People v. Abbate

58 Cal.App.5th 100

272 Cal.Rptr.3d 247

The PEOPLE, Plaintiff and Respondent,

v.Joseph Angel ABBATE, Defendant and Appellant.

A152421

Court of Appeal, First District, Division 3, California.

Filed December 3, 2020

Certified for Partial Publication.^*

Catherine White, San Diego, under appointment by the First District Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Karen Z. Bovarnick, Deputy Attorney General for Plaintiff and Respondent.

Fujisaki, J.

A jury found defendant Joseph Angel Abbate guilty of second-degree murder ( Pen. Code, § 187¹ ), conspiracy to commit a felony by active street gang participants (§ 182.5), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). On appeal, defendant argues: (1) the trial court erred by admitting evidence of a prior murder under Evidence Code section 1101, subdivision (b) ; (2) section 182.5, which criminalizes participation in a criminal street gang conspiracy, is void for vagueness and violates the principle of personal guilt; (3) Senate Bill No. 620 requires a remand to allow the court to exercise its sentencing discretion; and (4) Senate Bill No. 1437 requires reversal of his murder conviction.

In the published portion of this opinion, we reject defendant's challenges to section 182.5. In the unpublished portion, we conclude defendant's contentions regarding the prior murder evidence and Senate Bill No. 1437 are without merit but determine a remand is necessary in light of Senate Bill No. 620.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged defendant, Steven Cruz, and Ricardo Ochoa with the murder of Eduardo Ochoa ( § 187, count 1).² The People alleged firearm enhancements (§ 12022.53, subds. (b)–(e)(1)) as to each defendant, and also alleged they committed the murder for the benefit of, at the direction of, and in association with a criminal street gang, namely, "Da Bay's Grimiest" also known as "DBG" (§ 186.22, subd. (b)(1)). The People additionally charged defendant and his co-defendants with conspiracy to commit a felony by active street gang participants (§ 182.5, count 2), and charged defendant alone with being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 3). As to the firearm possession count, the People alleged defendant committed the crime for the benefit of, at the direction of, and in association with DBG (§ 186.22, subd. (b)(1)).

Defendant's first trial took place in 2014. Ultimately, the jury could not reach a verdict on the murder charge, resulting in a mistrial on that charge. Moreover, while the jury found defendant guilty of the remaining counts and found true the gang enhancement (§ 186.22, subd. (b)(1)) accompanying the firearm possession count, the court granted defendant's motion for new trial as to the gang conspiracy count (§ 182.5). In sum, after the first trial defendant stood convicted of the section 29800 count with the attendant gang enhancement.

A second trial took place in 2016. The jury found defendant guilty of second-degree murder and found true the attendant gang enhancement (§ 186.22, subd. (b)(1)) and firearm enhancement (§ 12022.53, subds. (d), (e)(1)). The jury also found defendant guilty of the section 182.5 gang conspiracy count. The court sentenced defendant to a term of 15 years to life in prison for the murder count, plus a consecutive 25 years to life term for the attendant firearm enhancement. The court also sentenced defendant to a term of 15 years to life for the gang conspiracy count, but stayed its execution pursuant to section 654. Finally, the court sentenced defendant to a consecutive two-year term for the firearm possession count, plus three years for the attendant gang enhancement.

The following summary of the evidence at the second trial is not comprehensive but provides the necessary background and context to the issues raised on appeal.

In 2010, a child was shot through the front door of a house in Contra Costa County. That address belonged to defendant, and the minor victim (who survived) is related to both defendant and co-defendant Steven, who is defendant's cousin. Defendant was at the house at the time of this shooting.

On April 11, 2012, around 12:30 p.m., B.O. was at home in San Pablo with her son, Eduardo.³ Eduardo was affiliated with the "Norteno" street gang. B.O. heard a loud noise, like a "boom." Looking out of a window, she saw a small white car, like a Honda or a Toyota, "full of kids" looking at her house before driving away. She found Eduardo bleeding with a large wound in his chest, and he died in her arms. During their investigation, the police located one expended cartridge case near the sidewalk in front of the home and, during the autopsy, recovered a bullet from the victim's chest. B.O. identified co-defendant Ricardo in a photo line-up as one of the people associated with the white car.⁴

Brian G. was the prosecution's principal witness.⁵ Brian G., who was in his early twenties at the time of trial, testified he was a member of a gang called "Varrio Frontera Locos" or "VFL" in his early teens and a member of the DBG "tagging crew," but by his mid-teens he was not in or associated with any gang. Brian G. had known defendant since middle school.

The night before Eduardo's murder, Brian G. went to a party at the home of defendant's aunt in Richmond, where he hung out with defendant (also known as "Grams"), Ricardo (also known as "Rebz"), and Steven. Brian G., Ricardo, Steven, defendant, and some women ended up going to a hotel around the border of Richmond and El Cerrito in a white Toyota belonging to Brian G.’s then-girlfriend. They left the hotel the next day at around 10:00 a.m. Ricardo drove the men around in the white car, and they eventually went back to the home of defendant's aunt. There the men left Brian G. alone in the living room for 10 to 15 minutes before they left again, purportedly to buy alcohol and get money at Ricardo's sister's house. Ricardo said he wanted to drive, and Steven "called shotgun." Brian G. sat behind the driver and next to defendant.

The men stopped at a liquor store, then drove by a house where defendant loudly said, "That's him" and " ‘That's E.’ " When defendant said this, the only person Brian G. could see was a male Hispanic who looked like he just stepped out of a house. After defendant said this, Ricardo—without prompting—stopped the car. Brian G. heard someone say, " ‘He's a Dub boy,’ " then, within seconds, Steven exited the car, walked within four to five feet of the male, and started "banging on" him by aggressively asking him if he was a "Dub boy." The male looked afraid and denied being a "Dub boy." After about a minute, Steven pulled out a gun and pointed it at the male, then Ricardo said, "Shoot that [racial slur]," and Steven shot him once in the chest. At this point the male ran back into the house, and Steven got back into the car. Ricardo drove them in a loop through Concord, before returning to Richmond.

Brian G. testified that defendant did not show any surprise or disapproval at what Ricardo said, nor surprise at Steven pulling a gun on the man, nor upset that Steven shot him. And during the drive afterward, defendant, Steven, and Ricardo appeared to be happy, listening to music and dancing like they "made a score." Brian G. acknowledged that during an early videotaped police interview, he told the police that after the shooting the other man in the back seat—i.e., defendant—said something like, "What the F is going on." When asked what he meant by this, and if this was an expression of surprise, Brian G. explained defendant was "like happy, shocked. You know, like he's the one that pointed him out."

Brian G. testified that during the drive he asked the others why the victim was killed. Defendant responded that the victim had sent someone to kill him but the person mistakenly shot his niece in the face "through the window or something."⁶

Brian G. also testified that when Steven seemed bothered after the shooting, defendant told Steven not to worry, and the "first time" he would get paranoid, but it would be okay. Defendant then talked about his own "first time" killing someone. Defendant said he was on the streets looking for "suckas" (meaning rival gang members), found someone on Dunn Avenue in Richmond, jumped out and said " ‘DBG,’ " then started shooting and the victim who got shot started screaming " ‘Darkie.’ "

Brian G. also testified that, during the drive, defendant took a phone call and told the person on the phone that Steven " ‘got his feet wet.’ " Phone records showed that about 20 minutes after the shooting, defendant's phone sent someone a text message stating, "Watch out for them suckas. It's hot." According to the prosecution's gang expert, this was an alert to other gang members that a violent act was committed and to be on alert for retaliation from rivals.

The day after the shooting, Brian G.—who was still hanging out with defendant—drove under the influence of alcohol, got into a car accident, left the white car at the scene, and got a ride back to his then-girlfriend's house. Brian G. testified this was the last time he had contact with defendant.

Several weeks later, the police arrested Brian G. for drunk driving and for a hit-and-run and talked to him about the shooting. Brian G. told the police numerous untrue stories before telling them that he was present during the shooting, that Steven was the shooter, and that Ricardo was the driver. Even after this, however, he remained too scared to identify defendant. The day after his arrest, Brian G. finally identified defendant as the fourth person involved in the shooting by writing defendant's name on a piece of paper. The officer who took the identification testified that Brian G. was too scared to say defendant's name out loud and...