court noted Gutierrez had a "continuing pattern of
criminality" and the record bears this out.
Gutierrez argues the refusal to dismiss the strike conviction was an abuse of
discretion because the strike was more than a decade old and his other offenses were
nonviolent. We are not persuaded. Our task is not to reweigh the facts. (Carmony,
supra, 33 Cal.4th at p. 378.) The record supports the trial court's conclusion that
notwithstanding the age of the strike conviction, Gutierrez has maintained a criminal
lifestyle. Moreover, despite the nonviolent nature of some of Gutierrez's past crimes, this
case does not deserve such a label. Pointing a firearm at a citizen's face is a violent act.
24 The trial court's ruling affirmatively shows that it reviewed Guttierez's present
felonies, prior strike, background, character, and prospects. There is no indication that
the trial court failed to consider any relevant information before it. Accordingly,
Gutierrez has failed to overcome the " 'strong presumption' . . . that the trial judge
properly exercised his discretion." (In re Large (2007) 41 Cal.4th 538, 551, citations
omitted.)
G. Section 654
Gutierrez contends the court erroneously imposed a consecutive sentence for his
felon in possession of a firearm count (former § 12021, subd. (a)(1), now § 29800,
subd. (a)(1)) and the sentence should have been stayed under section 654. He contends
that because the court imposed an enhancement under section 12022.5 for personal use of
a firearm in connection with the witness intimidation count, the challenged sentence
constituted impermissible double punishment. The contention is without merit.
Section 654 bars double punishment for multiple offenses that constitute one
indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) However, a
defendant may be separately punished for offenses that share common acts and are part of
an indivisible course of conduct where the defendant entertained multiple criminal
objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Green
(1996) 50 Cal.App.4th 1076, 1084-1085 (Green).) Whether a course of conduct is
indivisible depends on the defendant's intent and objective rather than the temporal
proximity of the offenses. (Hicks, at p. 789; People v. Jones (2002) 103 Cal.App.4th
1139, 1143 (Jones).)
25 In a section 654 analysis, the defendant's intent and objective are factual questions
to be determined by the trial court. (Green, supra, 50 Cal.App.4th at p. 1085.) We
affirm the court's findings if there is substantial evidence to support them. (People v.
Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's findings " ' "in a
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence." ' " (Id. at
pp. 1312-1313; Green, at p. 1085.)
Whether a violation of former section 12021, subdivision (a)(1) (now § 29800,
subd. (a)(1)) constitutes a transaction divisible from the offense in which the defendant
uses the firearm depends on the facts and evidence of each individual case. (People v.
Bradford (1976) 17 Cal.3d 8, 22.) Multiple punishment is improper where the evidence
shows "at most that fortuitous circumstances put the firearm in the defendant's hand only
at the instant of committing another offense." (People v. Ratcliff (1990) 223 Cal.App.3d
1401, 1412 (Ratcliff).) However, separate punishment for the firearm possession is
proper "when the evidence shows that the defendant arrived at the scene of his or her
primary crime already in possession of the firearm." (Jones, supra, 103 Cal.App.4th at
p. 1145.)
Here, the evidence supports the conclusion Gutierrez possessed the gun before
arriving at the scene of the crime. There was no evidence presented to support a theory
that "fortuitous circumstances" placed the handgun in Gutierrez's possession while he
was applying graffiti to Meza's wall. Because the court could find Gutierrez possessed
the handgun before he arrived at the scene, his violation of former section 12021,
26 subdivision (a)(1) (now § 29800, subd. (a)(1)) was complete before his arrival. (Jones,
supra, 103 Cal.App.4th at p. 1147.) Because his gun possession preceded the witness
intimidation, the court did not violate section 654 by imposing the gun enhancement on
the intimidation count and the sentence for the gun possession. (Ratcliff, supra, 223
Cal.App.3d at p. 1413; Jones, at p. 1147.)
H. Indeterminate Sentence on Witness Intimidation Count
Gutierrez contends the trial court erred by imposing an indeterminate term of
seven years to life on the witness intimidation count pursuant to section 186.22,
subdivision (b)(4)(C). As the Attorney General concedes, the contention has merit.
Gutierrez was convicted of "attempt[ing] to prevent or dissuade" a victim or
witness from reporting a crime. (§ 136.1, subd. (b)(1).) The jury further found Gutierrez
committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b).) For
certain enumerated crimes, the gang statute calls for an indeterminate enhancement.
(§ 186.22, subd. (b)(4)(A)-(C).) Among the enumerated crimes is making "threats to
victims and witnesses, as defined in Section 136.1." (§ 186.22, subd. (b)(4)(C).) The
gang enhancement for this crime is an indeterminate term of seven years to life. (Ibid.)
In People v. Lopez (2012) 208 Cal.App.4th 1049, 1065, the Court of Appeal held
the indeterminate gang enhancement of section 186.22, subdivision (b)(4)(C) may be
imposed for victim or witness intimidation only if the defendant was convicted of section
27 136.1, subdivision (c)(1) because that subdivision is the only provision in section 136.1
that refers to use of an implied or express threat.5
People v. Lopez, supra, 208 Cal.App.4th 1049, is controlling. Gutierrez was
convicted of section 136.1, subdivision (b)(1), not subdivision (c)(1), of that statute.
Further, the jury did not make any factual finding that Gutierrez used threats; thus, under
Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and its progeny, imposition of an
indeterminate enhancement under section 186.22, subdivision (b)(4)(C) violates
constitutional precepts.6
DISPOSITION
The seven-year-to-life sentence for intimidating a witness is reversed. The case is
remanded for resentencing and reduction of the $240 restitution fine and $240 parole
revocation restitution fine to $200 each. (See fn. 6, ante.) The trial court shall prepare an
amended abstract of judgment and forward it to the Department of Corrections and
Rehabilitation.
5 Subdivision (c)(1) of section 136.1 reads: "Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person."
6 The Attorney General also concedes under the prohibitions against ex post facto laws, the $240 restitution fine under section 1202.4, subdivision (b)(1) should be reduced to $200 to reflect the statutory amount at the time the crimes were committed. The same principle calls for reducing the $240 parole revocation restitution fine under section 1202.45, subdivision (b) to $200. 28 In all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.