PEOPLE v. SOLANO
Court of Appeals of California, Second District, Division Seven.
Filed May 16, 2011.
2. The First Trial
a. The People's evidence
A search warrant for the home in which Solano and members of his extended family were living was obtained based on information Solano, a suspected member of the Northside Bolen Parque gang, was selling illegal drugs from the residence. At 5:00 a.m on February 27, 2008, 13 officers of the Baldwin Park Police Department's special response team and additional police personnel executed the warrant. Officers knocked on the front door and announced their presence in Spanish and English. After hearing what sounded like someone running away from the door, officers began to forcibly enter the home. Because officers were having a difficult time prying open the metal security door, another officer broke a nearby window to cause a distraction and to see into the residence while officers continued making announcements. About 10 seconds later, as officers were entering through the front door, Solano fired a gun at them. Officers returned fire, hitting Solano in the chest and neck.
Eight people, including children, were in the home when the search warrant was executed. Guillermo Solis, the long-time boyfriend of Solano's mother, Leticia, and father of two children with her, testified he was sleeping in the living room with Leticia and their son when he was awakened by pounding on the door. After the window broke he saw police officers wearing uniforms and helmets and heard them say, "Police, open the door." Solano's younger sister, Crystal Solano, testified she was sleeping in one of the two bedrooms with three people when she was awakened by banging on the doors and windows and screaming. Crystal ran into the living room to see what was happening, and her mother was screaming Guillermo's name. Crystal heard officers yelling, "search warrant, search warrant." Crystal began pulling her mother toward the bedroom when the shooting began.
Officers recovered a revolver from under Solano's leg, 400 grams of marijuana from the bedroom, two scales and two boxes of plastic sandwich bags. Baldwin Park Police Officer Mike Hemenway, one of the officers who executed the search warrant and an expert on possession of narcotics for sale, opined, given "the packaging material, the scales, the amount of marijuana, and the firearm," the marijuana, valued at between $350 and $6,000, was possessed for sale. Officer Hemenway explained the purpose of the firearm was "to protect [Solano] from people that want to steal from him or the police."
Baldwin Park Police Detective Mark Adams, also a member of the special response team, testified both as a participant in the incident and as an expert on criminal street gangs. In addition to testifying to the primary criminal activities of Northside Bolen Parque (vandalism, theft, robbery, witness intimidation and violent crimes), the gang's alliance with the Mexican Mafia and evidence of Solano's membership in the gang),3 Detective Adams opined, "The act of shooting at a police officer, without a doubt, has an effect on [Solano's] status within the gang." Detective Adams explained, "Each and every time that a police officer is assaulted by a member of a gang, the members of that gang hold that individual in higher esteem. They know that he's ruthless, that he's basically instilled in the community a fear that the gang is willing to assault anybody." "It allows the gang to operate with impunity because they definitely don't fear that the community is going to call the police when they are that ruthless. They are willing to take out a member of the community if they are willing to take out a police officer." Detective Adams identified photographs of graffiti taken near Solano's home approximately nine months after the incident. One photo stated, "FUCK THE PIGS!" with an NSBP notation near it; another photo taken near the first had graffiti including, "FUCK THE COPS."
1. For simplicity on occasion this opinion uses the shorthand phrase "to benefit a criminal street gang" to refer to crimes that, in the statutory language, are committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, § 186.22, subd. (b)(1); see People v. Jones (2009) 47 Cal.4th 566, 571, fn. 2.)
Statutory references are to the Penal Code unless otherwise indicated.
2. In his opening brief on appeal, relying in part on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1079 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, Solano had also argued there was insufficient evidence to support the criminal street gang enhancements. After the People had filed their respondent's brief, the Supreme Court held in People v. Albillar (2010) 51 Cal.4th 47, 65 that the Garcia and Briceno opinions had incorrectly "construed section 186.22(b)(1) to require evidence that a defendant had the specific intent to further or facilitate other criminal conduct—i.e., `other criminal activity of the gang apart from' the offenses of which the defendant was convicted." In light of Albillar, in his reply brief Solano abandoned his challenge to the sufficiency of the evidence to support the criminal street gang enhancements.
3. Evidence of Solano's membership in the gang included testimony and photographs of gang graffiti in the garage at Solano's home, graffiti tagging by "Sinner," which was the gang moniker used by both Solano and Oscar Solano (the record is unclear whether Solano was "Lil Sinner" or just "Sinner") and a baseball cap recovered from Solano's garage with the initials NSBP (for Northside Bolen Park) that Detective Adams had seen Solano wearing in June 2007.
4. Solano's girlfriend, Renee Miller, testified her mother had offered to help them move to Washington to raise the baby and Solano had agreed to go.
5. On cross-examination Solano testified most of the Northside Bolen Parque gang members have guns.
6. Solano had also moved to bifurcate the criminal street gang allegations before the first trial; that motion was denied.
7. The People had dismissed the criminal street gang allegation relating to the possession-for-sale offense before the retrial.
8. Solano does not dispute multiple firearm-use enhancements were properly imposed for the separate victims of the attempted murder and aggravated assault offenses. (See People v. King (1993) 5 Cal.4th 59, 78 [it is "settled that section 654 does not apply to `crimes of violence against multiple victims'"]; People v. Oates (2004) 32 Cal.4th 1048, 1063-1064.)
9. Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
10. We review the trial court's order denying a motion to bifurcate for abuse of discretion. (See People v. Hernandez, supra, 33 Cal.4th at p. 1048.)
11. The Supreme Court has recognized that, even if a trial court does not abuse its discretion in denying a motion to bifurcate based upon the showing made at the time of the motion, the admission of criminal street gang evidence may nevertheless result in such gross unfairness that the defendant is deprived of due process of law. (See People v. Mendoza (2000) 24 Cal.4th 130, 163; People v. Burch (2007) 148 Cal.App.4th 862, 867.) However, when the gang evidence is admissible for purposes other than the gang enhancements and fully intertwined with the underlying facts—as it was here—a defendant's ability to satisfy the high burden to demonstrate prejudice is rare. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050 ["[t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled"].) Based on our review of the record, including the limiting instruction cautioning the jury it could not consider the gang evidence to prove Solano was a person of bad character or had a disposition to commit crimes, Solano cannot meet this high burden.
12. Solano has forfeited the additional arguments Detective Adams's testimony regarding Solano's intent did not meet the requirement for admissibility under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C.Cir. 1923) 293 F. 1013 and was predicated upon inadmissible profile evidence and hearsay. Although Solano had raised these objections in his first motion in limine to bifurcate the gang allegations, he did not renew them in his motion before the retrial or obtain a ruling or stipulation that objections made in the first trial need not be renewed. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1306 ["`[w]hile it may not be necessary to renew an objection already overruled in the same trial [citation], absent a ruling or stipulation that objections and rulings will be deemed renewed and made in a later trial [citation], the failure to object bars consideration of the issue on appeal"].) Indeed, the trial court cautioned Solano's counsel to make any arguments he believed were meritorious even if not successful at the first trial: "The Court of Appeal[] wants you to make appropriate motions just in case, even if you came here, I was dumb enough to forget the ruling that I made the last time. And you need to protect, obviously, Mr. Solano's rights."
13. Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
14. The book, an autobiography, recounts how Merlin Carothers went from serving in the military to becoming a criminal, to finally finding salvation and redemption in religious teachings. As described on the back cover, "PRISON TO PRAISE is not about a prison with bars, but about a prison of circumstances—and how to be set free!"
15. Section 1089 states in part, "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."