P. v. Leon CA2/8

Filed 4/22/13 P. v. Leon CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B232418

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA366993)
v.

DOUGLAS LEON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Judith L. Champagne, Judge. Affirmed.

Chris R. Redburn, 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, Linda C. Johnson and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 Defendant and appellant Douglas Leon appeals from his conviction of first degree
murder and attempted extortion.1 He contends the trial court erred in (1) denying his
Batson-Wheeler2 motion; (2) excluding evidence that would have impeached the
prosecution‘s gang expert; (3) allowing the prosecutor to pose an improper hypothetical;
and (4) imposing large fines without submitting the underlying factual issues to the jury.
He also contends there was insufficient evidence to support the finding of premeditation.
We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that on January 15, 2010, defendant
was a member of the criminal street gang known as the Maywood Locos, which claimed
the 5500 block of Gifford Avenue in the City of Maywood as their territory and
considered the Orchard Locos to be their rivals. At about 9:30 that Friday night, 16-year-
old Bryan and two friends, 17-year-old Angel and 15-year-old Tiffany, were waiting to
get into a party at that location when defendant fatally shot Bryan five times. Fifteen-
year-old Andy M. was shot in the leg as he was running from the scene.

1 Defendant was charged by amended information with the first degree murder of
Bryan Barraza; the attempted premeditated murders of Andy M., Angel S. and
Tiffany B., and the attempted extortion of Kevin E. Gang and firearm enhancements
were also alleged. A jury found defendant guilty of first degree murder and attempted
extortion; it found true a gang enhancement on each count (Pen. Code, § 186.22,
subd. (b)); as to the murder, it found true three firearm enhancements (§ 12022.53,
subds. (b), (c), (d) & (e)(1)); and as to the extortion it found true one firearm
enhancement (§ 12022.5, subd. (a).) Defendant was sentenced to 50 years to life in
prison comprised of 25 years to life for the murder, plus a consecutive 25 years pursuant
to section 12022.53, subdivision (d) [principal personally and intentionally discharged a
firearm causing death]; plus a concurrent 10 years for the extortion (the two-year
midterm, plus five years for the gang enhancement, plus three years for the gun use).
Defendant timely appealed.

2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).

2
A. Eyewitness Testimony

Bryan‘s childhood friend, Angel, testified that he and his girlfriend, Tiffany,
walked with Bryan to the party that night.3 Defendant and four companions came out of
the party and approached the threesome as they were waiting to get in. Defendant asked
Angel and Bryan, ―Where you from?‖ Angel replied, ―I don‘t bang. I ain‘t from
nowhere.‖ Bryan, who was standing to Angel‘s left, did not respond. As he turned to
speak to Tiffany on his right, Angel kept an eye on Bryan and defendant, because he was
concerned. Angel saw defendant move behind Bryan‘s left shoulder, pull a gun out of his
waistband with his right hand and fire five shots toward Bryan and Angel. Bryan jerked
back and when Angel turned he saw Bryan on the ground and defendant running north
still holding the gun.
Angel and Tiffany ran south, to a house on the corner of Gifford Avenue and 56th
Street, where Angel saw another young man who had been shot in the leg enter. From
there, Angel called 911 and reported that a gang member had just shot his best friend.
While waiting outside for the police to arrive, Angel saw a car pull up in front of the
house; defendant, still holding a gun, got out of the front passenger seat and another
person got out of the backseat of that car; Angel made eye contact with defendant. At the
sound of the approaching police cars, defendant and his companion got back into the car,
which drove away. Defendant was wearing a black Dodger‘s jacket over a black T-shirt;
he had a gang tattoo on his forehead but Angel could not recall what it said. From a
photographic lineup, Angel identified defendant as the shooter.
The account of the incident Tiffany gave to officers at the scene was the same as
Angel‘s in all material respects. She recalled that after Angel and Bryan said they were
not in a gang, the man who had approached them walked past, then turned and fired five
shots in their direction. Tiffany described the shooter as an 18- to 20-year-old, 130 to
150 pounds, 5‘8‖ male Hispanic with acne, a shaved head and the words ―Maywood

3 Because Angel was killed in a car accident before trial, his preliminary hearing
testimony was read to the jury.

3
Loco‖ tattooed on his forehead; he was wearing a black Dodger‘s jacket, white T-shirt
and pants of an unknown color.
Later that same night, Sergeant Frank Garcia tape recorded two interviews with
Tiffany. From a photographic lineup, she identified defendant as the shooter. She
recalled that defendant pulled out a silver gun and shot Bryan. Tiffany did not remember
seeing anyone being pushed and did not think Bryan said anything to upset defendant.
She also saw the brown car, in which she believed defendant was riding, pull up in front
of the second house.
Contrary to what she said in her tape-recorded interview, Tiffany testified at trial
that she never saw a gun but believed the shooter, who she did not identify, was a person
with a tattoo because that person was standing in front of his three companions. Tiffany
did not want to testify against defendant because she was afraid of repercussions from his
gang.
Sixteen-year-old Kevin told the police officer who interviewed him at the scene
that he was one of three D.J.‘s at the party that night. Kevin was familiar with the
Maywood Locos from living in the neighborhood and knew that defendant was a
Maywood Loco. Kevin had seen defendant with a chrome automatic pistol in his
waistband at several parties in the past and on the night in question.
In a tape-recorded interview that same night, Kevin told Homicide Detectives
Ralph Hernandez and Kevin Lowe that he saw defendant shoot Bryan. Kevin recounted
that sometime before the shooting, defendant asked Kevin, ―What‘s up, man? You
bang?‖ Kevin recognized the gun defendant was holding at the time as the same gun he
had seen defendant holding at prior parties. Kevin responded that he was ―not from no
where. I said, I don‘t mess with Maywood Locos.‖ Defendant then announced that he
was going to be ―charging,‖ which Kevin understood to mean collecting admission from
people entering the party.4 A little while later, Kevin saw defendant approach Bryan,

4 A gang expert testified that ―taxing‖ is one way gang members make money. If
someone does not pay up, or is perceived by the gang member to be disrespectful, the
gang member might kill the person.

4
Angel and Tiffany. He heard defendant ask them, ―You bang?‖ In response, Bryan tried
to ―act all hard‖ and pushed defendant; defendant responded by shooting Bryan in the leg
and then the head. Kevin heard as many as 10 gunshots. From a photographic lineup,
Kevin identified defendant as the shooter.
At trial, Kevin denied seeing the shooting, seeing defendant holding a handgun
that night or at any other time, and that he had identified defendant as the shooter.
Andy, who was shot in the leg in the incident, identified defendant as the shooter
from a photographic lineup shown to him by police at the hospital the next day. During
his interview with police, he stated Bryan claimed to be from the Orchard Locos gang.
At trial, Andy maintained that he never saw the shooter but heard an argument
involving two males followed by silence and then six gun shots. Andy did not recall
talking to detectives at the hospital the next day or identifying defendant as the shooter
from a photographic lineup.

B. Gang Expert Testimony

Former Maywood police officer and current Deputy Sheriff Andrew Serrata
testified as the prosecution‘s gang expert. Serrata explained that when a gang member
asks someone, ―Where are you from?‖ it is a challenge. The gang member is trying to
ascertain whether the other person is in a rival gang. The answer, even if the person
denies gang membership, is often followed by violence. ―Snitches‖ are threatened,
assaulted and sometimes killed by gang members. It is not uncommon for witnesses in
gang-related cases to be reluctant to testify for fear of retaliation.
Deputy Serrata was familiar with the Maywood Locos from being in school with
members of that gang as well as from his work as a police officer. In 2005, Serrata was
assigned to monitor the Maywood Locos. Since then, he has investigated about
200 crimes involving that gang. The Maywood Locos and the Orchard gang are rivals.
Serrata had known defendant for two or three years and knew him to be a member of the
Maywood Locos.

5
 The primary activities of the Maywood Locos are narcotics sales, assault, robbery,
burglary, assault with a deadly weapon, attempted murder and murder. Deputy Serrata
explained that Maywood Locos have to earn their tattoos: a new member is allowed to
get a small tattoo, usually the letter ―M‖; the more work that person puts in on behalf of
the gang, the more and larger tattoos they can get; the ―Maywood‖ tattoo on defendant‘s
forehead indicates that he is a shot caller.
Based on a hypothetical posed by the prosecutor that mirrored the facts of the
case, Deputy Serrata stated his opinion that the murder and attempted murders were
committed for the benefit of, at the direction of or in association with a Maywood Locos
gang member.
Defense counsel posed his own hypothetical: if an Orchard Street gang member
enters into Maywood Locos territory, is asked by a Maywood Locos gang member where
he is from, responds by identifying himself as a member of Orchard Street and pushing
the Maywood Locos gang member, ―Do you, hypothetically speaking, anticipate some
altercation occurring as a result of that contact?‖ Deputy Serrata responded
affirmatively. Even if a person responded that he is ―from no where,‖ Serrata would be
afraid of a shooting. In Serrata‘s opinion, if a gang member confronted three people,
only one of whom was a rival gang member, and the gang member shot towards those
three people, the gang member would have intended to shoot all three because he would
perceive them to be threatening as a group.

DISCUSSION

A. Denial of Defendant’s Batson-Wheeler Motion Was Not Error

Defendant contends the prosecutor used peremptory challenges to exclude
Hispanic jurors in violation of Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d
258. He argues that (1) defense counsel made a prima facie case that Juror Nos. 1 (7317),
3 (1530), 4 (6504), and 7 (0151) were excused because of group bias and (2) the

6
nondiscriminatory justifications articulated by the prosecutor were sham excuses. We are
not persuaded.
A prosecutor‘s use of peremptory challenges to strike prospective jurors because
of group bias (i.e., bias based on the juror‘s membership in a racial, religious, ethnic or
similar group) violates a criminal defendant‘s right to trial by a jury drawn from a
representative cross-section of the community under both the Fourteenth Amendment to
the United States Constitution and article I, section 16 of the California Constitution.
(People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).) Ruling on a Batson-Wheeler motion
requires a three-part inquiry. First, the defendant must make out a prima facie case by
showing that the totality of the circumstances gives rise to an inference of discriminatory
purpose. Second, if the defendant does so, the burden shifts to the prosecution to
adequately explain its peremptory challenges by offering group bias-neutral justifications
for the strikes. Third, if such an explanation has been given, the trial court must decide
whether the defendant has proven purposeful discrimination. (Bell, at p. 596.) As we
shall explain, the trial court did not err in finding defendant did not make a prima facie
showing of group bias. Even assuming defendant had done so, he has not shown that the
prosecutor‘s articulated reasons for excusing the jurors in question were not bona fide.

1. Factual Background

The challenged jurors testified as follows:
• Juror No. 7317 lived in East Los Angeles, was married and had three
small children. His only experience with litigation was a workers‘ compensation
case which he believed was handled appropriately. He knew no one working in
law enforcement or the legal system and had never met a policeman. He had
experience with rifles. His family had not been affected by street gangs, but he
had observed the effects of gang activity in his community. He believed that gang
members could tell the truth. Asked if he could do the job of being a juror, he
responded: ―I am nervous about it. I never done it before.‖ Juror No. 7317‘s
opinion would not be affected if someone said the victim was a gang member.

7
 • Juror No. 1530 lived in northeast Los Angeles, had a partner and a one-
year-old daughter. She had no prior jury experience, had never been a victim of,
or witness to, a crime. Her brother was awaiting trial on drug possession charges,
and she had been with him at every court appearance. Although she believed that
the evidence against her brother had been planted in his car, she did not have a
negative impression of law enforcement. Currently a student, Juror No. 1530
wanted to be a social worker and to work with children. She had heard of street
gangs but was not familiar with them. Recently, a school friend and his brother
who were not gang members were shot and killed outside their home by gang
members. Despite this experience, she could remain objective in this case.
• Juror No. 6504 lived in the San Gabriel Valley, was not married and had
never served on a jury. Asked whether he could think of any way in which street
gangs had impacted his life, he stated, ―No. Not really. There has been instances
but nothing serious.‖ Asked to elaborate, he said that when he was younger there
was a driveby shooting ―a couple doors down‖ from his house.
• Juror No. 0151 lived in Santa Monica, was married and had two adult
children. He had been an alternate juror in a criminal trial in which the defendant
was acquitted of possession of rock cocaine. Juror No. 0151 worked as a cook at a
hospital; he did not have any opinion as to whether he was a good cook. He knew
that gangs existed but did not know anyone whose life had been affected by a
gang. Asked whether he could listen to the testimony even if the victim was a
gang member, Juror No. 0151 stated, ―No. I don‘t know anybody involved in this
case. I have no judgment or opinions.‖
The prosecutor exercised peremptory challenges to eight prospective jurors
including Nos. 7317, 1530 and 6504, without objection. After she exercised her ninth
peremptory to excuse Juror No. 0151, defense counsel made a Batson-Wheeler motion,
arguing that the prosecutor was excusing all Hispanics. The trial court noted that there
was still a diverse prospective jury panel, then stated: ―I‘m not making a finding at this
stage. But if you have any justification for your choices that you want to mention to

8
refresh the court‘s recollection, it would be helpful.‖ The prosecutor responded that she
excused Juror No. 7317 because, although he said he saw the effect of gangs in his
community, he appeared accepting of them. She excused Juror No. 1530 because she
appeared to have a problem with the police and her claim to have been unaffected by the
recent gang-related murder of two friends was not credible. She excused Juror No. 6504
because she did not credit his claim that he could be objective despite a driveby shooting
that occurred down the street from his home. Finally, she excused Juror No. 0151
because he seemed too indecisive. This colloquy followed:
―THE COURT: All right. I appreciate your refreshing the court‘s recollection.
And I don‘t see any pattern of abuse of the peremptory challenges here. Specifically
related to Hispanics. [¶] Do you want me to go through all the Asians as well or are you
satisfied? [¶] [DEFENSE COUNSEL]: I‘m satisfied. [¶] . . . [¶] THE COURT:
Really, counsel, if I were to grant a Wheeler motion, do you think we‘d be any farther
ahead in getting a fair jury? [¶] [DEFENSE COUNSEL]: No. I submit it. For example,
I just don‘t recall, and I know it‘s late in the day, but I don‘t recall anybody admitting
being involved in gang activity. [¶] THE COURT: We‘ve had a couple people that have
talked about one of their friends dating someone, having friends who have been falsely
accused and convicted. [¶] [DEFENSE COUNSEL]: That‘s true. [¶] THE COURT:
So those are valid reasons. Okay. Thank you. I don‘t find a prima facie case. [¶]
[DEFENSE COUNSEL]: Okay. That‘s fine. [¶] [THE PROSECUTOR]: Thank you.
Done.‖

2. Defendant Did Not Establish a Prima Facie Case of Group Bias

―To make a prima facie showing of group bias, ‗the defendant must show that
under the totality of the circumstances it is reasonable to infer discriminatory intent.‘
[Citations.]‖ (People v. Davis (2009) 46 Cal.4th 539, 582; see also Johnson v. California
(2005) 545 U.S. 162 [prima facie case requires no more than evidence or circumstances
that give rise to an inference of discrimination].) A single instance of discrimination is
constitutionally proscribed. (People v. Howard (2008) 42 Cal.4th 1000, 1016.) Some

9
examples of the types of evidence that are relevant to establishing a prima facie case
include that the prosecutor struck most or all of the members of the identified group from
the venire; used a disproportionate number of his or her peremptories against that group;
the only characteristic shared by the jurors in question is their membership in the group;
and the failure of the prosecutor to engage questioned jurors in ―more than desultory voir
dire.‖ (Davis, at p. 583.) In determining whether the trial court erred in finding that no
prima facie showing of group bias had been made, we examine the totality of all the
relevant circumstances, including the entire record of voir dire of the challenged jurors.
(See Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1108.) When, as here, ―the trial
court expressly states that it does not believe a prima facie case has been made, and then
invites the prosecution to justify its challenges for the record on appeal, the question
whether a prima facie case has been made is not mooted, nor is a finding of a prima facie
showing implied. [Citations.] Under such circumstances, we sustain the trial court if,
upon independently reviewing the record, we conclude the totality of the relevant facts
does not give rise to an inference of discriminatory purpose.‖ (Howard, supra, at
p. 1018; see also 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Criminal Trials,
§ 596 [appellate court will affirm trial court‘s finding of no prima facie case if the record
suggests grounds on which the prosecution might reasonably have challenged the jurors
in question].)
Based on our independent review of the record, we agree with the trial court that
the defendant did not make a prima facie case that the prosecutor challenged the jurors in
question because they were Hispanic. This is because the record suggests race-neutral
reasons for the challenges. For example, Juror No. 1530‘s testimony that her brother was
awaiting trial on drug possession charges and she believed the police had planted
evidence against him was a race-neutral reason for excusing that juror. (See People v.
Roldan (2005) 35 Cal.4th 646, 703 [prospective juror‘s negative experience with criminal
justice system is a race-neutral ground for a peremptory challenge]; People v. Farnam
(2002) 28 Cal.4th 107, 138 [close relative‘s adversarial contact with criminal justice
system is race neutral]; see also People v. Calvin (2008) 159 Cal.App.4th 1377, 1386

10
[skepticism about the criminal justice system is race neutral].) In addition, Juror
No. 1530 was studying to be a social worker, another race-neutral reason for excluding
her. (See People v. Watson (2008) 43 Cal.4th 652, 677 (Watson) [juror‘s background in
social work was race-neutral reason for exclusion]; People v. Trevino (1997) 55
Cal.App.4th 396, 411 [providers of social services]; People v. Perez (1996) 48
Cal.App.4th 1310, 1315 [those working in social services field].)
Although they downplayed its impact on their lives, the experiences with gangs in
their respective communities described by Juror Nos. 7317 and 6504 was a race-neutral
reason for excluding each of them. (See Watson, supra, 43 Cal.4th at p. 679
[neighborhood exposure to gangs may bias a prospective juror despite the juror‘s
insistence that it would not].)
Juror No. 0151 had been an alternate juror in a criminal trial in which the
defendant was acquitted. Prior jury service is a race-neutral reason for exercising a
peremptory challenge. (See People v. Lewis (2006) 39 Cal.4th 970, 1014; People v.
Reynoso (2003) 31 Cal.4th 903, 918.)

3. Substantial Evidence Supports a Finding That the Prosecutor Relied on
Race-Neutral Reasons for Excusing the Questioned Jurors

Even assuming for the sake of argument that defendant established a prima facie
case of group bias – which we do not believe he did – defendant failed to show that the
prosecutor‘s stated reasons for excusing the jurors in question were not credible. We
review the trial court‘s ruling on a Batson-Wheeler motion for substantial evidence. In so
doing, we presume that the prosecutor used peremptory challenges in a constitutional
manner and defer to the court‘s ability to distinguish bona fide reasons from sham
excuses. ― ‗As long as the court makes ―a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered its conclusions are entitled to deference on
appeal.‖ ‘ [Citation.]‖ (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, disapproved
on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

11
 Here, the trial court appears to have made a sincere and reasoned effort to evaluate
the prosecutor‘s nondiscriminatory justifications and its finding that defendant did not
make a prima facie case of group bias is supported by the evidence. The prosecutor‘s
race-neutral reasons for excusing the challenged jurors were reasonable inferences from
the jurors‘ statements. For example, from Juror No. 7317‘s statement that gangs had no
effect on his immediate family even though he saw the effect of gangs in his community,
it was reasonable to infer that he was too accepting of gangs to make a good prosecution
juror; from Juror No. 1530‘s statement that she believed the evidence against her brother
had been ―planted,‖ it was reasonable to infer that she may have a problem with police;
from Juror No. 6504‘s characterization of a driveby shooting as ―nothing serious,‖ it was
reasonable to infer that he, like Juror No. 7317, was too accepting of gang violence to
make a good prosecution juror; from Juror No. 0151‘s participation in a criminal case
that resulted in acquittal, as well as his refusal to state whether he thought he was a good
cook, it was reasonable to infer that he was not decisive enough to be an effective juror.

B. Denial of Defendant’s Pitchess Motion Was Not an Abuse of Discretion

Defendant contends the trial court abused its discretion by denying his Pitchess
motion.5 He argues that the motion sought evidence of officer misconduct amounting to
moral turpitude by gang expert Deputy Serrata, which was relevant to impeach Serrata.
We find no error.
The sole and exclusive means by which citizen complaints against police officers
may be obtained are the Pitchess procedures codified in Penal Code sections 832.7 and
832.8, and Evidence Code sections 1043 and 1045. (Brown v. Valverde (2010)
183 Cal.App.4th 1531, 1539.) A Pitchess motion must include, among other things, an
affidavit showing good cause for the discovery sought. (Evid. Code, § 1043,
subd. (b)(3); Brown, at p. 1539; see also Galindo v. Superior Court (2010) 50 Cal.4th 1,
12.) ―To show good cause as required by [Evidence Code] section 1043, [the]

5 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

12
declaration in support of a Pitchess motion must propose a defense or defenses to the
pending charges‖ and ―articulate how the discovery sought may lead to relevant evidence
or may itself be admissible direct or impeachment evidence [citations] that would support
those proposed defenses.‖ (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024
(Warrick).) The declaration ―must also describe a factual scenario supporting the
claimed officer misconduct.‖ (Ibid.) The threshold showing of good cause required to
obtain Pitchess discovery is ―relatively low.‖ (City of Santa Cruz v. Municipal Court
(1989) 49 Cal.3d 74, 83, 94.) We review Pitchess orders under the abuse of discretion
standard. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Here, defendant sought all complaints against Serrata ―for officer misconduct
amounting to moral turpitude, including allegations of excessive force, dishonesty, false
arrest, fabrication of police reports‖ and related misdeeds. Counsel‘s declaration in
support of the motion stated: ―Based upon information and belief, I am informed that
officer Serrata is under investigation for the use of excessive force during an arrest in or
about August 2010. Based upon information and belief, officer[] Serrata shot the arrestee
approximately six times after the arrestee was already subdued and apprehended.
Because officer Serrata is a critical witness in the matter . . . it is imperative that the
Pitchess motion be granted in order to ascertain information with respect to Serrata‘s use
of excessive force, and/or the submission of false testimony, or false police reports. [¶]
In addition, the materials obtained would be used by the defense to locate witnesses to
testify as to Mr. Serrata‘s character traits, habits, and customs for engaging in acts
untruths and, or falsifying police reports and planting evidence. These character traits of
the officer are relevant to show the officer‘s propensity to engage in untruthfulness, and
that the officer has engaged in such conduct in this case.‖
Counsel‘s declaration does not propose a defense or defenses to the pending
charges or articulate how the discovery sought may lead to relevant evidence that would
support any proposed defenses. (Warrick, supra, 35 Cal.4th at p. 1024.) Deputy Serrata
was not involved in the investigation of the charged crimes and defendant did not suggest
how alleged prior misconduct by Serrata relates to any proposed defense. Given the

13
tenuous connection between unsubstantiated and speculative notions of excessive force
and the officer‘s expert testimony, denial of the Pitchess motion was not an abuse of
discretion.

C. The Prosecutor’s Hypothetical Was Not Improper

Defendant contends he was denied due process by an improper hypothetical posed
to the gang expert by the prosecutor. He argues that the question, to which he objected,
amounted to argument. We find no error.
In People v. Vang (2011) 52 Cal.4th 1038, 1045 (Vang), our Supreme Court
recently explained that use of hypothetical questions must be ― ‗rooted in facts shown by
the evidence.‘ [Citations.]‖ The question need not encompass all of the evidence and
may assume facts ― ‗ ―within the limits of the evidence, not unfairly assembled, upon
which the opinion of the expert is required, and considerable latitude must be allowed in
the choice of facts as to the basis upon which to frame a hypothetical question.‖
[Citation.]‘ ‖ (Id. at p. 1046.) A hypothetical that precisely mirrors the actual facts of the
case is proper. (Id. at p. 1048.) We review for abuse of discretion the trial court‘s ruling
allowing expert testimony. (People v. Mendoza (2000) 24 Cal.4th 130, 177.)
Here, using a hypothetical that accurately reflected the facts of the case, the
prosecutor asked Deputy Serrata if he had an opinion as to whether a murder and four
attempted murders under the described circumstances were committed for the benefit of,
at the direction of or in association with a Maywood Locos gang member. Serrata
answered affirmatively. He explained that by asking party goers what gang they are from
while displaying a gun, a gang member instills fear of the gang into the object of his
inquiry as well as all witnesses to the exchange. By repeating the question to the people
waiting to get into the party, and then shooting at them, the gang member compounds that
fear. Word of the incident spreads throughout the neighborhood, instilling fear of the
shooter and his gang into the community. Under Vang, supra, 52 Cal.4th at page 1048,
the prosecutor‘s hypothetical was not improper.

14
 Defendant also argues that the hypothetical was so lengthy that it essentially
allowed the prosecutor to argue its case in the guise of asking a question. Although we
can imagine a hypothetical that could improperly have that effect, this hypothetical did
not. We conclude that there was no abuse of discretion in allowing the expert to answer
the challenged hypothetical.

D. Substantial Evidence Supported the Premeditation Finding

Defendant contends insufficient evidence supports the finding that the murder was
premeditated. He argues that the only reasonable inference from the evidence is that the
killing was the spontaneous result of a sudden confrontation. We disagree.
―An intentional killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.‖ (People v.
Stitely (2005) 35 Cal.4th 514, 543.) Known as the ―Anderson factors,‖ three types of
evidence are generally relied upon to support a finding of premeditation and deliberation:
(1) planning activity, (2) motive, and (3) manner of killing. (People v. Welch (1999)
20 Cal.4th 701, 758, overruled on another point in People v. Blakeley (2000) 23 Cal.4th
82, 91, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) Typically, a
finding of premeditation is supported by substantial evidence when there is evidence of
all three types, extremely strong evidence of planning, or evidence of motive and manner
of killing. (Welch, at p. 758.) Evidence that the defendant deliberately aimed at the
victim believing he was a rival gang member is sufficient to support a premeditation
finding. (People v. Rand (1995) 37 Cal.App.4th 999, 1001.)
Here, the premeditation finding was supported by substantial evidence of motive
and manner of killing. In particular, we find substantial the evidence that defendant fired
at Bryan multiple times from close range after asking him the portentous question,
―Where are you from?,‖ Andy‘s testimony that defendant shot at Bryan after Bryan
identified himself as a member of the Orchard Locos, and the gang expert‘s testimony
that the Maywood Locos considered the Orchard gang to be rivals.

15
E. Defendant’s Sixth Amendment Rights Were Not Violated by Imposition of Various
Fines

We find no merit to defendant‘s contention that imposition of fines and restitution
payments totaling $12,936 violated Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) and its progeny.
In Apprendi, the United States Supreme Court held that other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
(Apprendi, supra, 530 U.S. at p. 490.) In Southern Union Co. v. U.S. (2012) __ U.S. __
[132 S.Ct. 2344, 2357] (Southern Union Co.), the court held that the rule applied equally
to imposition of criminal fines.
In People v. Kramis (2012) 209 Cal.App.4th 346, 351 (Kramis), our colleagues in
Division Five held that Apprendi and Southern Union Co. do not apply when the trial
court exercises its discretion within a statutory range, as it does when selecting a
restitution fine pursuant to Penal Code section 1202.4, subdivision (b). The court
explained that Apprendi ― ‗distinguishes a ―sentencing factor‖ – a ―circumstance, which
may be either aggravating or mitigating in character, that supports a specific sentence
within the range authorized by the jury‘s finding that the defendant is guilty of a
particular offense‖ —from a ―sentence enhancement‖ — ―the functional equivalent of an
element of a greater offense than the one covered by the jury‘s guilty verdict‖
constituting ―an increase beyond the maximum authorized statutory sentence.‖
[Citation.]‘ [Citation.]‖ (Kramis, supra, at p. 351, citing People v. Urbano (2005)
128 Cal.App.4th 396, 405-406.) In People v. Pangan (2013) 213 Cal.App.4th 574, 585
(Pangan), the court held that neither Apprendi nor Southern Union Co. applied to direct
victim restitution, ―because direct victim restitution is not a criminal penalty. As
explained in U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim
restitution is a substitute for a civil remedy so that victims of crime do not need to file
separate civil suits. It is not increased ‗punishment.‘ [People v. Millard (2009)
175 Cal.App.4th 7, 35] makes the same point in regard to California law. [Citations.]

16
[People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184] has collected the numerous
federal cases also holding victim restitution does not constitute increased punishment for
crime. [Citation.] And we would note the restitution statute itself characterize [sic]
victim restitution awards as civil. (See § 1202.4, subd. (a)(3)(B) [victim restitution ‗shall
be enforceable as if the order were a civil judgment‘].)‖
We agree with the reasoning of the court in Kramis and Pangan. Under Kramis,
defendant was not entitled to a jury trial on the fines imposed pursuant to Government
Code section 70373 or Penal Code sections 1465.8, 1202.4, subdivision (b) or 1202.45
because those fines were within a range prescribed by statute. He was not entitled to a
jury trial on the $3,686 restitution award to Bryan‘s surviving family and the $8,380 to
the state victims‘ restitution fund because direct victim restitution is not increased
punishment.

DISPOSITION

The judgment is affirmed.

RUBIN, ACTING P. J.
WE CONCUR:

FLIER, J.

GRIMES, J.

17