People v. Perez
C078452
| Cal. Ct. App. | Dec 18, 2017Background
- Defendant Tino Perez, a validated Norteño gang member, was convicted of four counts of willful, deliberate, and premeditated attempted murder and related firearm/GBI enhancements after shooting four students at a Sac State golf-team party; five eyewitnesses identified him and physical evidence (ammo, gun photos, jail calls) linked him to the shooting.
- Prosecutor alleged and the jury found each offense was committed "for the benefit of" a criminal street gang (§ 186.22(b)(1)); the jury also found multiple firearm and great-bodily-injury enhancements.
- Gang evidence primarily consisted of Perez’s prior validation, tattoos, cell‑phone photos (gang signs, ammunition), and Detective Sample’s expert testimony hypothesizing that a violent public act by a gang member enhances the gang’s reputation.
- There was no evidence the party was in gang territory, no rival gang presence, no gang epithets/attire/signs at the shooting, no co‑participants, and no evidence the shooting was retaliatory or claimed in the gang’s name.
- Defense challenged: (1) sufficiency of evidence for the gang enhancement, (2) admission/authenticity/use of text messages from defendant’s girlfriend to a witness, (3) prosecutorial misconduct in closing, and (4) whether life terms for attempted murder (section 664) were authorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for §186.22(b)(1) gang enhancement | Gang expert’s testimony and defendant’s validation/tattoos/association with other Mexicans at the party support inference the shooting benefited Norteños by enhancing reputation | Mere gang membership and tattoos without gang indicators at the scene, co‑conspirators, territory, or gang signaling are insufficient to show crime was committed for gang benefit or with specific intent to promote gang | Reversed as to the gang enhancement — evidence insufficient; enhancement stricken |
| Authorization of life terms for willful, deliberate, premeditated attempted murder (Pen. Code §664) | Life terms proper because jury found premeditation; defendant had opportunity to object during trial | Statute requires the fact of willful, deliberate, premeditated attempted murder to be pleaded in the accusatory pleading; prosecution did not plead it, so life terms are unauthorized and not forfeited here | Four life terms stricken and remanded for resentencing on counts 1–4 |
| Admissibility/authentication and use of girlfriend’s text messages | Texts were authenticated by witness’s phone screenshots and used to rehabilitate that witness’s credibility; admitted for nonhearsay purpose | Texts lacked adequate foundation, were hearsay when attributed to non‑testifying girlfriend, unduly prejudicial, and limiting instruction ineffective | Admission was within trial court’s discretion: sufficient foundation, admissible for nonhearsay purpose (rehabilitation), not unduly prejudicial; limiting instruction adequate |
| Prosecutorial misconduct in closing argument | Prosecutor’s comments were proper interpretations of evidence and the limited role of jurors; any ambiguous remark was cured by instruction | Closing statements misstated reasonable doubt, disparaged defense, and improperly asked jury to accept hearsay (texts) — warranting reversal/new trial | No prosecutorial misconduct requiring reversal; objections and curative instruction sufficed; trial not fundamentally unfair |
Key Cases Cited
- People v. Albillar, 51 Cal.4th 47 (Cal. 2010) (gang expert opinion can support enhancement where facts tie crime to gang activity and reputation)
- People v. Vang, 52 Cal.4th 1038 (Cal. 2011) (limits on gang expert hypothetical questions; expert cannot opine on defendant’s specific intent)
- In re Frank S., 141 Cal.App.4th 1192 (Cal. Ct. App. 2006) (insufficient gang evidence where defendant acted alone and no gang‑related indicia were present)
- People v. Ochoa, 179 Cal.App.4th 650 (Cal. Ct. App. 2009) (expert speculation insufficient absent territorial, signaling, or associative evidence)
- In re Daniel C., 195 Cal.App.4th 1350 (Cal. Ct. App. 2011) (distinguishing association prong from specific‑intent prong; lone actor plus gang membership insufficient)
- People v. Rios, 222 Cal.App.4th 542 (Cal. Ct. App. 2013) (gang enhancement unsupported where expert relied only on gang membership and possession of a gun)
- People v. Ramirez, 244 Cal.App.4th 800 (Cal. Ct. App. 2016) (conclusory opinion that any violent crime benefits a gang is inadequate)
- People v. Franklin, 248 Cal.App.4th 938 (Cal. Ct. App. 2016) (striking gang finding where expert testimony lacked evidentiary anchors)
- People v. Mancebo, 27 Cal.4th 735 (Cal. 2002) (due process requires notice when enhancement statutes are used to increase punishment)
- People v. Arias, 182 Cal.App.4th 1009 (Cal. Ct. App. 2010) (life terms for attempted murder unauthorized where statute’s pleading requirement not met and defendant lacked notice)
- People v. Houston, 54 Cal.4th 1186 (Cal. 2012) (forfeiture of challenge where defendant received adequate trial‑stage notice of enhanced sentencing risk and failed to object)