Filed 9/15/15 P. v. Godoy CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B256013

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA127686)
         v.

ROGELIO ANGEL GODOY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles, Gary Tanaka,
Judge. Affirmed with directions.
         Benjamin Owens for Defendant and Appellant, Rogelio Angel Godoy.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.




                                   _______________________________
       Rogelio Godoy appeals from his conviction after trial by jury on two counts of
criminal threats. Godoy asserts that the trial court erred by allowing the introduction of
evidence concerning his gang affiliation, and by imposing certain fines. We agree that
the fines must be corrected, and otherwise affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND
       Godoy was charged with corporal injury to a cohabitant (Pen. Code, § 273.5, subd.
(a)(Count 1)1 and criminal threats (§ 422, subd. (a)(Counts 2 and 3.) Personal use of a
weapon was alleged as to Count One, and a prior conviction of a serious and violent
felony (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony conviction
(§ 667, subd, (a)(i) and four prior prison terms (§ 667.5, subd. (b).) were also alleged.
The case was tried to the jury, and, in November, 2013, the jury returned verdicts of
guilty on Counts 2 and 3. The court declared a mistrial as to Count 1. In March, 2014,
Godoy admitted the prior conviction allegations. The court sentenced Godoy to a term of
14 years, four months, and ordered, among other fines and fees, a $300 restitution fine
(§ 1202.4, subd. (b), imposing and suspending an equal parole revocation fine
(§ 1202.45).)
                                 TRIAL TESTIMONY2
Helen Barrera
       Helen Barrera identified the defendant as her daughter, Gina Morales’s, boyfriend,
indicating he used the name Little Raskal.3 She testified that she believed the defendant


1      All statutory references, unless otherwise noted, are to the Penal Code.

2        Evidence not directly relevant to the issue on appeal has been omitted, including
prior physical disputes between Morales and Godoy. Desiree Morales, Gina Morales’s
sister, testified to an earlier incident between her sister and Godoy, as did Deputy Lopez
and Officer Dumster. Elsy Turcios, who had previously been in a relationship with
Godoy, testified to an incident of physical violence in 2002. Gail Pincus testified as an
expert on battered woman’s syndrome.
3      She described a tattoo on her daughter’s chest as “Little Raskal, 18th Street.”

                                              2
was affiliated with the 18th Street gang, based on his tattoos, and markings on his
belongings; she further indicated that, at a time when he was staying in her house, he had
a monitor on his leg and was visited by his parole officer.
       Barrera described the events of October 17, 2012, when the defendant came to her
house in the early evening; she, her son, and Gina were present. She testified that she
told Godoy “what the fuck are you doing here? You’re not welcome here” and that he
responded “Fuck you, whore. Give me my fucking shit. I’m coming back to kill you
bitches.” Godoy then turned to leave, with his hand at his pocket; it appeared to Barrera
that he had a gun in his pocket. Godoy broke two windows as he left. Barrera testified
that she was afraid because she was aware Godoy had beaten her daughter previously,
and because of his gang affiliation and use of guns. She was also aware that Godoy had
beaten, and held at gunpoint, a prior girlfriend. Barrera called 911 and reported the
events.
       Godoy returned to Barrera’s house at 3 a.m.; she was frightened at that time
because he had said he was coming back to kill them. Barrera called 911 a second time.
       Barrera testified that she had been convicted of two felony offenses, the last in
1994. She also testified that she had a tattoo on her hand saying 18th Street, and that the
father of her daughters was an 18th Street member.

Gina Morales
       Gina Morales testified that Godoy, also known as Little Raskal, had been her
boyfriend since January, 2012. She knew him to be a member of the 18th
Street gang; she also “hung around” with that gang and was a gang member.
       On the evening of October 17, 2012, she was at her mother’s house, when Godoy
knocked at the door. He asked to speak with her mother; her mother responded with
profanity and told him to leave; as he was leaving, she heard the window break. She
denied that defendant made any threat. After her mother called the police, and they
arrived, she told them that Godoy had threatened to kill them because her mother gave
her a look; she was not afraid of Godoy.

                                             3
Christopher Orneles
       Officer Christopher Orneles received a radio call on the evening of October 17,
2012, and responded to Barrera’s house. He spoke to Barrera and Morales. Barrera, who
was afraid, reported what defendant had said and done. Morales also appeared afraid,
based on her demeanor and her statements, and reported the same events as had her
mother. Morales also told Orneles that Godoy was an 18th Street gang member, and was
on parole.
                                      DISCUSSION
1.     Evidence of Gang Membership Was Properly Admitted at Trial
       Defendant asserts that the court erred in permitting the jury to hear evidence of his
gang membership; he argues that it was not relevant to the issues at trial, was cumulative
in light of the other evidence introduced to establish fear by the victims, and was
prejudicial.
       During pretrial proceedings, defendant objected to Barrera’s statements in her
initial 911 call concerning both his parole and gang status. The court conducted an
extensive Evidence Code section 402 hearing on this issue, and allowed the testimony on
the issue of Barrera’s fear. Both the prosecution and the defense discussed the issue in
their opening statements; there was testimony as to gang membership from Barrera,
Morales, Orneles, and the domestic violence expert at trial, and the prosecutor discussed
it again in closing argument.
       We review the admission of this evidence for abuse of discretion. (People v.
Gonzalez (2012) 210 Cal.App.4th 724, 737 [standard of review for admission of gang
evidence under Evidence Code section 352 is abuse of discretion]; People v. Avitia
(2005) 127 Cal.App.4th 185, 193 [abuse of discretion to admit gang evidence where no
gang allegations and evidence not relevant to material issue in the case].)




                                             4
       A. The Evidence Was Relevant to Prove Fear
       Defendant was convicted on two counts of criminal threats. That crime, set forth
in section 4224, has five elements: a willful threat of “a crime which will result in death
or great bodily injury”; the specific intent that the statement be taken as a threat; a threat
that is “so unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution”; a threat that
actually causes the person threatened “to be in sustained fear for his or her own safety or
for his or her immediate family’s safety”; and fear that is “reasonable” under the
circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228, quoting statute.)
       The evidence of defendant’s gang membership was admitted for the limited
purpose of demonstrating the basis for Barrera’s fear, a critical element of the proof
required for conviction. As Barrera’s testimony demonstrated, a substantial basis for her
fear was her knowledge of defendant’s gang membership, as well as the concern that he
might be assisted in carrying out his threats by his fellow gang members. The challenged
evidence was directly relevant to the issues to be decided by the jury.

       B. The Trial Court Carefully Scrutinized The Evidence
       “We have recognized that admission of evidence of a criminal defendant’s gang
membership creates a risk the jury will improperly infer the defendant has a criminal
disposition and is therefore guilty of the offense charged. (People v. Champion (1995)
9 Cal.4th 879, 922 [39 Cal.Rptr.2d 547, 891 P.2d 93], citing People v. Pinholster (1992)



4      “Any   person who willfully threatens to commit a crime which will result in death
or great bodily injury to another person, with the specific intent that the statement, made
verbally, in writing, or by means of an electronic communication device, is to be taken as
a threat, even if there is no intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family's safety, shall
be punished by imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison.”
                                               5
1 Cal.4th 865, 945 [4 Cal.Rptr.2d 765, 824 P.2d 571].) As defendant points out, evidence
of a defendant’s criminal disposition is inadmissible to prove he committed a specific
criminal act. (Evid. Code, § 1101.) Moreover, even where gang membership is relevant,
because it may have a highly inflammatory impact on the jury, trial courts should
carefully scrutinize such evidence before admitting it. (People v. Champion, supra, 9
Cal.4th at p. 922.)” (People v. Williams (1997) 16 Cal.4th 153, 193.) See also People v.
Albarran (2007) 149 Cal.App.4th 214, 223 [“evidence of gang membership and activity
is admissible if it is logically relevant to some material issue in the case, other than
character evidence, is not more prejudicial than probative and is not cumulative.
[Citation.] Consequently, gang evidence may be relevant to establish the defendants’
motive, intent, or some fact concerning the charged offense other than criminal
propensity as long as the probative value of the evidence outweighs its prejudicial
effect.”].
       Because the evidence in question was relevant to a material issue in the case, it
had probative value on its face. Proceeding to the next step, the trial court carefully
considered the potential for prejudice in pretrial proceedings. That hearing took place
over the course of 2 days and fully explored with Barrera the basis for her knowledge of
the defendant’s gang affiliation and the impact of that knowledge on her state of mind
when the threats were made. Both parties had the opportunity to argue the issue fully.
The trial court initially expressed an explicit concern that the evidence would be unduly
prejudicial, but after hearing the testimony and the argument of counsel, the trial court
overruled the Evidence Code section 352 objection, finding the probative value of the
evidence to be highly significant, and not outweighed by the prejudicial effect. We find
no abuse of discretion in that determination based on the legal issues before the court and
the statements of the witness.5



5      Moreover, any potential prejudicial effect of the testimony in this case must be
considered in light of the fact that both victims testified openly to their own affiliation
with the gang. As a result, the inflammatory impact and opprobrious implications of that
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       The final issue to be determined by a trial court in this situation is whether the
gang evidence is cumulative of other evidence. The pretrial testimony by Barrera
established that defendant’s gang affiliation was a critical element of her fear. As a
result, the evidence was necessary to establish that factor.

2.     The Restitution and Parole Revocation Fines Must Be Reduced
       Appellant asserts that the trial court, in setting the restitution and parole revocation
fines pursuant to sections 1202.4, subdivision (b)(1) and 1202.45, subdivision (a)
indicated that it was imposing the minimum fine permitted by statute. However, the
minimum fine applicable at the time of the charged offenses was $240, not the $300 sum
imposed by the court. Respondent concedes that the fines should be $240, and we order
the abstract of judgment corrected accordingly.

                                      DISPOSITION
       The restitution and parole revocation fines imposed pursuant to Penal Code
sections 1202.4, subdivision (b)(1) and 1202.45, subdivision (a) are reduced to $240, and
the abstract of judgment shall be amended to reflect this change. The superior court is
ordered to forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                   ZELON, J.


We concur:




       PERLUSS, P. J.                              SEGAL, J.



evidence are lessened because all of the key figures in the case belonged to, or were
affiliated with, the same gang.
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