People v. Perez
18 Cal. App. 5th 598
| Cal. Ct. App. 5th | 2017Background
- Defendant Tino Alexander Perez was convicted of shooting four college students at a large party; five eyewitnesses identified him and other physical and jail-call evidence linked him to the shootings.
- Jury convicted Perez of four counts of attempted murder (found willful, deliberate, and premeditated), four counts of assault with a firearm, and various firearm and great-bodily-injury enhancements; jury also found he acted for the benefit of a criminal street gang (§ 186.22(b)(1)).
- Prosecution relied on a stipulation that Norteños are a criminal street gang and on Detective Sample (gang expert) testimony that Perez was a validated Varrio Garden Land Norteño with gang-related tattoos and associations.
- The shooting occurred at a party that was not in known gang territory; there was no evidence of rival gangs, gang words, gang colors, gang signs, gang-attributed claims of responsibility, or assistance by other gang members.
- Defense introduced cross-examination showing a victim (Brown) exchanged texts with Perez’s girlfriend; the texts were admitted to rehabilitate Brown’s credibility after defense suggested bias.
- On appeal, the court (1) found insufficient evidence to support the gang enhancement and struck it, (2) found the life terms for willful, deliberate, and premeditated attempted murder unauthorized because the information did not plead that aggravating theory and defendant lacked adequate notice, and (3) affirmed the convictions in other respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 186.22(b)(1) gang enhancement | Gang expert testimony + defendant’s validation, tattoos, cell‑phone photos, and presence with other tattooed Mexican men at the party support inference the shooting benefited Norteños | Evidence is only that a gang member acted alone; no gang signs, colors, rivals, territory, communication, or co‑actors — expert opinion was speculative | Reversed as to gang enhancement: evidence insufficient; enhancement stricken |
| Life terms for willful, deliberate, premeditated attempted murder under § 664(a) | Prosecutor contends earlier trial references provided notice (forfeiture argument) | Statute requires pleading and notice; absent allegation in the information, life terms unauthorized; Houston is distinguishable | Life terms stricken for lack of statutory pleading/notice; remand for resentencing on counts 1–4 |
| Admissibility/authentication/hearsay of text messages from defendant’s girlfriend | Texts authenticated via Brown’s phone screenshots and Brown’s testimony; admitted to rehabilitate Brown, not for truth | Failure to lay foundation, hearsay, unduly prejudicial (no witness/girlfriend testimony), limiting instruction ineffective | Admission affirmed: sufficient foundation, proper non‑hearsay purpose (rehabilitation), no undue prejudice; limiting instruction adequate |
| Prosecutorial misconduct in closing argument & ineffective assistance claim | Prosecutor allegedly denigrated presumption, misstated reasonable doubt, and vouched for texts; counsel’s failure to object was ineffective | Closing remarks were within permissible latitude; any ambiguous statement was cured by prompt objection and curative instruction; counsel had no duty to object to non‑prejudicial remarks | No prosecutorial misconduct that rendered trial fundamentally unfair; counsel not ineffective on these grounds; new‑trial motion properly denied |
Key Cases Cited
- People v. Albillar, 51 Cal.4th 47 (Sup. Ct. of Cal.) (expert testimony may support gang enhancement where abundant gang‑related facts exist)
- People v. Vang, 52 Cal.4th 1038 (Sup. Ct. of Cal.) (limits on expert opining and proper use of hypotheticals)
- People v. Houston, 54 Cal.4th 1186 (Sup. Ct. of Cal.) (notice/forfeiture analysis where court gives midtrial notice of enhanced sentencing theory)
- People v. Mancebo, 27 Cal.4th 735 (Sup. Ct. of Cal.) (due‑process right to notice of sentencing enhancements)
- People v. Arias, 182 Cal.App.4th 1009 (Cal. Ct. App.) (striking life terms where information failed to allege willful/deliberate/premeditated attempted murder)
- In re Frank S., 141 Cal.App.4th 1192 (Cal. Ct. App.) (gang expert speculation insufficient where gang‑related facts lacking)
- People v. Ochoa, 179 Cal.App.4th 650 (Cal. Ct. App.) (gang enhancement unsupported without ritualized gang indicators or association)
- In re Daniel C., 195 Cal.App.4th 1350 (Cal. Ct. App.) (distinguishing “in association with” from specific‑intent prong; lone actor + gang membership insufficient)
- People v. Rios, 222 Cal.App.4th 542 (Cal. Ct. App.) (expert based on mere gang membership and possession of weapon insufficient for enhancement)
- People v. Franklin, 248 Cal.App.4th 938 (Cal. Ct. App.) (striking gang enhancement where expert’s opinion lacked evidentiary support)