P. v. Santana

Filed 6/7/04 P. v. Santana CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRES SANTANA,
Defendant and Appellant.
2d Crim. No. B167415
(Super. Ct. No. TA063973)
(Los Angeles County)
Andres Santana appeals his convictions for two counts of murder (Pen.
Code, § 187, subd. (a))1 and robbery (§ 211). He contends that there was insufficient
evidence to support the convictions and the finding of a gang enhancement. He also
contends that the trial court erred in refusing to hear a section 995 motion orally made on
the first day of trial, and in failing to adequately investigate alleged jury misconduct. He
also claims ineffective assistance of counsel. We will strike the 10-year gang
enhancement on the murder convictions, but otherwise affirm.
FACTS AND PROCEDURAL HISTORY
In the late evening, victims Reynaldo Aguilar and Tony Esquer were sitting
in a parked SUV with Raul Mata. The three men had smoked crack cocaine earlier that
day and were drinking beer in the SUV.
1 All statutory references are to the Penal Code unless otherwise stated.

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Mata saw Santana and a man named Eric walk by. Mata recognized
Santana as a man he had seen in the neighborhood from time to time over the past few
years. Mata knew that Santana and Eric were members of the Lynnwood Dukes street
gang.
Mata left the SUV to buy more beer while Aguilar and Esquer remained in
the vehicle. While Mata was on the street, Santana and Eric approached him and
demanded money. Eric took $10 out of Mata's pocket.
Santana and Eric began walking towards the SUV. Mata followed. As
Santana and Eric reached the SUV, Mata saw a third person hiding behind the vehicle.
Either Santana or Eric opened the door. They demanded money and started beating
Aguilar. Mata hid for a few minutes and then fled and called 911. It was later
determined that Aguilar and Esquer suffered multiple bruises and more serious wounds to
the head. Both died from skull fractures caused by a blunt instrument.
A few minutes after Mata's 911 call, police officers arrived at the scene and
discovered the bodies outside but near the SUV. Mata approached the police and
immediately identified the assailants as Santana and Eric. An officer testified that Mata
described Santana as a five-foot-ten-inch-tall man with a bald head. But, at trial, Mata
testified that Santana was about five feet five or six inches tall. Mata admitted that he
had consumed about eighteen beers during the day, including four within two or three
hours prior to the murders.
The following morning, Mata was asked to look at a photographic "six-
pack" provided by the police. He stated that he did not want to get involved and at first
failed to identify Santana or anyone else. After a break, Mata identified Santana as one
of the assailants. Mata also identified Santana in a lineup in June 2002, and at trial in
November 2002.
Santana was charged with two counts of murder and two counts of robbery.
The information alleged, as special circumstances, that the murders were committed in
the commission of a robbery (§ 190.2, subd. (a)(17)), and there were multiple murders
(§ 190.2, subd. (a)(3)). The prosecution did not seek the death penalty.

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The information also alleged that all the offenses were committed for the
benefit of, at the direction of, and in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct by gang members.
(§ 186.22, subd. (b)(1).)
A jury found Santana guilty as charged. He was sentenced to life
imprisonment without possibility of parole for each of the murders. An additional term
of 10 years was added to the murder sentences as a gang enhancement. (§ 186.22, subd.
(b)(1).) Santana was sentenced to three years in prison on one of the robbery counts, plus
three additional years for the gang enhancement. The sentence on the other robbery
count was stayed. (§ 654.)
DISCUSSION
Substantial Evidence Supports Convictions
Santana contends that Mata's eyewitness identification of Santana as the
perpetrator of the offenses was so unreliable that it failed to constitute substantial
evidence of his guilt. We disagree.
As a reviewing court, we interpret the evidence most favorably to the
judgment and will affirm a conviction that is supported by substantial evidence. (E.g.,
People v. Osband (1996) 13 Cal.4th 622, 690.) The same standard applies to convictions
based on eyewitness identifications, and the testimony of one eyewitness is sufficient to
support a conviction. (Evid. Code, § 411; In re Gustavo M. (1989) 214 Cal.App.3d 1485,
1497; People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Mata's identification was based on observing Santana several times on the
night of the offenses and recognizing him as someone he knew from the neighborhood.
Mata testified that he saw Santana walk past the SUV in which Mata was sitting with the
victims shortly before the offenses, and that Santana confronted Mata a few minutes later
and robbed him. Mata also testified that he watched Santana walk up to the SUV, open
the door, demand money, and begin beating Aguilar. Later, Mata identified Santana by
name when the police responded to his 911 call, and again in a photographic array.
Mata's testimony is corroborated by evidence that, after the murders, Santana had swollen

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hands and red knuckles, and Aguilar's credit card had been used a few blocks from
Santana's residence shortly after the murders.
To undermine Mata's credibility, Santana relies on published studies and
extensive testimony by a noted expert on memory perception and eyewitness
identification, Robert Shomer, Ph.D., concluding that eyewitness identification is
unreliable. He also relies on evidence that Mata had been consuming alcohol and drugs
before the offenses, inaccuracies in Mata's physical description of Santana, and Mata's
hesitancy in identifying Santana from a photographic array. Santana also notes
conflicting evidence regarding whether Mata initially identified Santana as "Flaco" or by
Santana's correct nickname, "Blanco."
Santana is rearguing the evidence and asking us to usurp the function of the
jury to determine witness credibility. (People v. Allen, supra, 165 Cal.App.3d at p. 623.)
A reviewing court is permitted to reject the testimony of a witness that the jury believed
if the testimony is factually impossible or inherently improbable on the face of the record
without resorting to inferences. (Ibid.; People v. Johnson (1960) 187 Cal.App.2d 116,
122.) Mata's testimony is far from impossible or inherently incredible. His consumption
of alcohol and drugs may undermine his testimony, but Mata's familiarity with Santana
coupled with his repeated observations of Santana immediately before and during the
commission of the offenses bolster his credibility.
The existence of some evidence that may support the defense does not
permit this court to second-guess the jury's evaluation of identification testimony.
(People v. Elwood (1988) 199 Cal.App.3d 1365, 1372-1373.) Where, as here, "the
circumstances surrounding the identification and its weight are explored at length at trial,
where eyewitness identification is believed by the trier of fact, that determination is
binding on the reviewing court." (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.)
No Error Regarding Allegation and Proof of Gang Enhancement
Santana challenges the allegation and true finding that the offenses were
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) He
contends that the trial court erroneously refused to consider his section 995 motion to

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dismiss the allegation, and that evidence at trial was insufficient to support a true finding.
To the extent these issues have been waived on appeal, Santana argues that he received
ineffective assistance of counsel. We conclude that there was no trial court error, no
evidentiary deficiency, and no ineffective assistance of counsel.
The trial court correctly ruled that Santana's section 995 motion was
untimely. Under section 997, a section 995 motion challenging probable cause for a
commitment must be brought "prior to trial." (§§ 995, subd. (a)(2)(B), 997; People v.
Waters (1975) 52 Cal.App.3d 323, 331-332.) It is undisputed that a criminal jury trial
commences when jury selection begins and the prospective jurors are first sworn.
(People v. Granderson (1998) 67 Cal.App.4th 703, 707-708.) Here, Santana made his
section 995 motion during jury selection. Although the jury selection was interrupted for
the summoning of a second panel of jurors, there was no mistrial. Accordingly, the
section 995 motion was not made "prior to trial."
Even if a trial court makes an erroneous ruling on a section 995 motion,
reversal is not required if evidence at the preliminary hearing and at trial supports the
commitment and a true finding by the jury. (People v. Crittenden (1994) 9 Cal.4th 83,
136-137.) A commitment will be upheld if there is some evidence showing each element
of the allegation. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148-149.) A
true finding at trial will be upheld if there is substantial evidence showing each element.
(People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on another ground in
People v. Gardeley (1996) 14 Cal.4th 605, 624.) Here, evidence at the preliminary
hearing and trial was sufficient under those standards.
A gang enhancement applies to an offense "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." (§ 186.22, subd.
(b)(1).) A criminal street gang is an "ongoing organization, association, or group of three
or more persons . . . having as one of its primary activities" the commission of specified
offenses and which has "a common name or common identifying sign or symbol, and

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whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity." (§ 186.22, subd. (f).)
Santana concedes that evidence establishes his membership in a criminal
street gang, but argues that the expert opinion testimony offered to establish the
"committed for the benefit of" a gang requirement was inadmissible and should have
been excluded by the trial court. We disagree.
Gang experts at the preliminary hearing and trial testified regarding the
culture and criminal activity of gangs generally, and Santana's "Lynwood Dukes" gang
specifically. Among other things, the expert at trial testified that graffiti, a red arrow,
found at the scene of the murders identified the Lynwood Dukes as being involved in the
offenses. The experts concluded that, in their opinion, the offenses were committed for
the benefit of, or at the direction of, or in association with Santana's gang, the "Lynwood
Dukes." The opinions were based on hypothetical facts consisting of a restatement of
Mata's testimony and the experts' knowledge of gangs in general.
The expert opinions were admissible because the culture, habits, and
psychology of gangs are matters "sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People
v. Gardeley, supra, 14 Cal.4th at p. 617.) In addition, an opinion that certain conduct is
gang related may be based on hypothetical facts of the case. (Gardeley, at pp. 618-619;
see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209; People v. Olguin
(1994) 31 Cal.App.4th 1355, 1371; People v. Valdez (1997) 58 Cal.App.4th 494, 508-
509.)
For the same reason, we also reject Santana's assertion that the opinions
were inadmissible because they concerned the existence of the legal elements of the
enhancement. Expert testimony on a subject beyond the common experience of jurors
may encompass the ultimate issue that the jury must decide. (See People v. Valdez,
supra, 58 Cal.App.4th at p. 505; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.) An
expert opinion that specified conduct constitutes a statutory requirement of a gang

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enhancement is admissible because the subject of gang behavior cannot be simplified
sufficiently for a jury to intelligently determine the matter. (Valdez, at pp. 507-509.)
Santana contends that he received ineffective assistance of counsel because
counsel failed to bring the 995 motion earlier, failed to object to the opinion of the gang
expert at trial, and failed to seek dismissal of the gang allegation after the prosecution
completed its case at trial. To prevail on a claim of ineffective assistance of counsel, an
appellant must show deficient performance and prejudice from the deficient performance.
(E.g., Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma
(1987) 43 Cal.3d 171, 215-218.) Based on the foregoing discussion, Santana does not
show prejudice and, with the possible exception of a delay in bringing a section 995
motion, does not show deficient performance by counsel.
No Error Regarding Investigation of Jury Misconduct
Santana contends that the trial court failed to conduct an adequate inquiry
after two jurors, on separate occasions, informed the court that they feared for their
safety. He contends that, in the absence of such inquiry, it is impossible to determine
whether the verdicts were based solely on consideration of the evidence or resulted from
improper influences.
The constitutional right to a fair trial requires that the jury decide the case
solely on the basis of evidence from witnesses. (People v. Nesler (1997) 16 Cal.4th 561,
578.) When a trial court is put on notice of the possibility a juror has been improperly
influenced, the court must make whatever inquiry is reasonably necessary to determine if
the juror should be discharged and whether improper influences may have tainted
deliberations by other jurors. (People v. Burgener (1986) 41 Cal.3d 505, 519-520,
disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 751-754.) The
decision whether to investigate the possibility of juror bias and the extent of any
investigation rests within the sound discretion of the trial court. (People v. Cleveland
(2001) 25 Cal.4th 466, 478.) There was no abuse of discretion in this case.
During a break before closing arguments, Juror No. 4 informed the court
that he feared retaliation because Santana lived near the juror. The trial court questioned

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the juror who stated that he could not vote for guilt due to his fear even if the evidence
warranted a guilty verdict. The trial court excused Juror No. 4 for cause, but did not
question any of the other jurors.
Juror No. 4 stated that he had told one other juror that he lived near
Santana, but the trial court reasonably concluded that further investigation was not
necessary because there was no indication of any discussion of juror safety among the
jurors, and the safety concern of Juror No. 4 was not likely to have created a bias against
Santana by any juror. (See People v. Nesler, supra, 16 Cal.4th at pp. 578-579.) Jurors
would not interpret the expression of fear by Juror No. 4 as a belief that Santana was
guilty.
During the third day of jury deliberations, the foreperson sent a note to the
court covering three matters, including another juror's expression of concern for her
safety because she saw Santana's brother at her gym. The jury reached a verdict before
the court could respond to the note. When the jury returned to the courtroom with the
verdict, the court asked about the note received earlier in the morning and the foreperson
indicated that the note did not affect the jury in reaching a verdict. No further action on
the juror's safety concern was requested by defense counsel or taken by the court.
Santana contends that the second juror's safety concern increased the need
for further investigation. We disagree. The court obtained a representation from the jury
foreperson that no action on the juror's safety concern was necessary and defense counsel
did not seek any further inquiry by the court. Failure to request further action in the trial
court waives the matter on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1047;
People v. Wisely (1990) 224 Cal.App.3d 939, 947-948.) Additionally, the court could
reasonably conclude that the second juror's safety concern had no effect on jury
deliberations. Because the second juror did not express concern until the time a verdict
was about to be reached, there is no indication that her concern tainted the deliberations
or that the jury as a whole reached its verdict on any basis other than the evidence
presented at trial.

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Moreover, the standard for reviewing a claim of jury misconduct of this
sort must be pragmatic and mindful of influences that typically affect jurors. (See In re
Hamilton (1999) 20 Cal.4th 273, 296.) It is unsurprising that jurors would entertain some
fear for their safety in a gang-related trial. Some fear of retaliation from other gang
members in the event of a conviction may be unavoidable, but there is no reasonable
possibility that such fear would cause jurors to find Santana guilty for any reason other
than that the evidence satisfied the reasonable doubt legal standard.
No Ineffective Assistance in Failing to Call Witness
Santana contends that he received ineffective assistance of counsel when
his trial attorney failed to call Richard Morales as a defense witness during trial.
To prevail on a claim of ineffective assistance, an appellant must show
deficient performance under an objective standard of professional reasonableness, and
that, but for the deficient performance, it is reasonably probable that appellant would
have obtained a more favorable verdict. (E.g., Strickland v. Washington, supra, 466 U.S.
at pp. 687-688, 694; People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.) Counsel's
tactical decisions are seldom second-guessed on appeal, and we will not find deficient
representation unless the record affirmatively shows that no rational tactical purpose for
the challenged act or omission is possible. (Strickland, at pp. 690-691; People v. Hart
(1999) 20 Cal.4th 546, 623-624.)
Here, a critical element of the defense strategy was to impeach Mata's
identification of Santana, and defense counsel sought to do so, in part, by disputing the
accuracy of Mata's physical description of Santana to the police. In particular, Mata told
the police, and later testified at trial, that Santana was bald. Friends of Santana testified
that Santana had hair. Before jury selection, Santana's counsel learned that police
officers had stopped a vehicle occupied by Santana and friend Rick Morales two days
after the offenses. According to counsel, Morales claimed the police took a photograph
of Santana.
Defense counsel demanded that the prosecution produce the photograph in
the expectation or hope that it would support the defense position that Santana had hair at

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the time of the offenses. The prosecutor stated that Santana was under surveillance at the
time and the police only photographed Morales as an unknown associate of a murder
suspect. The prosecutor, however, promised to investigate further and produce any
photograph of Santana that existed. No photograph was produced and Morales was not
called as a witness by the defense.
The record offers no clue as to why counsel elected not to call Morales as a
witness for the defense, or even that Morales was available as a witness at the time of
trial,2 but there were sound tactical reasons that may have influenced counsel's decision.
Counsel may have had reason to believe Morales would not testify favorably to the
defense. Counsel might have been concerned that Morales might not have seen the
police take Santana's photograph, or Morales might testify that Santana was bald, or that
the prosecution could have impeached Morales. Also, other witnesses were available to
testify that Santana had hair on his head.
10-Year Gang Enhancement Unauthorized
Santana contends that the trial court erred in imposing a 10-year gang
enhancement to the life without possibility of parole sentences. He argues that the gang
enhancement statute does not authorize a determinate prison term to be added to
sentences of imprisonment for life. (§ 186.22, subd. (b)(5).) We agree.
"Section 186.22, subdivision (b) establishes alternative methods for
punishing offenders who have committed felonies for the benefit of a criminal street
gang. For most felonies punishable by a determinate term, the sentence will be enhanced
by a term of years under section 186.22, subdivision (b)(1). But when the defendant has
been convicted of a felony that already carries a life sentence, there is no specific
enhancement for a term of years. Instead, section 186.22, subdivision (b)(5) requires that
the defendant serve a minimum of 15 calendar years before being considered for parole.
(See People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) The 15-year minimum parole
eligibility period of section 186.22, subdivision (b)(5) applies to all life sentences without
2 Five months after trial, Morales made a sworn statement that was filed as part of
a new trial motion, which claimed the police took a photograph of Santana.

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qualification, and is imposed in lieu of the determinate enhancement under subdivision
(b)(1), not in addition to it." (People v. Johnson (2003) 109 Cal.App.4th 1230, 1239.)
Although application of the gang enhancement statute appears irrelevant when a sentence
of life without possibility of parole is imposed, instances where the statutory scheme may
have no practical effect do not allow us to disregard the plain language of the statute and
impose an enhancement where none is authorized.
The trial court also imposed a three-year gang enhancement to the sentence
for robbery. We reject Santana's assertion that by a "parity of reasoning" this sentence is
also unauthorized because the robbery sentence runs concurrently with the murder
sentences. Robbery is not an offense punishable by life imprisonment.
DISPOSITION
The sentence is modified to strike the 10-year term added to the murder
sentences pursuant to section 186.22, subdivision (b). The superior court shall modify
the abstract of judgment accordingly. (See § 186.22, subd. (b)(5).) This modification
does not alter the sentence for robbery (count 4). The clerk of the superior court shall
forward a copy of the amended abstract of judgment to the Department of Corrections.
As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
COFFEE, J.

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Gary R. Hahn, Judge
Superior Court County of Los Angeles
______________________________
Edward H. Schulman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L.
Mar, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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