People v. Recarte CA2/4 ( 2014 )

Filed 6/17/14 P. v. Recarte CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B245867
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA106973)
v.
XAVIER RECARTE et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of Los Angeles County,
Michael E. Pastor, Judge. Affirmed.
Fay Arfa, under appointment by the Court of Appeal, for Defendant and Appellant
Xavier Recarte.
H. Russell Halpern, under appointment by the Court of Appeal, for Defendant and
Appellant Miguel Vasquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Shawn
McGahey Webb and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted appellants Miguel Vasquez and Xavier Recarte of two counts of
murder—Vasquez of first degree, Recarte of second degree (Pen. Code, §187, subd.
(a))—and found the crimes were committed to benefit a criminal street gang (§ 186.22,
subd. (b)(1)(c)).1 As to Vasquez, as to counts 1 and 2 the jury found true three special
circumstance allegations under section 190.2, subdivision (a)(3), (21), and (22) (multiple
murders, murder by discharging a firearm from a motor vehicle, and gang murder), and
the allegation that he discharged a firearm causing death (§ 12022.53, subds. (d) &
(e)(1)). As to Recarte, regarding counts 1 and 2, the jury found not true the special
circumstance allegations and discharge of a firearm allegations. As to a third count of
shooting at an unoccupied building (§ 247, subd. (b)), the jury found Vasquez guilty of
the lesser included offense of grossly negligent discharge of a firearm (§ 246.3) with a
gang allegation (§ 186.22, subd. (b)(1)(c)); the jury found Recarte not guilty of any crime
as to count 3.
The trial court sentenced Vasquez on each first degree murder count to
consecutive terms of life in prison without the possibility of parole, plus 25 years to life
for the discharge of a firearm causing death allegation. (§ 12022.53, subds. (d) & (e)(1).)
The court imposed the midterm of three years on count 3, plus a consecutive term of
three years under section 186.22, subdivision (b)(1). The court imposed and stayed the
additional firearm use enhancements. (§ 12022.53, subds. (b) & (c).) The court
sentenced Recarte to consecutive indeterminate terms of 20 years to life, for a total term
of 40 years to life in state prison.
Appellants appeal from the judgments of conviction raising numerous claims of
error, none of which is persuasive.
1 All undesignated section references are to the Penal Code.
2
FACTUAL BACKGROUND
I. The Killings
On August 12, 2008, near 88th Street and Bandera in Los Angeles, Travelle
Hamblett and Markeith Wilson, both African American, were shot in a hail of bullets.
Hamblett died at the scene. Wilson died a few days later in the hospital. From the
placement of the fatal bullets, both were shot from behind and were not facing the shooter
when wounded.
The shooting occurred in the heart of territory claimed by the Nine Deuce Bishops,
a Crips affiliated, African American gang. Wilson belonged to the Nine Deuce Bishops;
Hamblett’s gang affiliation, if any, was unknown. Appellants belonged to Florencia 13, a
Hispanic gang: Recarte to the Neighborhood clique of the gang, Vasquez to the Jokers’
clique. Florencia 13 was a rival of the Nine Deuce Bishops.
Alsovon Jenkins witnessed the shooting. At trial, he denied having any
knowledge of the incident, and did not want to be involved in the case. He was
impeached by pretrial statements he made in a recorded 911 call and in a recorded
interview with Los Angeles County Sheriff’s Detective Richard Ramirez. According to
this evidence, Jenkins saw Hamblett and Wilson walking in an alley shortly before the
shooting. While Jenkins was working under the hood of his van on 92nd Street, between
88th and Bandera, he heard gunfire, looked up, and saw a gun shooting from a green
Thunderbird with two Hispanic occupants. Jenkins heard as many as 15 shots. As the
Thunderbird drove off, Jenkins followed it in another car. He called 911, described the
Thunderbird’s route of travel, and gave the Thunderbird’s license plate number,
3JSV491. Jenkins saw the Thunderbird stopped on 75th Street just west of Compton
Avenue. The passenger got out holding a gun, and entered a house. The driver drove off.
A sheriff’s helicopter tracked the Thunderbird’s route, and Sheriff’s Detective
Frank Heredia participated in stopping the car shortly before noon. Appellant Recarte,
the driver, was the sole occupant (his fingerprint was later discovered on the driver’s seat
belt buckle). Two shell casings were discovered inside the car, on the rear passenger
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floorboard, and one was found outside on a windshield wiper. Deputy Heredia
administered a gunshot residue test on Recarte’s hands which, when analyzed, returned
positive for residue.
Sometime after 11:30 on the day of the shooting, appellant Vasquez’s cousin,
Marcos Rangel, was outside his mother’s residence, a converted garage at 1435 East 75th
Street, near where Jenkins had seen the passenger exit the Thunderbird. Appellant
Vasquez lived in the back house on the property (the converted garage was to the rear of
that house). Appellant Vasquez spoke to Rangel through Vasquez’s kitchen window. At
trial, Rangel denied that Vasquez told him anything other than not to go outside because
the police had blocked off the street. Rangel was impeached by recorded statements he
made in an interview with Detective Ramirez. In that interview, he told Detective
Ramirez that appellant said that “he gunned — that they gunned down three people,” and
that Vasquez was “with the people” at the shooting, though he “never said who was the
shooter.” Vasquez described the victims as “chongos,” a derogatory term for African
Americans. According to Rangel, Vasquez was known as “Trucha” from Florencia 13.
Around 1:00 p.m., Detective Steven Keen collected a scent sample from the
Thunderbird for use by a scent dog. Detective Keen went with the scent dog and its
handler, Edward Hamm, to 1435 East 75th Street (where appellant Vasquez lived in the
back residence, and Marcos Rangel’s mother lived in the converted garage). The dog
alerted on the sidewalk at the driveway. The dog then led them down the driveway, past
the front house, to the front door of the back residence. Detective Keen knocked on the
door. Hilda Vasquez, appellant’s mother, answered the door. Detective Keen observed
appellant Vasquez lying on the couch inside. He also saw Marcos Rangel exit the
converted garage. Both appellant Vasquez and Marcos Rangel were arrested.
Rangel was ultimately released. But before he was released, in a tape-recorded
conversation with another inmate while in custody, he said that the “fool [who] had shot
them fools was [his] cousin,” who was known as “Trucha” from “Jokers.”
Without their knowledge, appellants Vasquez and Recarte were recorded speaking
to each other while incarcerated in separate holding cells. Four times Recarte asked
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Vasquez, who had trouble hearing him, “Did you tell them that I told you to bust?”
Ultimately Vasquez repeated the question, “That I told you to bust? . . . To shoot?”
Recarte said, “Yeah.” Vasquez replied, “Hell no,” and said, “I’m like, damn. I don’t
even know him.” Recarte warned Vasquez not to say anything, and Vasquez said, “I told
you, I don’t know you.” Recarte replied, “That’s right. Keep it like that, homie.”
Vasquez said, “Say it, Florence, I’m Florence gang, nigger.” Recarte replied, “Right.”
Vasquez said, “You don’t know me, I don’t know you, dude.”
Later in the conversation, Vasquez referred to the police discovering him “[t]hat
same day” at his residence: “This isn’t a joke, homie. How the fuck did they creep up to
me, though?” Still later, Recarte told Vasquez, “We should’ve waited the other day. . . .
We should’ve waited dawg.” Vasquez replied, “I know, dude, we fucked up.”
On the day of the shooting, a Sheriff’s firearms expert, Robert Keil, found 13
nine-millimeter shell casings in the street at the scene. They were grouped together,
indicating that the vehicle from which the shots were fired was either stopped or moving
slowly. Keil determined that the 13 shell casings found in the street and the three seized
from the Thunderbird driven by appellant Recarte were all fired from the same nine-
millimeter firearm.
II. Gang Evidence
Los Angeles County Sheriff’s Detective Dean Camarillo, who had 16 years
experience investigating the Florencia 13 gang, testified as the prosecution gang expert.
Detective Camarillo knew both appellants, each of whom had told him that they belonged
to Florencia 13. Recarte, who had “Trece” (Spanish for 13) tattooed on his arm, said he
belonged to the Neighborhood clique. Vasquez said that he belonged to the Jokers
clique. According to Detective Camarillo, it was not uncommon for members of the
Neighborhood and Jokers cliques to associate with each other.
Detective Camarillo described “[s]ome of the primary activities [of Florencia 13 to
be] assaults, including those with firearms such as drive-by shootings, possession and
distribution and sales of narcotics, robberies, . . . murder, and illegal possession of
5
firearms . . . .” He had personally investigated cases involving some of these crimes
committed by Florencia 13 members. In one case, Florencia 13 member Richard
Hernandez pled no contest to possession of a firearm by a felon (former § 12021, subd.
(a)(1)), the crime occurring on March 23, 2007. In another, Florencia 13 member Ernesto
Orozco was convicted of three counts of aggravated assault (§ 245) committed on
January 20, 2007.
Asked a hypothetical question based on the evidence of the shooting in this case,
Detective Camarillo testified that it was committed for the benefit of the Florencia 13
gang. The fact that in midday two Florencia 13 members would travel to territory
claimed by the rival Nine Deuce Bishops and kill two people by firing 16 rounds “sends a
strong message to the community . . . [,] the [Nine] Deuce Bishops . . . [and] other
gangs.” The crime instills fear and enhances Florencia 13’s reputation. Regardless of
whether only one victim belonged to the Nine Deuce Bishops, the crime informed the
community that Florencia 13 “will kill you whether you are a gang member or not.”
Further, the individual gang members who participated in such a crime would have their
individual reputations enhanced within their cliques.
III. Defense
Appellant Vasquez produced no evidence. Appellant Recarte presented testimony
by his two older brothers, who denied that he belonged to a gang. Recarte’s gang expert,
Gregorio Estevane, testified that based on his investigation of appellant Recarte’s
background, he did not believe that Recarte was an active gang member at the time of the
shooting. Given a hypothetical by defense counsel which incorporated facts mirroring
defense evidence tending to show that appellant Recarte was not an active Florencia 13
member, and also incorporating the fact that such a person “happened to be driving a
vehicle from which another gang member shoots two people,” Estevane opined that a
nongang motive was just as plausible as a gang motive “where [the driver] could have
been used or duped.”
6
DISCUSSION
I. Sufficiency of the Evidence to Support the Murder Convictions
Appellants contend that the evidence is insufficient to support their murder
convictions. In reviewing their contentions, we view the evidence in the light most
favorable to the judgment, and presume in support of the judgment all inferences the jury
could reasonably draw from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
A. Appellant Vasquez
Appellant Vasquez, who was convicted of first degree murder in the killings of
Hamblett and Wilson, contends simply that the evidence was insufficient to prove that he
was the shooter or even present when the shooting occurred. He is incorrect.
The recorded pretrial statements of Alsovon Jenkins described the shooting, the
route of the Thunderbird after the shooting, the stopping of the vehicle in the area of
Vasquez’s residence, the exiting of the passenger holding a firearm, and the passenger
entering a house. Vasquez was very soon discovered at that location by Detective Keen,
who was led there by a scent dog based on a scent sample taken from the Thunderbird.
Three shell casings fired by the murder weapon were seized from the Thunderbird, two
from the rear passenger floorboard, and one from the outside on a windshield wiper.
They matched the 13 casings discovered at the scene.
Before Detective Keen arrived, Vasquez was present at his residence and told
Marcos Rangel that “he” or “they” had shot three African Americans, and warned Rangel
not to go outside because the police had blocked off the street. After his arrest and before
being released, Rangel told another inmate in a recorded conversation that Vasquez was
the shooter: the “fool [who] had shot them fools was [his] cousin,” who was known as
“Trucha” from “Jokers.”
Finally, in Vasquez’s recorded conversation with Recarte while in custody,
Vasquez implicitly acknowledged that he was the shooter. Recarte asked Vasquez, “Did
7
you tell them that I told you to bust?” Vasquez first repeated the question, “That I told
you to bust? . . . To shoot?” After thus clarifying that Recarte was asking whether
Vaszuez had told detectives that Recarte had told him to shoot, Vasquez said, “Hell no
. . . I’m like, damn. I don’t even know him.” Later, when Recarte told Vasquez, “We
should’ve waited the other day. . . . We should’ve waited dawg,” Vasquez again
implicitly acknowledged his participation with Recarte in the killings: “I know, dude, we
fucked up.”
Taken as a whole, this evidence was more than sufficient for the jury to find that
Vasquez was the one who fired 16 rounds at Hamblett and Wilson, killing them. It was
thus sufficient to prove his guilt of first degree murder.
B. Appellant Recarte
Appellant Recarte, who was convicted of second degree murder on an aiding and
abetting theory, contends that the evidence failed to prove that he intentionally aided the
shooter. The grouping of the 13 shell casings in close proximity at the scene suggested
that the Thunderbird was either stopped or moving slowly when the passenger was
shooting. This evidence alone was sufficient to support a jury finding that Recarte was
intentionally aiding the shooter. Moreover, Recarte’s recorded in-custody conversation
with Vasquez acknowledged his knowing participation in the killings. He urged Vasquez
not to tell detectives that he had told Vasquez to shoot, and he regretted being
apprehended: “We should’ve waited the other day. . . . We should’ve waited dawg.”
The evidence was sufficient to prove that he intentionally aided Vasquez in the killings.
II. Sufficiency of the Evidence to Support the Gang Allegation
Appellants raise several issues relating to the gang enhancement and gang
evidence. None has merit.
8
A. Commission of Killings to Benefit Florencia 13
Appellant Recarte contends that the evidence was insufficient to support the
finding, as required by section 186.22, subdivision (b)(1), that the killings were
“committed for the benefit of, at the direction of, or in association with any criminal
street gang.” We disagree.
The evidence established that appellants Vasquez and Recarte belonged to
Florencia 13. In midday, they drove to the heart of territory claimed by a rival African
American gang, the Nine Deuce Bishops, and targeted two African Americans walking
on the street, at least one of whom belonged to the Nine Deuce Bishops. Appellant
Vasquez fired at them 16 times while appellant Recarte stopped or drove slowly. The
victims were shot from behind. Appellants then drove off. This evidence alone strongly
suggested that appellants acted to enhance the reputation of their gang and their own
reputations within the gang by killing suspected Nine Deuce members in Nine Deuce
territory.
Regardless, the testimony of a prosecution gang expert, based on a hypothetical
question rooted in the evidence of the particular case, is admissible to prove that a crime
qualifies under section 186.22, subdivision (b)(1). (People v. Vang (2011) 52 Cal.4th
1038, 1048.) In the present case, Detective Camarillo, the prosecution gang expert,
testified in response to a hypothetical question mirroring the scenario shown by the
evidence that such a shooting by Florencia 13 members “sends a strong message to the
community . . . [,] the [Nine] Deuce Bishops . . . [and] other gangs,” instilling fear,
enhancing Florencia 13’s reputation, and demonstrating that Florencia 13 “will kill you
whether you are a gang member or not.” Further, the individual gang members who
participated in such a crime would have their individual reputations enhanced within their
cliques. Additionally, in their recorded in-custody conversation, appellants referred to
each other using the name of their gang, agreeing not to incriminate each other: Vasquez
said, “Say it, Florence, I’m Florence gang, nigger,” to which Recarte replied, “Right.”
On appeal, appellant Recarte suggests that in telling Marcos Rangel that the
persons shot were “chongos,” a derogatory term for African Americans, Vasquez was
9
ascribing a racial, not gang, motive to the killings. However, in context, the jury was free
to infer that Vasquez used such a derogatory term not simply for racial reasons, but as an
indication of disrespect for the Nine Deuce Bishops, an African American gang. In short,
the evidence was sufficient to support the jury’s finding that appellants acted for the
benefit of their gang.
B. Opinion in Response to a Hypothetical Question
Appellant Vasquez contends that the trial court erred in permitting Detective
Camarillo to testify, based on a hypothetical question mirroring the facts of the killings,
that such a crime was committed to benefit Florencia 13. It appears that Vasquez’s sole
objection to the prosecutor’s question was that it mentioned the precise location where
the shooting occurred, thus transmuting Detective Camarillo’s opinion into one involving
not a hypothetical gang member, but Vasquez himself. But the fact that the prosecutor’s
question mentioned the location of the shooting was not improper. “It is required, not
prohibited, that hypothetical questions [in gang cases] be based on the evidence. The
questioner is not required to disguise the fact the questions are based on that evidence.”
(Vang, supra, 52 Cal.4th 1041.) Mentioning the location of the shooting did not convert
Detective Camarillo’s opinion into an improper one concerning Vasquez’s personal
mental state.
C. “Primary Activities” of Florencia 13
Appellant Recarte contends that the prosecution failed to prove the required
element that one of Florencia 13’s “primary activities” is the commission of one or more
crimes enumerated in section 186.22, subdivision (e). (See People v. Gardeley (1996) 14
Cal.4th 605, 616-617.) However, Detective Camarillo, who in his 16-year career has had
“hundreds, if not thousands” of contacts with Florencia 13 gang members, testified that
“[s]ome of the primary activities [of Florencia 13] would be assaults, including those
with firearms such as drive-by shootings, possession and distribution and sales of
narcotics, robberies, . . . [and] murder . . . to name a few.” All of these offenses listed by
10
Detective Camarillo qualify under section 186.22, subdivision (e). (See id., subd. (e)(1)-
(4), and (6).) Asked whether he had investigated those crimes involving Florencia 13, he
responded that he had. He also testified to two specific cases involving qualifying crimes
committed by Florencia 13 members (supported by records of the convictions), one
involving member Richard Hernandez convicted of, inter alia, felon in possession of a
firearm committed in March 2007, the other involving member Ernesto Orozco for, inter
alia, assault on a peace officer with a rifle committed in January 2007.
This testimony, taken as a whole, was certainly sufficient to meet the “primary
activities” requirement. (Gardeley, supra, 14 Cal.4th at p. 620.) Appellant Recarte
argues, however, that Detective Camarillo’s testimony was deficient because it contained
no specifics as to the circumstances of Florencia 13’s qualifying crimes, or where, when,
or how Detective Camarillo learned of them. Of course, such details are not necessary to
establish the “primary activities” element, but in any event Detective Camarillo testified
that he had investigated such qualifying crimes committed by Florencia 13, thereby
establishing his own personal knowledge.
D. Testimony About Hernandez’s and Orozco’s Gang Membership
In a related contention, appellant Vasquez contends that the trial court erred in
permitting Detective Camarillo to testify that Richard Hernandez and Ernesto Orozco, the
two persons whom he testified committed qualifying crimes for proof that Florencia 13
engages in a “pattern of criminal gang activity” (§ 186.22, subd. (e)),2 belonged to
Florencia 13. According to Vasquez, the testimony was based on inadmissible hearsay.
2 Section 186.22, subdivision (e) provides in relevant part: “As used in this chapter,
‘pattern of criminal gang activity’ means the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of the following offenses, provided at least one of these offenses occurred
after the effective date of this chapter and the last of those offenses occurred within three
years after a prior offense, and the offenses were committed on separate occasions, or by
two or more persons.”
11
Because Vasquez fails to cite to the record showing that an objection was made in
the trial court, and we find none, the issue is forfeited. (People v. Gutierrez (1993) 14
Cal.App.4th 1425, 1434.) In any event, Detective Camarillo testified that he had had
contacts with Hernandez and arrested him and that he had had contacts with Orozco.
Thus, it appears that his testimony about their gang membership was based on his
personal knowledge of that membership.
E. Testimony About Gang Members’ Habits and Mental Processes
Appellant Recarte contends that Detective Camarillo exceeded his expertise in
testifying that: (1) gang members tend to commit driveby shootings with other trusted
gang members; (2) witnesses in gang crimes sometimes recant prior statements out of
fear of retaliation; (3) for their own safety, gang members are aware of rival gang’s
territory; and (4) it is common for gang members to borrow another gang member’s car
to commit crimes, because it may be too risky to use a stolen vehicle. Recarte contends
that such testimony was inadmissible speculation. However, expert testimony on “the
culture and habits of criminal street gangs,” including gang sociology and psychology, is
a proper subject of expert opinion. (Gardeley, supra, 14 Cal.4th at 617.) Nothing in the
testimony referred to by Recarte is unusual in gang cases, and the testimony falls within
the realm of proper expert opinion testimony.
F. Map of Gang Territories
Without citation to case authority or reference to the record, appellant Vasquez
contends that because Detective Camarillo testified that the Nine Deuce Bishops and
Florencia 13 shared overlapping areas and that gang boundaries frequently changed, the
trial court erred under Evidence Code section 352 in admitting a map that depicted fixed
boundaries for the territories claimed by the two gangs. However, nothing about the map
was misleading. Detective Camarillo testified that the map depicted the general area
claimed by Florencia 13 as of August 2008, and that the location of the shooting depicted
on the map was in the heart of Nine Deuce Bishop’s territory. The map was simply a
12
proper demonstrative exhibit used to illustrate Detective Camarillo’s testimony. The trial
court did not abuse its discretion in admitting it.
III. Refusal to Allow Defense Gang Expert to Hear Camarillo’s Testimony
Counsel for Recarte requested that Estevane be permitted to be present when the
prosecution’s gang expert testified, to assist defense counsel in cross-examination. The
trial court sustained the People’s objection and refused the request, noting however that it
would give defense counsel time to confer with his expert witness after the prosecution’s
gang witness testified.
Without citation to any legal authority, Recarte argues that the trial court erred by
refusing to allow his gang expert, Estevane, to be present in the courtroom to hear the
prosecution’s gang expert’s testimony during trial. He contends this ruling deprived
Recarte of his constitutional right to prepare and present a defense. Recarte asserts that
the gang evidence played “the major role in proving Recarte’s intent to aid and abet
Vasquez.” Recarte argues that if Estevane had been able to hear Camarillo’s testimony,
Estevane would have been able to assist the defense by testifying more precisely and
more comprehensively. More specifically, he would have challenged Camarillo’s
testimony regarding (1) Camarillo’s qualifications as a gang expert, (2) gang recruiting,
(3) whether gang members hold jobs, (4) driveby shootings, (5) validation of gang
crimes, (6) monikers, (7) Recarte’s gang affiliation, and (8) whether the crime here was
committed for gang purposes. We conclude the trial court did not abuse its discretion in
denying the defense request.
The exclusion of witnesses from the courtroom is a matter within the trial court’s
discretion. (See People v. Valdez (1986) 177 Cal.App.3d 680, 687.) Evidence Code
section 777 provides in pertinent part that “the court may exclude from the courtroom any
witness not at the time under examination so that such witness cannot hear the testimony
of other witnesses.” At trial, defense counsel requested that Estevane be present in order
to assist with cross-examination. He offered no further explanation or showing of good
cause to make an exception to the witness exclusion order the trial court had already
13
made. On appeal, Recarte now contends that Estevane’s presence during Camarillo’s
testimony was necessary so Estevane could more effectively counter Camarillo’s
testimony. However, while he details in what respects Estevane’s testimony might have
been more effective, he fails to demonstrate why Estevane needed to be present to hear
Camarillo’s testimony. Defense counsel was permitted time to meet with Estevane
before he testified and presumably shared his notes regarding Camarillo’s testimony.
There simply is no showing that the trial court abused its discretion when it excluded
Estevane from the courtroom during Camarillo’s testimony. This case was not unique,
the testimony Camarillo gave was not technical, and Estevane was not prevented in any
way from challenging Camarillo’s testimony as Recarte now argues it should have been
challenged.
IV. Ineffective Assistance of Counsel by Failing to Adequately Present a Defense
Gang Expert
Recarte next argues that defense counsel failed to ask Estevane his opinion about
whether the shooting, given the factual circumstances under which it occurred, was for
the benefit of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members.
According to Recarte, if counsel had asked this “critical hypothetical,” Estevane would
have testified the perpetrators’ actions were not for the benefit of the criminal street gang.
In a declaration submitted with Recarte’s motion for new trial, Estevane stated that the
Mexican Mafia had issued an edict prohibiting all Southern California Latino gang
members from performing driveby shootings, as they interfered with the Mexican
Mafia’s primary goal of making money from selling drugs and other illegal activities. In
Estevane’s opinion, the shooter who killed Wilson and Hamblett acted spontaneously,
without considering the Florencia 13 gang or the personal danger they would find
themselves in from the Mexican Mafia.
We conclude that, even if we assume without deciding that defense counsel was
ineffective, no prejudice resulted from his failure to ask the specific hypothetical question
14
Recarte now contends was essential. (See People v. Mesa (2006) 144 Cal.App.4th 1000,
1007 [to prevail on claim of ineffective assistance of counsel, defendant must establish
counsel’s representation fell below objective standard of reasonableness and there is a
reasonable probability that but for counsel’s deficient performance the result of trial
would have been different].) First, the evidence of gang motive, though circumstantial,
was very strong: two Florencia members drove to rival territory during the middle of the
day, found suspected African American gang members, shot at them 16 times from
behind while driving very slowly or at a full stop, and then drove away. The very
circumstances of the crime strongly suggest the murders were committed for the benefit
of a gang.
Furthermore, trial counsel did in fact elicit evidence that there was no gang motive
for the killing. Specifically, at trial Estevane testified that as of 1990 the Mexican Mafia
controlled Southern California Latino gangs, including Florencia 13, and ordered it to
cooperate with its rival Latino gangs. One of their primary edicts was that there would
not be any more driveby shootings as they interfered with the gang’s money-making
activities. Counsel asked, “Given that then, are drive-by shootings necessarily the types
of offenses that are done to further the goals of criminal street gangs given this edict from
the Mexican Mafia?” Estevane answered, “Well, no.” Defense counsel elicited similar
testimony from the prosecution’s expert, that Florencia 13 was controlled by the Mexican
Mafia, which prohibited driveby shootings in the 1990’s, and that if a gang member
found himself in state prison he was subject to being disciplined by the Mexican Mafia.
The essential attribute of the shooting was that it was a driveby, and thus Estevane in
essence opined that a member of Florencia 13 committing a driveby shooting would not
be doing so for the benefit of his gang.
Finally, the purported expert opinion that Recarte contends should have been
elicited was internally inconsistent: in support of the new trial motion, the expert opined
on the one hand that “the shooter who killed two men at 88th and Bandera acted
spontaneously,” without considering gang consequences; yet on the other hand, the
expert opined that the shooter acted “out of racial hatred toward the black men,” which is
15
hardly spontaneous given that the hypothetical gang members drove into the territory of a
rival African American gang. Given the evidence that was produced and the internal
inconsistency of the opinion it is contended should have been elicited, as well as the
strength of the gang motive evidence, it is not reasonably probable that had counsel
elicited that opinion the result of the trial would have been different.
V. Lack of Foundation for Dog Tracking Evidence
Vasquez argues that the trial court erred by admitting testimony regarding dog
tracking because whether Edward Hamm was qualified by training and experience to use
the dog to trail suspects was not established, and the particular dog’s reliability also was
not established. We disagree.
In People v. Malgren (1983) 139 Cal.App.3d 234 (Malgren), the court stated that
in each case the proponent of dog tracking evidence must establish the dog’s ability and
reliability, and the proper foundation must also include evidence that the circumstances
of the tracking make it probable that the person tracked was the guilty party. The
following must be shown before dog trailing evidence is admissible: (1) the dog’s
handler was qualified by training and experience to use the dog; (2) the dog has been
found to be reliable in tracking humans; (3) the dog was placed on the track where
circumstances indicated the guilty party to have been; and (4) the trail had not become
stale or contaminated. (Id. at p. 238, disapproved on another ground in People v. Jones
(1991) 53 Cal.3d 1115, 1145-1146.)
Specifically, Vasquez argues on appeal that Hamm (1) did not state by whom he
was trained, other than to say he was trained for one year by experienced dog handlers,
and he did not state their qualifications to teach; (2) he did not state from whom he
received certification; and (3) he did not state whether the dog was tested to see how well
he tracked humans or whether the dog was found to be reliable.
We conclude that the evidence regarding Hamm’s qualifications and the dog’s
reliability was adequate to meet the requirements set forth in Malgren, supra, 139
Cal.App.3d at page 238. Hamm testified that he acquired his first scent dog and began
16
his training in 1988 under the direct supervision of experienced handlers from two
organizations that provide volunteers and dogs to help in search-and-rescue operations:
the Los Angeles Search Dogs, an organization within the Sheriff’s Department, and the
California Rescue Dog Association, a statewide organization. After training for one year,
Hamm was certified to start working with his first dog in search-and-rescue operations in
Los Angeles County and statewide. Beginning in early 1996 he began using his dogs to
do investigative work, at the request of the Los Angeles County Sheriff’s homicide
bureau investigators. At the time of trial Hamm had assisted law enforcement agencies
more than 2,000 times. He was trained in the use of a device called a scent transfer unit
by one of the inventors and developers of the unit, as well as by the Sheriff’s homicide
bureau investigators. Hamm himself taught classes regarding canine scent trailing.
Hamm’s qualifications were undoubtedly satisfactory.
Hamm testified that it takes between one and two years to train a dog as a scent
dog. The readiness of Hamm’s dogs is sometimes evaluated using a formal certification
procedure, although in noncriminal cases the dog may be proven reliable by less formal
means. The dog involved in the search for Vasquez had been used by Hamm in
investigations about 350 times beginning in 2006 until the time of trial. At the time of
the search for Vasquez the dog had been used about 80 to 90 times to conduct searches.
On the dog’s first search, when other search methods had proved ineffective, he
successfully located a runaway teenager in the desert three-quarters of a mile away. It is
readily inferable that the dog had proved himself useful and reliable in trailing human
scent; otherwise he would not have continued to be used for that purpose.
VI. Prosecutorial Misconduct
“‘It is settled that a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom. . . .’ [Citation.]”
(People v. Wharton (1991) 53 Cal.3d 522, 567.) A prosecutor’s conduct violates the
Fourteenth Amendment to the federal Constitution when it infects the trial with such
17
unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo
(1974) 416 U.S. 637, 642-643; People v. Hill (1998) 17 Cal.4th 800, 819.) The
prosecutor generally is given wide latitude in presenting closing argument, and may
provide fair comment on the evidence, state matters of common knowledge or
experience, and argue strenuously for a particular interpretation or verdict. (See People
v. Hill, supra, at p. 819.) Misconduct by a prosecutor that does not render a criminal trial
fundamentally unfair is error under state law “if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the jury.” (People v.
Morales (2001) 25 Cal.4th 34, 44.)
“Generally, a claim of prosecutorial misconduct is preserved for appeal only if the
defendant objects in the trial court and requests an admonition, or if an admonition would
not have cured the prejudice caused by the prosecutor’s misconduct. [Citations.]”
(People v. Ledesma (2006) 39 Cal.4th 641, 726.) “[T]he initial question to be decided in
all cases in which a defendant complains of prosecutorial misconduct for the first time on
appeal is whether a timely objection and admonition would have cured the harm. If it
would, the contention must be rejected [citation]; if it would not, the court must then and
only then reach the issue whether on the whole record the harm resulted in a miscarriage
of justice within the meaning of the Constitution.” (People v. Green (1980) 27 Cal.3d 1,
34, abrogated on other grounds by People v. Martinez (1999) 20 Cal.4th 225.)
Defense counsel did not object to any of the statements appellants now claim
constituted misconduct, and appellants do not argue in their briefs that an admonition
would not have cured any prejudice. While we do not find there was misconduct, we are
satisfied that an admonition by the court in each case would have cured any perceived
harm. Accordingly, the claims of prosecutorial misconduct are not cognizable on appeal.
(People v. Smith (2003) 30 Cal.4th 581, 633.) We reach the merits, however, in order to
demonstrate counsel was not ineffective for failing to object.
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A. Reasonable Doubt
Appellants contend that the prosecutor twice misstated the law regarding
reasonable doubt during closing argument. The prosecutor stated as follows: “And what
is reasonable doubt? In its simplest terms, it simply means this. Is there any other
reasonable explanation for all of the evidence that you have in front of you that you will
be supplied with in the jury room and also have testimony of if you so choose? Is there
any other reasonable explanation for all of that?” He later said, “Well, ladies and
gentlemen, it’s a standard used in every court throughout the United States in criminal
cases. There is no scale. They can’t show you one standard is here, another standard is
here. It’s everything together convincing that there is no other reasonable explanation
when you look at it as a whole.” The prosecutor made the first comment quoted above in
the context of addressing a statement made by the defense gang expert to the effect that
all he had to do was show a small amount of doubt, and that did not have to be
100 percent accurate, to establish reasonable doubt.
Appellants contend that the quoted remarks misstated the law in that reasonable
doubt exists if the jury does not accept as true or reasonably doubts the facts the People
have offered as evidence; the jury need not look to what inferences can be drawn from
the facts they disbelieve or whether any other reasonable inferences exist. The argument
that the prosecutor misstated the reasonable doubt standard is meritless. The prosecutor
properly urged the jury to examine the prosecution’s case as a whole and determine
whether there was any reasonable explanation other than that defendants committed two
murders to benefit their gang. The prosecutor had no duty to tell the jurors that they were
free to disregard evidence they disbelieved or refuse to draw inferences they deemed
unreasonable. That point was obvious from the instructions. Nothing in the prosecutor’s
argument could have remotely misled the jury as to the standard of proof beyond a
reasonable doubt.
In any event, the trial court instructed the jury regarding the reasonable doubt
standard and that it had to accept and follow the law as stated by the court. It further
instructed the jury that if anything concerning the law said by an attorney during
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argument conflicted with the court’s instructions, the jury must follow the instructions.
Under these circumstances it is clear that defendant suffered no prejudice from the
remarks of the prosecutor.
B. Using “We Know” and Vouching for Prosecution Witnesses’ Credibility
Recarte contends that the prosecutor committed misconduct by improperly
expressing his personal opinion and vouching for his witnesses’ credibility by repeatedly
using the words, “we know.” We disagree.
Recarte recounts in his brief on appeal numerous times when the prosecutor used
the phrase, “we know,” and now assigns the use of that phrase as error. The prosecutor
began his closing argument by stating that appellants together executed Hamblett and
Wilson. He continued, “How do we know this is what happened? And the defendants,
why they are responsible for it?” The prosecutor then proceeded to review the evidence
presented at trial, including from the eyewitness, Jenkins, who saw the shots fired,
followed the car, and described to the 911 operator where the car went and where
Vasquez exited the car. He continued by noting the jury saw Jenkins testify. “And what
did you see? You saw a very scared man who couldn’t even admit to you that he didn’t
want to be involved, that he wasn’t concerned for the safety of his family, and that he
wasn’t worried about his son who may be in that area at some point where he has family.
But we know differently.”
The prosecutor then focused on Vasquez, “who got out of the car as soon as he got
a chance by his house, how do we know he is involved? How do we know he is
responsible?” The prosecutor then pointed to Jenkins’s testimony and the evidence that
the scent dog tracked Vasquez to his home. The prosecutor also recalled the appellants’
conversation, recorded while they were incarcerated, in which Recarte asked Vasquez if
he “t[old] them I told you to bust.” The prosecutor noted that “thanks to him, we know
what that means[,] to shoot.” He remarked, “from Detective Camarillo, we know why
this all happened,” i.e., because appellants wanted to benefit themselves and their gang.
He later said, “Now we know that Florencia is a criminal street gang under the law.”
20
Similarly, in discussing the elements required to prove the criminal street gang special
circumstance, he said appellants “have to be active members of Florencia 13 which we
know they were by their acts by what they did, by what they said to each other.” In
responding to Recarte’s assertion he did not know what was going to happen when he
was driving, the prosecutor said, “But what do we know? We know that gang members
are well aware of where their territory is, where their rival’s territory is.” Regarding the
location where shells were found, the prosecutor said, “We know that that gun was
loaded with 16 rounds. We know that defendant Recarte was with another active gang
member. We know that that T-bird had to be at a complete stop [or] moving very slowly
for 13 of the 16 rounds to end up where they did right next to each other.”
Commenting on Estevane’s testimony that the best indicator of whether a person is
in a gang is to ask his family, the prosecutor stated, “As long as I hide it from my family,
from my friends, I am not a gang member. That’s what Mr. Estevane wants you to
believe, and we know that’s not right.” Further, as to Estevane’s testimony that this was
not a gang-related crime, he said, “That is not the case. We know that is not the case. If I
don’t yell out the gang name after or during the crime, it’s not a gang crime. Well,
. . . maybe the defendants did. But unfortunately, the two people who can tell us about it
are dead. So what Mr. Estevane is trying to say is that if the defendants get away with it,
if no one hears it, it didn’t happen. And we know that’s not the case as well.” The
prosecutor then asked, “what more than anything else do we know about Greg[orio]
Estevane?” and then remarked on Estevane’s comment that he only needed to show a
small amount of doubt and that it did not have to be completely accurate. Recarte also
points to the prosecutor’s statement, “So how do we know both of the defendants are
guilty? It’s because of everything, ladies and gentlemen, when you put it [all together],
when you consider everything against each other, they corroborate each other. They
substantiate each other.” In concluding, the prosecutor stated, “I have the burden of
proving this case beyond a reasonable doubt. I accepted it. I took it on. And that weight
is off my shoulders. I have proven this case beyond a reasonable doubt.”
21
The prosecutor did not place the prestige of the government behind a witness by
giving personal assurances of the witness’s veracity, or suggesting that information not
presented to the jury supported the witness’s testimony. (See United States v. Necoechea
(9th Cir. 1993) 986 F.2d 1273, 1276.) The use of “we know” in the prosecutor’s closing
argument “is only improper when it suggests that the government has special knowledge
of evidence not presented to the jury, carries an implied guarantee of truthfulness, or
expresses a personal opinion about credibility. [Citation.]” (United States v. Bentley
(8th Cir. 2009) 561 F.3d 803, 812.) Use of “we know” is not improper when used as the
prosecutor did here to refer to the People’s evidence and to summarize the People’s case.
(Ibid.; see United States v. Younger (9th Cir. 2005) 398 F.3d 1179, 1191 [“we know” not
improper when used to “marshal evidence actually admitted at trial and reasonable
inferences from that evidence”].) Use of “we know” is not plain error if it is used “to
refer the jury to the government’s evidence and to summarize the government’s case
against the defendants.” (United States v. Lahey (7th Cir. 1995) 55 F.3d 1289, 1299.) In
each and every instance of claimed misconduct here, the prosecutor was referring to
evidence presented to the jury and reasonable inferences that could be drawn from the
evidence. Accordingly, we find no prosecutorial misconduct occurred.
C. Commenting on Recarte’s Right to Remain Silent
“Under the rule in Griffin [v. California (1965) 380 U.S. 609], error is committed
whenever the prosecutor or the court comments, either directly or indirectly, upon
defendant’s failure to testify in his [or her] defense.” (People v. Medina (1995) 11
Cal.4th 694, 755.) Here, the prosecutor stated that “the defendants through their
attorneys” would “have the opportunity to speak to all of you,” would ask the jurors to
speculate, and would argue that the case was not proven beyond a reasonable doubt.
Without any analysis, appellant Recarte contends that by prefacing these three remarks
with the words, “the defendants through their attorneys,” the prosecutor was commenting
on appellant’s right not to testify, in violation of Griffin. However, there is no merit to
the argument. The prosecutor was merely saying that the defense attorneys would be
22
making arguments on behalf of the appellants. Under no reasonable construction can the
prosecutor’s remarks be interpreted as comments on appellants’ failure to testify.
VII. Resentencing Because Juvenile Offenders Must Not Be Sentenced to De Facto
Life Sentences
Appellant Recarte was 17 years old when the murders were committed. The trial
court sentenced him to an indeterminate term of 40 years to life. Recarte contends that
this sentence constitutes a de facto life without parole sentence and thus constitutes cruel
or unusual punishment under the Eighth Amendment.
In People v. Caballero (2012) 55 Cal.4th 262, 268, the California Supreme Court,
relying on the reasoning of Graham v. Florida (2010) 560 U.S. 48 and Miller v. Alabama
(2012) ___ U.S. ___ [132 S.Ct. 2455], held that “sentencing a juvenile offender for a
nonhomicide offense to a term of years with a parole eligibility date that falls outside the
juvenile offender’s natural life expectancy constitutes cruel and unusual punishment in
violation of the Eighth Amendment.” The court declined to decide whether such a
sentence for a juvenile convicted of homicide would violate the Eighth Amendment. (Id.
at 268, fn. 4.) But “subsequent appellate decisions have held that an expansive
interpretation of what constitutes a life sentence should also apply in such cases.”
(People v. Franklin (2014) 224 Cal.App.4th 296, 303, citing People v. Thomas (2012)
211 Cal.App.4th 987, 1014-1016, and People v. Argeta (2012) 210 Cal.App.4th 1478,
1482.)
We conclude that appellant Recarte’s sentence does not violate the Eighth
Amendment. First, it is undisputed that Recarte will be eligible for parole at age 57, well
within his natural life expectancy of 72.1 years.3 Thus, “by no stretch of the imagination
3 Recarte, who was 22 years old at the time of sentencing, received credit for 1,928
days in custody, more than five years. Thus, he will be eligible for parole in 35 years
after sentencing, when he will be 57 years old. Recarte apparently concedes that his
general life expectancy is 72.1 years, but argues that “he might only have, at best, fifteen
years left” after his initial parole eligibility. Recarte’s argument notwithstanding, a
15-year time span certainly provides a meaningful opportunity to demonstrate his
23
can this case be called a ‘functional’ or ‘de facto’ [life without the possibility of parole
(LWOP)], and therefore neither Miller, Graham, nor Caballero apply.” (People v. Perez
(2013) 214 Cal.App.4th 49, 57-58 [no de facto LWOP where defendant eligible for
parole at age 47]; cf. People v. Solis (2014) 224 Cal.App.4th 727, 734 [declaring parole
eligibility at age 68, with a life expectancy of age 72, failed to provide meaningful
opportunity for parole].)
Second, assuming for the sake of argument that Recarte’s sentence is the
functional equivalent of a life without parole sentence, in response to Miller, Graham,
and Caballero, the Legislature enacted section 3051, which provides juvenile offenders
with a “meaningful opportunity to obtain release” (§ 3051, subd. (e)) through a “youth
offender parole hearing” (§ 3051, subd. (a)(1)). The Courts of Appeal have been split as
to whether the procedures provided by section 3051 are sufficient to comply with the
mandate of Miller, Graham, and Caballero, and the issue is currently pending before the
California Supreme Court in, among others, In re Alatriste (review granted Feb. 19, 2014,
S214652) and People v. Martin (review granted Mar. 26, 2014, S216139). Without
belaboring the point, we agree with the analysis of those decisions that holds that, in light
of section 3051, “because defendant no longer faces the functional equivalent of life
without the possibility of parole for the crime he committed as a juvenile, he is not
entitled to a new sentencing hearing under Miller or remand under Caballero to
determine the time for parole eligibility.” (Franklin, supra, 224 Cal.App.4th at p. 307;
but see Solis, supra, 224 Cal.App.4th at p. 736 [§ 3051 provides “a ‘“safety net”’ as
opposed to a cure-all for juvenile sentences that violate the Eighth Amendment”].) Thus,
even if Recarte’s sentence were the functional equivalent of a life without parole sentence
(it is not), the procedures of section 3051 comply with Eighth Amendment requirements.
suitability for parole. Recarte argues that studies show that former prison inmates have
shorter life expectancies than unincarcerated persons. We find such statistics far too
speculative to suggest that Recarte’s parole eligibility at age 57 fails to provide a
reasonable opportunity for him to demonstrate within his life expectancy that he is
entitled to parole.
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Finally, we reject Recarte’s contention that the trial court failed to consider his age
and related factors in exercising its discretion in sentencing him. The court stated it had
reviewed and considered the motion filed by Recarte seeking a reduction of his sentence
as being unconstitutionally cruel and unusual punishment. The court also considered the
People’s sentencing memorandum and its attachments. The court was aware that Recarte
was one month shy of turning 18 at the time the crimes were committed. Defense
counsel argued that juveniles like Recarte are immature, make rash decisions, and are
easily influenced by others. She argued the crimes were extremely out of character for
Recarte because he had no significant criminal record, and that he came from a
successful, supportive family. The court listened to statements from his family members
as well.
In stating its choice to run the two indeterminate sentences consecutively, the trial
court did not enumerate every factor it considered. A trial court is not required to state its
reasons for ordering one indeterminate term to run consecutively to another indeterminate
term. Section 1170, subdivision (c), which requires the trial court to “state the reasons
for its sentence choice on the record at the time of sentencing,” applies only to
determinate sentences imposed pursuant to section 1170. The California Rules of Court
state that the sentencing rules which require a statement of reasons “for those matters for
which reasons are required by law” (rule 4.433(c)(5)) “apply only to criminal cases in
which the defendant is convicted of one or more offenses punishable as a felony by a
determinate sentence imposed under Penal Code part 2, title 7, chapter 4.5 (commencing
with section 1170)” (rule 4.403). “Accordingly, a trial court may impose consecutive
indeterminate terms without any statement of reasons whatsoever.” (People v. Arviso
(1988) 201 Cal.App.3d 1055, 1058 [discussing former rules 403 and 433(c)(5)];
superseded by rule on other grounds as stated in People v. Calhoun (2007) 40 Cal.4th
398.) Although in deciding to run Recarte’s indeterminate terms consecutively the trial
court did not specifically state that it took into account each factor related to his youth,
we presume that it considered all of the factors presented to it. (See Cal. Rules of Court,
rule 4.409 [even in the context of determinate sentencing in which the court must state
25
reasons for sentencing choice, “[r]elevant criteria enumerated in these rules must be
considered by the sentencing judge, and will be deemed to have been considered unless
the record affirmatively reflects otherwise”].) Thus, remanding the matter with directions
to the court to exercise its discretion is not required here in any event.
DISPOSITION
The judgments of conviction are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, J.*
We concur:
EPSTEIN, P. J.
MANELLA, J.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
26