NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. BENKE, Acting P.
– A gang member with a felony conviction was arrested Thursday in Vista following a foot chase that ended in a scuffle with deputies, authorities said. Deputies from the Vista Gang Enforcement Team stopped a Cadillac Escalade with three people inside near Olive Avenue and North Melrose Drive at about 5:05 p.m., said San Diego County Sheriff’s. Feb 17, 2011 - Vista Homeboys Gang Members Prison. On the surface, San Diego may not seem like a hotbed of gang activity. Our younger population is.
A jury found defendant Sergio Ramirez guilty of attempted first degree premeditated murder (Pen. Code, §§ 187, subd. (a), 189 & 664; 1 count 1) and assault with a firearm (§ 245, subd. (a)(2); count 3).
As to both counts, the jury found true defendant committed the offenses 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 criminal conduct by gang members. (§ 186.22, subd. (b)(1).) Further as to count 1, the jury found true that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd.
(a)); that in the commission and attempted commission of this offense, defendant 'intentionally and personally discharged a firearm' (i.e., a handgun) (§ 12022.53, subd. (c)); that defendant was a principal in this offense and, in connection with this offense, at least one principal personally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); that defendant 'intentionally and personally discharged a firearm,' causing great bodily injury to the victim (§ 12022.53, subd. (d)); and that defendant was a principal in this offense and, in connection with this offense, at least one principal personally used a firearm (§ 12022.53, subds. (d) & (e)(1)). Finally, as to count 3, the jury also found true defendant personally inflicted great bodily injury upon the victim, who was not an accomplice (§ 12022.7, subd. (a)), and personally used a firearm (i.e., a handgun) (§ 12022.5, subd.
The court sentenced defendant under count 1 to life with the possibility of parole, plus 25 years to life for the firearm enhancement and stayed under section 654, subdivision (a) punishment under count 3 and the remaining enhancements. Defendant on appeal contends there is insufficient evidence in the record to support the jury's true findings on the section 186.22 gang enhancements. He further contends the court prejudicially erred when it sustained a prosecution witness's claim of privilege under Evidence Code section 1040; when it admitted certain items of evidence under Evidence Code section 352; and when it imposed, but stayed, on count 1 a five-year sentence for the criminal street gang enhancement.
Finally, defendant contends he was denied due process based on the cumulative error doctrine. As we explain, we agree the court in connection with count 1 erred when it imposed, and stayed pursuant to section 654, subdivision (a), the five-year enhancement under subdivision (b)(1)(B) of section 186.22. Instead, the court should have imposed the 15-year minimum parole period under subdivision (b)(5) of this statute, inasmuch as defendant was sentenced to a life term on count 1. We conclude the court also erred when it imposed and stayed in connection with count 3 the five-year enhancement under subdivision (b)(1)(B) of section 186.22. Instead, the court should have imposed (and stayed) the 10-year enhancement under subdivision (b)(1)(C) of section 186.22 because the felony in count 3 was violent as defined by section 667.5, subdivision (c). In all other respects, we affirm the judgment of conviction.
FACTUAL OVERVIEW Victim Louis Cervantes testified defendant shot him at close range on January 3, 2013. At the time of the shooting, Cervantes and defendant had known each other for more than 10 years, and, up until the shooting, Cervantes believed their relationship had been 'good.' Shortly before the shooting, defendant introduced Cervantes to a companion defendant called 'Big Homie.'
Cervantes did not know this individual. Cervantes came to know defendant through defendant's older brother, who went by the monikers 'Chuy,' 'Toro' and 'Torito.'
Cervantes, defendant, and defendant's brothers were all members of the criminal street gang Varrio Fallbrook Locos (VFL). Cervantes joined the gang when he was about 13 years old. At the time of the shooting, he went by the moniker 'Toker' and defendant went by the moniker 'Hunger.' Cervantes testified that on the day of the shooting, he and a friend, Fernando Anguiano, traveled in Cervantes's white Chevy pickup truck to another's friend's house in De Luz, where they intended to build a greenhouse to grow marijuana to smoke and sell. About 30 or 40 minutes after they started building the greenhouse, a woman named Guadalupe yelled to Cervantes from the house below that 'people' were looking for him. Cervantes in response took a bicycle from the back of his truck and rode down a hill to the house. When he arrived, Cervantes saw defendant and the man he came to know as the Big Homie.
Cervantes testified defendant first asked to borrow his pickup. When Cervantes refused because defendant did not have a driver's license, defendant next asked for a ride 'back to town.'
At the time, Cervantes was not worried about being contacted by defendant and Big Homie because Cervantes believed he and defendant were friends. Cervantes agreed to give them a ride but arranged to meet them at another location on the property so that the men would not see the greenhouse. Although Anguiano warned Cervantes the two men appeared 'up to something' when Cervantes returned for his pickup, Cervantes testified he was not worried because of his friendship with defendant. Defendant sat in the front seat and Big Homie in the backseat as they rode into town in Cervantes's pickup. Cervantes told defendant he had smoked 'weed' earlier that day, and defendant, in response, told Cervantes he too wanted to smoke marijuana. Big Homie also mentioned he had 'just gotten out' (of prison). As they drove, defendant changed his mind and asked Cervantes to drop them off at a friend's house instead of in town.
However, when they were close to defendant's friend's house, defendant again changed his mind and asked to be driven into town. At some point during the drive, defendant asked Cervantes to stop the pickup because defendant had to urinate.
Cervantes agreed and stopped his pickup at a location where he and defendant had smoked 'weed' in the past. Defendant next got out of the truck, and Cervantes saw Big Homie open the passenger door but stay seated in the truck. Cervantes lit a cigarette and, while waiting for defendant, he 'heard the cocking of a gun.'
Cervantes saw defendant standing a few feet away, pointing a gun at him. Cervantes testified that the gun was a semiautomatic.38. 40 Glock; that immediately before defendant fired, defendant said '`dispensa,' which Cervantes testified meant 'my bad,' 'sorry'; and that defendant then pulled the trigger. Cervantes testified that he 'hunched over' in the driver's seat of his car after being struck by the first bullet.
After he was struck by a second bullet, Cervantes tried 'throwing his truck into drive' but could not do so before he was hit by a third bullet. Cervantes then sped off in his pickup. However, he began to lose feeling in his arms and legs shortly thereafter. Cervantes lost control of the pickup and struck a wall that bounced him to the opposite side of the road. Fortunately for Cervantes, a passing motorcyclist stopped and provided assistance. Because Cervantes could not ride on the motorcycle, they waited for a passing car. The driver of the car took Cervantes to a Fallbrook hospital.
Cervantes was later taken by helicopter to another hospital, where he remained for about a week. While in the hospital, Cervantes was interviewed by sheriff's deputies. Cervantes informed the deputies he had been shot by defendant. Although deputies showed Cervantes several photographs, he was unable to identify Big Homie.
Nonetheless, Cervantes noted in gang culture a person known as 'Big Homie' typically meant that person has 'done work for the neighborhood. And he basically has to be respected.' When asked what he meant by putting in 'work,' Cervantes testified it meant this individual has done things for the gang, like selling drugs, making money for the 'rest of the Big Homies,' and putting in work against rival gangs. When asked why Big Homie was with defendant on the day of the shooting, Cervantes testified it was to make sure defendant 'carried out what he was supposed to do,' namely shoot Cervantes.
Cervantes also testified that, in gang culture, there was a general understanding among gang members that there must be a witness when a gang member is 'putting in work' for the gang. Cervantes admitted that when first interviewed by deputies, he told them he and defendant met up at a different friend's house. Cervantes testified he changed his story to deputies because he wanted to protect his other friend, where he had planned to build a greenhouse to grow marijuana, 'because obviously illegal stuff was going on there.' Cervantes testified that he was no longer a member of VFL; that he decided to leave VFL while in prison, after he was arrested in 2009 for evading a police officer and for residential burglary; and that he made a decision to leave the gang while in prison because he just got in more trouble for being a part of the gang, none of his 'so-called friends were really there for him,' and he wanted to be there for his own son.
With about five or six months of his prison term remaining, Cervantes told a prison guard he wanted to go to 'S.N.Y,' which Cervantes testified stood for 'special needs yard' and which was the same as protective custody. Inmates in protective custody are kept separate from the general jail population because, according to Cervantes, people in the general population would attempt to harm inmates in protective custody because such inmates are perceived to be cooperating with law enforcement. Cervantes testified a criminal street gang who believed one of its members was cooperating with law enforcement would 'try to do whatever it can to take that member out.' While in protective custody awaiting his release, Cervantes told law enforcement/correctional officers what he knew about VFL. Cervantes was released from prison in late April 2012. Cervantes testified that, after the January 2013 shooting, the district attorney's office provided him financial assistance and helped him move out of Fallbrook, where he had lived his entire life.
Cervantes was relocated in order to keep him 'out of harm's way.' In May 2013, however, Cervantes moved back to Fallbrook after he broke up with his girlfriend. The district attorney's office in response told Cervantes he no longer was eligible to participate in the witness protection program or receive any financial support because a condition of being in the program was he remain out of Fallbrook. Cervantes testified he was the victim of a second shooting in May 2013 while he was moving some of his 'stuff' into his grandmother's Fallbrook house. About 7:00 or 8:00 p.m.
That day, Cervantes saw two young individuals at the corner of his grandmother's house. Cervantes recognized both individuals as the younger brothers of two veteran VFL members: Armando and Chucky. Chucky's little brother was called 'Little Chucky,' and the other individual with Little Chucky was Christopher Flores, the younger brother of Armando. Cervantes testified Little Chucky was then trying to join VFL.
Cervantes went outside and asked Little Chucky and Flores why they were 'scoping out' his grandmother's house. (Italics omitted.) In response, they told Cervantes he had 'fucked up' by testifying against defendant and demanded Cervantes go with them to an area where VFL gang members typically hung out. (Italics omitted.) Cervantes refused. As they continued to argue, Cervantes noticed Flores had his hands in the waistband of his pants. The two individuals left after Cervantes's mother intervened. Later that evening, Cervantes returned to his grandmother's house.
Sometime after 10:00 p.m., while outside moving suitcases and clothes into his mother's car, Cervantes saw Flores approach from across the street. Angered, Cervantes went around the car and asked him, 'What's up'? Flores in response said, 'This is what's up' as he reached into his waistband and pulled out what Cervantes described was a 'big 'ol revolver.' (Italics omitted.) Cervantes testified he dove over a brick wall just as Flores began to fire the revolver.
Cervantes next ran toward the back of his grandmother's house, hopped the fence, and alerted a neighbor who allowed Cervantes to hide inside. When asked why Flores targeted him, Cervantes testified that once he 'gave up' defendant to law enforcement, the gang's mission was to 'take him out before he testified.' Cervantes noted when a gang punishes one of its members it is called 'checking.' According to Cervantes, a gang member needs permission from the gang's 'older homies' before that member can 'check' another member who has 'messed up.' Cervantes noted that he was in fact 'checked' by VFL and that sometimes the order to 'check' someone comes from gang members in prison.
When asked why VFL gang members wanted to 'check' him, Cervantes stated it was likely because he dropped out of the gang and went into protective custody while in prison. Cervantes testified that while in prison, he heard 'rumors' that certain VFL members were upset with him for another reason. Shortly before his 2009 arrest, Cervantes had raised money to buy a tombstone for a 'little homie' that had been shot and killed in Vista. Although Cervantes had paid for the tombstone, he was never able to pick it up because of his arrest. Cervantes heard some VFL members believed he had kept or spent the money raised rather than purchase the tombstone. Cervantes also testified that members of VFL might have been upset with him because after he got out of prison, he sold marijuana but did not pay 'taxes'—or a percentage of the profit from the sales—to the gang as requested by one of its members. Sergeant (then Detective) Jeffery Lauhon with the San Diego County Sheriff's Department testified on the day of the January 2013 shooting he was dressed in 'plain clothes' and was driving an 'unmarked' county vehicle about 1:00 p.m.
In the De Luz area when he came upon two Hispanic males who appeared to be in their early 20's walking on the side of a road. Detective Lauhon did not contact the males. As he continued driving, Detective Lauhon rounded a corner and came upon a white Chevy pickup that had crashed into a chain-link fence. Detective Lauhon noted that the pickup had sustained front-end damage and a broken rear axle and that there was damage to the fence about 30 feet up from where the truck was stopped. On inspection, Detective Lauhon found the pickup's engine running but the truck empty. As Detective Lauhon waited for backup to arrive, he was informed the driver of the pickup had been shot and taken to a hospital.
As the area was secured, another deputy informed Detective Lauhon of the possible location of the shooting, where deputies found tire marks in the dirt, shoe prints, and a bandana lying on the ground. Defendant's fingerprint was subsequently found on the passenger door of Cervantes's truck. Witness Julio Alonso testified that he was working in De Luz on the day of the January 2013 shooting. While preparing his lunch in a different location with his coworker, Alonso heard about three gunshots and, less than a minute later, saw a white truck go by traveling 'really fast.' After Alonso and his friend ate their lunch, they went back to work, where they were contacted by law enforcement.
![Vista homeboys gang members in prison lyrics Vista homeboys gang members in prison lyrics](http://tribkswb.files.wordpress.com/2013/10/ruben-cepeda.jpeg)
Alonso and his friend were informed by law enforcement they should be on the lookout for two men who 'were armed and dangerous.' Alonso then noticed a chain on the gate, which had been locked, was broken. Alonso testified at the time he did not think much about the broken chain. However, after law enforcement left, Alonso went to the area where he had been working before lunch and found his truck missing. Because the area was rural, Alonso had left his keys in the truck. Alonso testified he next borrowed his friend's truck, found law enforcement, which were still investigating the shooting, and reported his truck stolen.
Alonso's truck was subsequently located about 15 to 20 minutes from the scene of the shooting, after a report of a vehicle fire. According to Alonso, fire department responders had found his truck 'fully' ablaze. Detective William Yavno with the San Diego County Sheriff's Department testified he interviewed Cervantes at a Fallbrook hospital shortly after the shooting. Although Cervantes was in and out of consciousness, Cervantes was able to tell Detective Yavno that defendant had shot him; that he had been shot because he 'wanted out of the life' and because of a 'drug deal'; and that he had been shot after they had stopped at a store 'to buy cigarettes or. (Italics omitted.) After the interview, Detective Yavno reported to his sergeant that the shooting 'had the elements of a gang case.'
Because we reached the merits of the issue, we deem it unnecessary to address defendant's alternate contention that he allegedly received ineffective assistance of counsel in connection with this issue. In any event, as we have noted it appears defense counsel made a (wise) tactical decision not to recall Investigator Rudisell as a witness and ask him about who ordered the green light, in light of the representation by the prosecutor that Investigator Rudisell would have testified it was defendant's brothers, who also were VFL gang members.
(See People v. Mai (2013), 1009 noting that in 'examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance'.). Defendant's final contention is that the cumulative effect of the alleged errors discussed ante deprived him of a fair trial and requires reversal of the judgment. 'A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' (See People v. Hill (1998), 844.) Here, because we conclude that there were no errors or even if we presumed such errors, that they were harmless, we further conclude the cumulative error doctrine does not apply in this case.