Filed 3/11/14 P. v. Piggee CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B245869

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BA383909)
         v.

JAMES EVANS PIGGEE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H.
Egerton, Judge. Affirmed.
         Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff
and Respondent.


                                __________________________________
       A jury convicted defendant and appellant James Evans Piggee in count 1 of
second degree murder (Pen. Code, § 187, subd. (a)),1 willful, deliberate, and
premeditated attempted murder in count 2 (§§ 664/187), shooting at an occupied vehicle
in count 5 (§ 246), and unlawful firearm activity in count 6 (§ 12021, subd. (e)).2 As to
counts 1, 2, and 5, the jury also found the offenses were committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(c)) and defendant personally used a firearm
(§ 12022.53, subds. (b), (c) [as to counts 1 and 2 only], (d) [as to counts 1, 2, and 5]).
Defendant admitted suffering a prior conviction within the meaning of the three strikes
law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant
to a total of 169 years to life in state prison.
       In this timely appeal, defendant argues the judgment should be reversed for the
following reasons: (1) the trial court erroneously allowed the prosecution’s gang expert
to opine that the driver of the vehicle used in the shooting was likely a member of
defendant’s gang; (2) the trial court committed prejudicial error in denying requested
instructions on voluntary manslaughter and attempted voluntary manslaughter based on
imperfect self-defense; (3) it was also prejudicial error to refuse to instruct on justifiable
self-defense; and (4) the evidence is insufficient to support the findings that the offenses
were committed for the benefit of a street gang under section 186.22. We affirm.


                                             FACTS


       On the morning of April 19, 2011, Daniel Orona picked up Rudy Nava from his
home in Orona’s gray Astro van. With Orona in the van were his two cousins, Rogelio
Gandara (Rocky) and Charles Thompson (Chucky). The four men, all members or
associates of the El Sereno gang, drove to California Herbal Remedies, a marijuana
dispensary located in a strip mall at 5470 Valley Boulevard, an area claimed by the

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

       2   The jury was unable to reach verdicts on counts 3 and 4.


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Metro 13 gang. Nava exited the van when they arrived at the strip mall and began to
walk toward the dispensary to purchase marijuana.
       Nava saw a man with a pistol get out of a parked white car. Nava continued
walking without saying anything. He heard yelling and looked back at the van, where
Orona and Gandara seemed to be looking at the car radio. Gandara was talking with
Orona and Thompson in the van when Gandara noticed a scared expression on Orona’s
face. Gandara ducked and closed his eyes. The van suddenly backed up and hit
something. Gandara got out of the van and ran to nearby apartments where he called his
aunt to pick him up. No one in the van ever pointed a gun at anyone, nor did they say
anything to anyone outside the van.
       Nava tried to run into the dispensary when he saw the man with the pistol, but the
automatic door closed and he was unable to gain entry. Nava ran back toward the van,
hearing gunshots. He tried to jump into the van through the side door but was knocked to
the ground when the van unexpectedly went into reverse. Nava was eventually able to
get into the van when it came to a stop after colliding with something. Thompson was
still inside with Orona, who had been shot, but Gandara was gone. Orona drove a short
distance until Nava took over and drove him to the hospital, where Orona died from
multiple gunshot wounds.
       Anthony Brown was a safety officer at the marijuana dispensary, which was
equipped with surveillance cameras that covered inside and outside the clinic, four of
which were displayed on a monitor. Brown heard gunshots from outside the dispensary
at around 12:30 p.m. He watched defendant, a Black male, shooting at the van. Brown
observed the van go into reverse and stop, while shots continued to be fired. Defendant
ran back to a white car in front of the clinic. As the van drove past the white car, Brown
saw defendant get out of the white car and fire additional shots at the van. Defendant
entered the white car from the front passenger side door. The driver was a male Latino.
When the white car started to leave the area, Brown opened the dispensary door with the
idea of taking down the license plate number, but Brown returned inside the dispensary
when defendant exited the car and came toward him. At that point, defendant reentered


                                             3
the white car, which left the parking lot. Brown identified defendant as the shooter from
a six-person photographic lineup, and in court at trial.
       A second store in the area—Valley Foods Liquor at 5474 Valley Boulevard—also
had surveillance cameras covering the inside and outside of the store on the day of the
shooting. Sam Hamad, who worked at the store, knew defendant, who visited the store
weekly and identified himself as Shady. Other Metro 13 gang members from the
neighborhood also frequented the store. Hamad was aware defendant is the only Black
member of the otherwise Hispanic gang. Hamad heard gunshots in the parking lot
around 12:25 p.m. From a video monitor, Hamad saw a van back up into a pole. He
heard six or seven more gunshots. Hamad saw defendant on the video monitor.
Defendant was wearing the same clothes he had on when he came into the store earlier
that day. He also identified defendant on the video captured from the marijuana
dispensary and in a six-pack photographic lineup.
       Police officers responded to the hospital where Orona had been taken. They
detained Nava and Thompson and took custody of Orona’s van. They recovered no
weapons from Thompson, Gandara, and Nava, or from the van. It appeared the van had
been struck with bullets 11 times, 9 times on the driver’s side.
       Defendant was detained at his home by police officers on April 27, 2011. The
clothing he wore at the time of the shooting, as depicted in the videos, was recovered
from his bedroom. Defendant had a Metro PCS cell phone account. Calls were made
from defendant’s phone number using a cell tower located just north of Valley Boulevard
between 12:15 p.m. and 12:24 p.m. on the day of the shooting.
       Officer Sergio Leyva testified as the People’s gang expert.3 The Metro 13 gang
has been in existence since the 1960s, with 49 documented members who are mostly
Hispanic. Defendant is the only Black member of the gang. Orona, Gandara, Nava, and
Thompson were members of the rival El Sereno gang (although Gandara denied this in



       3  He testified as to the required predicate offenses by Metro 13 gang members, an
issue not in dispute on appeal.


                                              4
his trial testimony). Officer Leyva expressed the opinion defendant committed his crimes
to benefit, and in association with, the Metro 13 gang, and that the crimes promoted the
gang. The gang benefited because violent crime instills fear in rival gang members and
the community, discouraging citizens from contacting the police or testifying against
gang members. This type of violence establishes that the gang will retaliate against rival
gang members who enter their territory. The shooting was “in association with” the gang
because there was more than one person involved, and that person was more than likely
an associate of the gang. Defendant gained respect within the gang by killing Orona and
protecting the gang’s territory.
       Defendant is the only known Metro 13 member with the moniker of Shady. There
is a “MySpace” account with a vanity URL of “Shady Metro x3” and an associated email
account of “Shady_Metrox3@yahoo.com. The headline in the user profile reads:
“Shady Loco T3, Metro 13 Gang, 187 on Cerotes and Trash.” “Serrote” is a Spanish
derogatory term for excrement, used by Metro 13 members in reference to El Sereno
gang members. The “MySpace” account had uploaded photos depicting defendant and
other Metro 13 gang members displaying gang signs with their hands in photos entitled
“Me and the Homies” and “The Home Buzzard, Moreno and Me.” Defendant was
convicted of a felony prior to April 19, 2011.


                                      DISCUSSION
                                             I


       Officer Leyva testified, over defense objection, that the driver of the white car was
likely a Metro 13 gang member. Defendant contends admission of this testimony was
error because there is no evidence the driver was a member of defendant’s gang. He
argues the error was prejudicial because the officer’s opinion tended to improperly
establish that defendant committed the offenses in association with a criminal street
gang, which implicated his right to a fair trial under the federal constitution. We need not




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discuss the merits of the contention,4 as the evidence overwhelmingly establishes that
defendant’s offenses were committed for the benefit of a criminal street gang, which is a
separate and independent basis for the gang enhancement, and the purported error was
therefore harmless under any standard of review.
        “Section 186.22 adds various sentencing enhancements for gang-related felonies.
For purposes of the enhancements, subdivision (b)(1) of that section requires that the
felony be 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.’ This portion of section 186.22 requires proof of only two
elements: (1) that the defendant committed a felony for the benefit of, at the direction
of, or in association with any criminal street gang and (2) that he did so with the intent to
promote, further, or assist in criminal conduct by gang members. (People v. Albillar
(2010) 51 Cal.4th 47, 67 [(Albillar)].)” (People v. Mejia (2012) 211 Cal.App.4th 586,
613.)
        Officer Leyva’s testimony the driver of the white car was likely a member of
defendant’s gang would arguably tend to prove one basis for the enhancement under
section 186.22, subdivision (b)—that defendant’s crimes were committed in association
with a criminal street gang. But here, there is overwhelming and uncontroverted
evidence that defendant’s offenses were for the benefit of a criminal street gang, a
separate and independent basis for liability under the gang enhancement statute. The
testimony defendant finds objectionable had no bearing on whether his offenses were
committed for the benefit of a criminal street gang.



        4  We further note this one isolated piece of testimony played a trivial role in the
trial. The testimony was not even mentioned in argument to the jury. Moreover, the jury
was instructed at the time the answer was received, and again at the conclusion of the
trial, the officer’s opinion is only as good as the facts on which it is based, and the jury
was free to disregard any opinion based on facts not supported by the evidence. (See
Judicial Council of Cal. Crim. Jury Instns. (2011-2012) CALCRIM No. 332.)



                                              6
       Gang rivalry is the only apparent reason for defendant’s violent conduct. The
Metro 13 and El Sereno gangs were engaged in a violent feud spanning several years.
The El Sereno gang members entered territory claimed by Metro 13 and were the subject
of an immediate violent attack by defendant, who is unquestionably a hardcore gang
member. As explained by Officer Leyva, protection of territory is a gang imperative, and
the presence of rival gang members is viewed as a challenge. Defendant’s crime
benefited Metro 13 by instilling fear in the community and in the rival gang members.
The shooting promotes the notoriety of the gang, and it serves as a warning of the dire
consequences to a rival gang entering territory claimed by Metro 13 territory. Citizens
will be less likely to call the police, testify, or identify gang members due to the
intimidation flowing from the gang’s violent acts. A gang member who shoots a rival
who enters the gang’s territory benefits the gang because “he’s doing his job. . . .”
       The issue of whether the shootings were for the benefit of a criminal street gang
was not disputed at trial. Defense counsel never questioned the shootings were gang
related. To the contrary, counsel’s only argument to the jury admitted defendant was the
shooter and he was a gang member, but the crime was something less than the charged
offenses because of defendant’s knowledge of the ongoing rivalry between the gangs,
which caused him to act as he did when he came upon rival gang members in Metro 13
territory. Even the defense version of events acknowledged defendant acted for the
benefit of his gang when he saw the El Sereno gang members. Any error in admitting
Officer Leyva’s opinion that the driver of the white car was likely a gang member was
harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.)


                                              II


       In separate arguments, defendant contends the trial court committed prejudicial
error by refusing to instruct on imperfect self-defense and traditional self-defense. We




                                              7
treat the issues as one, because both theories suffer from the same evidentiary deficiency.
The instructions were properly denied.
        Imperfect self-defense exists when a defendant killed another person because the
defendant actually, but unreasonably, believed he was in imminent danger of death or
great bodily injury; the killing is an offense no greater than voluntary manslaughter.
(People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez); In re Christian S. (1994)
7 Cal.4th 768, 771.) Thus, imperfect self-defense describes one type of voluntary
manslaughter, and the “trial court must instruct on this doctrine, whether or not
instructions are requested by counsel, whenever there is evidence substantial enough to
merit consideration by the jury that under this doctrine the defendant is guilty of
voluntary manslaughter. [Citation.]” (Manriquez, supra, at p. 581.)
        Traditional self-defense exists when the defendant possessed both an actual and
reasonable belief in the need to defend. (People v. Stitely (2005) 35 Cal.4th 514, 551
(Stitely); People v. Barton (2005) 12 Cal.4th 186, 199.) As with imperfect self-defense,
the defendant must have an imminent fear of danger to life or great bodily injury.
(People v. Butler (2009) 46 Cal.4th 847, 868; Stitely, supra, at p. 551.) Instructions on
self-defense are not required absent supporting substantial evidence. (Stitely, supra, at p.
551.)
        Having examined the record, we conclude there is no evidence, let alone
substantial evidence, to support either theory of self-defense. The record shows that
shortly after Orona and the three others in his van arrived at the strip mall, Nava exited
the van and walked toward the marijuana dispensary. Defendant immediately confronted
Nava, armed with a pistol, and commenced firing. There is simply no evidence
defendant had an actual fear of imminent danger to his life or great bodily injury, as
required for both forms of self-defense.
        Defendant contends the videotape shows Nava approached defendant, a rival gang
member, words were exchanged, and Nava reached into his pocket. This is inconsistent
with the trial court’s description of the videotape. We have examined all of the
videotapes and agree with the trial court that the record does not support defendant’s


                                              8
description of events. Nava testified he did not speak to defendant, and no contrary
testimony was offered by defendant. Moreover, even if some words were spoken, there
is no evidence as to what purportedly was said, and mere speculation does not constitute
substantial evidence.
       Finally, we reject defendant’s suggestion that his subjective belief in the need to
defend what he perceived to be the territory of his gang created a basis for him to react
violently and thereafter rely on either perfect or imperfect self-defense. Defendant
argues, in part: “A rational jury could infer [defendant] thought an attack on his person
was imminent since that is what rival gang members do, attack members of opposing
gangs.” The law, understandably, does not countenance mitigation of culpability for
unprovoked acts of violence based on the purported norms of criminal street gangs.


                                            III


       Defendant’s final contention is the evidence is insufficient to support the finding
that the crimes were committed for the benefit of a criminal street gang. The contention
has no merit.
       “The law regarding appellate review of claims challenging the sufficiency of the
evidence in the context of gang enhancements is the same as that governing review of
sufficiency claims generally. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)”
(People v. Leon (2008) 161 Cal.App.4th 149, 161.) “In considering a challenge to the
sufficiency of the evidence to support an enhancement, we review the entire record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Wilson (2008) 44 Cal.4th 758, 806.) We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If
the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment
is not warranted simply because the circumstances might also reasonably be reconciled


                                             9
with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) ‘A reviewing
court neither reweighs evidence nor reevaluates a witness’s credibility.’ (Ibid.)”
(Albillar, supra, 51 Cal.4th at pp. 59-60.)
       “It has long been settled that expert testimony regarding whether a crime was gang
related is admissible. ([Albillar], supra, 51 Cal.4th at p. 63; People v. Gardeley [(1996)]
14 Cal.4th [605,] 619.)” (People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5 (Vang).)
“‘Expert opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1),
gang enhancement. ([Albillar], supra, 51 Cal.4th at p. 63.)” (Vang, supra, at p. 1048.)
“Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of . . . a[] criminal street gang’ within the meaning of
section 186.22[, subdivision] (b)(1). (See, e.g., People v. Vazquez (2009) 178
Cal.App.4th 347, 354 [relying on expert opinion that the murder of a nongang member
benefited the gang because ‘violent crimes like murder elevate the status of the gang
within gang culture and intimidate neighborhood residents who are, as a result, “fearful to
come forward, assist law enforcement, testify in court, or even report crimes that they’re
victims of for fear that they may be the gang’s next victim or at least retaliated on by that
gang”’]; People v. Romero (2006) 140 Cal.App.4th 15, 19 [relying on expert opinion that
‘a shooting of any African-American men would elevate the status of the shooters and
their entire [Latino] gang’].)” (Albillar, supra, at p. 63.)
       As explained in part I of this opinion, Officer Leyva expressed the opinion crimes
such as defendant’s were committed for the benefit of a criminal street gang because they
instill fear in the community and in the rival gang members. Citizens will be less likely
to call the police, testify, or identify gang members due to the intimidation flowing from
the gang’s violent acts. This facilitates the commission of future crimes by the gang.
This type of violent conduct promotes the notoriety of the gang, and it serves as a lesson
to rival gang members that if they enter territory claimed by Metro 13, there will be




                                              10
retaliation in the form of a shooting. Officer Leyva’s opinion easily satisfies the
substantial evidence standard of review.


                                      DISPOSITION


       The judgment is affirmed.




              KRIEGLER, J.



We concur:



              MOSK, Acting P. J.



              MINK, J.*




*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


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