Opinion
H040821
06-20-2023
THE PEOPLE, Plaintiff and Respondent, v. EDILBERTO CABRERA et al., Defendants and Appellants
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC773033, CC892981, C1104657, CC592434
Danner, J.
This appeal arises from a killing and other crimes that occurred in 2007 for which defendants David Ayala, Carlos Valdez, Alex Cruz Garcia, David Arthur Estrada, Ediberto Cabrera, Samuel Michael Razo, and Angel Benito Zamora (collectively, defendants) were tried in 2013. All defendants were convicted of murder with a gang enhancement; all but one were also convicted of two counts of assault with a deadly weapon and one count of battery with gang enhancements. A gang murder special circumstance was found true as to Ayala and Valdez, who were convicted of first degree murder. Ayala, Valdez, and Razo were juveniles at the time of the murder. In the 10 years that have elapsed since defendants' convictions, the law has materially changed with significant consequences for this appeal.
Defendants raise many issues on appeal, including challenges to the sufficiency of the evidence, claims of instructional error, constitutional and evidentiary error, and sentencing error. The Attorney General concedes that the second degree murder convictions of Razo, Zamora, Cabrera, Garcia, and Estrada must be reversed under Penal Code section 1172.6, subdivision (g), which took effect after their convictions and abrogated the natural and probable consequences theory of murder. The Attorney General also concedes that Ayala, Valdez, and Razo are entitled to remands to juvenile court for transfer hearings under Proposition 57, which also took effect after their convictions. The Attorney General contests all of defendants' other arguments.
Unspecified statutory references are to the Penal Code.
Razo and Valdez were 17 years old at the time of the offenses; Ayala was 16 years old.
We accept the Attorney General's concessions. In addition, we conclude that the first degree murder convictions of Ayala and Valdez cannot be upheld due to prejudicial violations of their Sixth Amendment rights as interpreted by intervening case law. Because this error was prejudicial only as to the premeditation and deliberation element of the first degree murder counts, the prosecution may elect as to Ayala and Valdez to accept a reduction to second degree murder or to retry the first degree murder counts. We also conclude as to all defendants that the gang enhancements must be reversed due to amendments to section 186.22 that are retroactive.
Accordingly, we reverse all of the judgments against defendants and remand for further proceedings. The court shall remand Ayala, Valdez, and Razo to the juvenile court for transfer hearings. The remaining defendants shall either be retried on the vacated counts and enhancements or resentenced on the assault with a deadly weapon and battery counts, except for Estrada who was not convicted of those counts.
I. FACTUAL AND PROCEDURAL HISTORY
Michael Gonzalez hosted a birthday party at his residence on Brigadoon Way in San Jose on the evening of July 7, 2007. Fernando Hortia, Adrian Medina, and Fernando, Aaron, and Ruben Jacquez attended Gonzalez's party together.
Defendants, who were not acquainted with anyone who lived at Gonzalez's residence, also attended the party. They did know the family who lived next door to Gonzalez at the southeast corner of Brigadoon and Camperdown, across the street from Brigadoon Park. Defendants were members or associates of a group called Los Latinos Locos (Triple Ls), which claimed Brigadoon Park and the surrounding area as its territory.
We deny Garcia's request for judicial notice of Google Maps aerial images of the area around the crime scene (which were not introduced at trial). This area was well described by witnesses and displayed in exhibits at trial.
By midnight or 1:00 a.m., the party had attracted a crowd of between 60 and 200 people. As Medina and Hortia were returning from their car with a bottle of liquor, they were attacked by a "mob" of 15 to 20 Hispanic males who (in their words) "obviously looked like gang members" and ran towards them from the other side of the street. The men running towards them said" '[f]uck you'" and "as an entity" began hitting Medina and Hortia. The Jacquezes saw what was happening and tried to help their friends.
In the melee that followed, Hortia was hit in the head multiple times with a metal object, possibly a crowbar. As Aaron Jacquez tried to help Hortia, Aaron was punched in the mouth a couple of times. Medina was surrounded by about a dozen men.
Defendant Valdez, who was wearing a distinctive red and black Michael Vick Atlanta Falcons jersey and a St. Louis Cardinals hat, struck Medina in the head repeatedly with a bat, and defendant Ayala repeatedly stabbed Medina in the chest and abdomen with a knife. Ruben Jacquez, who was trying to reach Hortia and Medina, was hit in the face with a pipe. Defendants Garcia, Cabrera, Estrada, Razo, Alfonso Chavoya, and Jose Castro participated in the attack on Medina, Hortia, and the Jacquezes. Medina died from both the stab wounds and the blunt force injuries to his head. Ruben was seriously injured.
The jury trial began in May 2013. The prosecution's theory at trial was that defendants attacked the victims to promote the reputation of Triple Ls, which the prosecution contended was a criminal street gang. In October 2013, the jury convicted Ayala and Valdez of first degree murder (§§ 187, 189), and found true a gang murder special circumstance (§ 190.2, subd. (a)(22)), a gang enhancement (§ 186.22, subd. (b)), and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) allegations.
The jury convicted Garcia, Estrada, Cabrera, Razo, and Zamora of second degree murder (§ 187) and found true the gang enhancement (§ 186.22, subd. (b)) allegations. The jury convicted all defendants, except for Estrada, of two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) [count 2: Hortia; count 3: Ruben Jacquez] and one count of battery (§ 242) [Aaron Jacquez] and found true the gang enhancement allegations (§ 186.22, subds. (b), (d)) as to these counts.
We will sometimes refer to this crime as aggravated assault.
The operative pleading also alleged that Cabrera and Zamora had each suffered a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)) and that Garcia had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). These allegations were bifurcated, and defendants waived their rights to a jury trial on them. Garcia admitted the prison prior allegation. The court found true the strike and serious felony prior allegations after a court trial. Following Romero motions by Cabrera and Zamora, the court struck the strike findings.
In 2014, the trial court sentenced all defendants to life terms in prison.
Defendants attack their convictions and sentences on a number of grounds. We begin with their challenges to the sufficiency of the evidence.
II. SUBSTANTIAL EVIDENCE ISSUES
" 'It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the "substantial evidence" test. Under this standard, the court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.] 'In applying this test, we . . . presume in support of the judgment the existence of every fact the [fact finder] could reasonably have deduced from the evidence.' [Citation.]' "We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the [fact finder]'s verdict.'" (People v. Czirban (2021) 67 Cal.App.5th 1073, 1091.)
A. Premeditation and Deliberation: Ayala and Valdez
Ayala and Valdez were convicted of first degree premeditated murder. They contend that the prosecution failed to present substantial evidence that either of them premeditated or deliberated before they killed Medina.
"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill." (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) First degree premeditated murder requires proof of a decision to kill. "[T]he killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (People v. Chiu (2014) 59 Cal.4th 155, 166 (Chiu).)
"' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.]' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." '" [Citation.]' [Citations.] [¶] People v. Anderson (1968) 70 Cal.2d 15 (Anderson) discusses three types of evidence commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. [Citation.] Drawing on these three categories of evidence, Anderson provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson's goal 'was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' [Citation.] But, as we have often observed, 'Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.'" (People v. Solomon (2010) 49 Cal.4th 792, 812.)
Thus, the three types of evidence identified in Anderson need not "be present in some special combination . . . [nor must] they be accorded a particular weight, nor is the list exhaustive." (People v. Manriquez (2005) 37 Cal.4th 547, 577.) The essential question is" 'whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (Ibid.) Nevertheless, "brutality alone cannot show premeditation; a brutal killing is as consistent with a killing in the heat of passion as with a premeditated killing." (People v. Pensinger (1991) 52 Cal.3d 1210, 1238; People v. Anderson (1968) 70 Cal.2d 15, 24-25 ["the infliction of multiple acts of violence on the victim" does not by itself prove premeditation and deliberation].)
1. Ayala
Ayala contends that the evidence showed only that he "acted quickly, in a frenzy and without thought or reflection" "in [a] rash, explosion of violence after seeing his associates engaged in a physical altercation with Medina and Hortia." Ayala argues that "there is nothing in the record to indicate that [he] intended to kill Medina before he pulled out the knife or while he was stabbing him, or that he carefully weighed considerations for and against killing Medina at any time before causing his death." In his view, "[t]here was no evidence of planning activity, no evidence of motive and there was nothing about the facts of the case that could support an inference that there was a pre-existing design to kill." Ayala asserts that he was not involved in the initiation of the attack but only joined in after it had begun. He maintains that because, in his view, there was no evidence of planning or motive, "[h]is conduct showed nothing more than an intent to kill."
Ayala argues that he was across the street talking to some women when the altercation began. But only Estrada testified that Ayala was across the street from the party talking to the women when the altercation began. No one else, including the women, confirmed this testimony. One woman, who had almost no recollection of the events, testified on cross-examination by Ayala's trial counsel, that one of the males talking to her friend had a ponytail, which Ayala contends was consistent with his appearance at that time.
We do not agree with Ayala that there was no evidence of planning or motivation. Evidence was presented that it was Triple Ls' practice to crash parties on their turf to "[l]et [their] presence be known." As a party was winding down, Triple Ls would start fights "[j]ust [to] let them know this is our neighborhood." Ayala was a Triple Ls gang member with a Triple Ls tattoo on his abdomen, so the jury could reasonably infer that he was aware of Triple Ls' practice and shared the motivation for it. Evidence was presented that Ayala generally carried a knife and had previously stabbed people on multiple occasions while in the company of his fellow Triple Ls members.
When Ayala, wearing gang attire and carrying a knife, joined a large group of his fellow Triple Ls members, many of them wearing Triple Ls gang attire, in attending a house party being held by strangers on Triple Ls turf, the jury could reasonably infer that he planned to join in a violent attack at the end of the party. That Triple Ls members arrived at the party together, and that some of the Triple Ls were "acting all hard" (i.e., displaying their toughness) during the party provided further evidence of both Triple Ls' plan and its motivation. That Ayala did not know Medina and therefore did not have him in mind as the specific target of the attack before another Triple Ls member initiated the attack does not mean that there was no evidence of planning.
The evidence of planning and motivation to join the violent attack must be viewed in conjunction with evidence that the manner in which Ayala stabbed Medina was the product of a decision to kill rather than simply a rash, unconsidered "frenzy" of violence. Ayala brought a knife to the party. Evidence was presented at trial that Garcia began the attack by initiating a confrontation with Medina and Hortia. Garcia struck Hortia, and a swarm of a dozen or more other Hispanic males descended on Hortia and Medina. Ayala immediately joined in the attack on the already-surrounded Medina and stabbed him repeatedly in the chest and abdomen. Ayala continued stabbing Medina, even as Medina was lying unresponsive on the ground on his back. Ayala sat on top of Medina, pinned him to the ground, held him by his T-shirt, and continued to stab him in the chest. Ayala continued stabbing Medina even as Valdez hit Medina's head with a bat and as the stab wounds inflicted by Ayala caused Medina's intestines to extrude from his body. The jury could reasonably conclude from this evidence that Ayala was not simply acting in a frenzy but had made a decision to personally ensure Medina's death.
We conclude that Ayala's preparation for violence, his motivation to enhance his own and Triple Ls' reputation by violence, his rush to join the attack, and his extended, relentless stabbing of the already incapacitated Medina in the abdomen provided a sufficient foundation for a reasonable inference that Ayala had made a premeditated and deliberate decision to kill Medina before he inflicted the fatal wounds. We reject Ayala's challenge to the sufficiency of the evidence of premeditation and deliberation.
2. Valdez
Valdez contends that there was no evidence of "a reasoned decision to kill Medina, or of any reason to kill Medina, or of a method of execution suggestive of a preconceived design." He argues that "[t]he pointless, explosive brutality of the act here testifies to a raging impulse rather than sober reflection."
The evidence reflects Valdez, like Ayala, was a committed Triple Ls member, and he had a Triple Ls tattoo on his finger and the word" 'Evergreen'" (part of Triple Ls' territory) tattooed on his stomach. The jury could reasonably infer that, like Ayala, he shared Triple Ls' plan to start fights at the end of any parties held in its territory. Once Garcia initiated the attack, Valdez, who was wearing attire consistent with the Triple Ls, immediately obtained a metal bat. Valdez joined the attack on Medina, who was at that time surrounded by more than a dozen people. While fellow Triple Ls members kicked Medina in the face, Valdez repeatedly struck Medina with the bat on the top of the head and in the face, knocking Medina to the ground. As Medina lay on the ground, unresponsive and completely disabled, being stabbed by Ayala, Valdez continued to hit Medina in the head, swinging the bat with two hands and striking Medina repeatedly in the forehead. Medina suffered at least a dozen blunt force injuries to his head and neck and a skull fracture. His brain had contusions and hemorrhaging.
We decide that substantial evidence supports the jury's conclusion that Valdez killed with premeditation and deliberation. We reject Valdez's challenge to the sufficiency of the evidence of premeditation and deliberation.
B. Murder, Assaults, and Gang Enhancements: Razo
Razo contends that the prosecution did not present substantial evidence of his culpability for the murder of Medina, the assaults on Hortia and Ruben Jacquez, or the gang enhancements because there was no evidence that he took any actions that were for the benefit of Triple Ls.
Razo does not challenge the sufficiency of the evidence to support his battery conviction.
The prosecutor premised Razo's liability for the murder of Medina and the assaults on Hortia and Ruben on Razo's participation in Triple Ls' group attack on Medina and his companions. The jury was instructed on the natural and probable consequences theory of liability for these offenses with the target crime of simple assault.
As we explain post, the natural and probable consequences theory of murder is no longer valid (§ 188, subd. (a)(3)), and the murder count against Razo cannot be upheld. We consider that theory of murder here only to determine whether the prosecutor failed to present substantial evidence under that theory, which would bar retrial.
The natural and probable consequences theory is an extension of aider and abettor liability. An aider and abettor is a person who knowingly and intentionally encourages and aids a perpetrator in the commission of a criminal offense. (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) The natural and probable consequences theory extends the aider and abettor's liability not only to the crime that he or she encouraged and aided but also to any other crime committed by the perpetrator if that other crime was a natural and probable consequence of the crime the aider and abettor encouraged and aided.
"To apply the 'natural and probable consequences' doctrine . . . [, t]he jury must decide whether the defendant (1) with knowledge of the confederate's unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant's confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated." (Prettyman, supra, 14 Cal.4th at p. 267.)
The prosecutor's theory at trial did not depend on showing which Triple Ls members committed any of the offenses. Hortia testified that he and Medina were engulfed by a "mob" of 15 to 20 Hispanic males, who "obviously looked like gang members," "running towards [them]" and hitting him and Medina "as an entity." Razo, like Ayala and Valdez, was a Triple Ls member who came to the party, which was held in a location on Triple Ls' turf, with a large group of his fellow Triple Ls members. The jury could readily infer that as a Triple Ls member Razo was aware that Triple Ls made a practice of instigating violent attacks under these circumstances. Further, there was substantial evidence from which the jury could infer that after Garcia instigated the attack on Hortia and Medina, Razo immediately joined in the attack.
The prosecutor argued: "[I]f a co-participant does it, then under the eyes of the law, the defendant did it." He added, "The number of people who surrounded Adrian Medina had a two-fold effect. One, it blocked an escape path for Adrian; [and two], it prevented people from coming to his aid, and they were as crucial to this as the stabber and the batter."
Razo admitted to the police that he struck one of the victims four times. Razo's brother, Roman Razo (Roman), corroborated this admission, telling the police that he saw Razo "hit" a short, chubby man a couple of times during the altercation. Razo's central position in the altercation was confirmed by his statement to Ayala as they left the scene:" 'Why didn't you tell me that . . . you were stabbing him. I got guts all over my hands.'" (Italics added.) Although Razo argues that this statement could have referred to his exposure to "transferred" blood on Ayala's clothing after the altercation, the jury could have reasonably rejected that theory and inferred instead that Razo was next to Medina as Ayala was stabbing Medina to death. Razo's admissions to the police that he heard someone say to Medina "fuck you" just before the fight began and heard someone yelling "Ls" further confirmed his proximity to the altercation and his knowledge that the attack was a group action by Triple Ls.
Razo asserts that the murder and assault counts and the gang enhancements were not supported by substantial evidence because he “only hit a person after being assaulted himself.” This claim is premised on statements by Razo and his brother, Roman, to the police that Razo was hit by someone before he hit anyone. Roman told the police that a man hit Razo and Razo hit the man four times, knocking him to the ground. Razo, who initially denied any participation in the altercation, eventually admitted that he hit one man. Asked repeatedly why he had done that, Razo three times said “I don't know.” The fourth time he was asked, he said "the one guy hit me." Razo told the police that he hit "one person," who was facing him, four times. He later told the police that he "just watching" when "someone hit [him]." The jury was not obligated to credit Razo's statement to the police or his brother's statement supporting him. No impartial witness supported Razo's claim, which the prosecutor explicitly asked the jury to discredit.
Ruben Jacquez testified that he hit a man who came towards him and looked at him with "his fists made like he was ready to hit someone." Ruben did not specifically testify, as Razo claims on appeal, that the man he hit "did not have his hands raised in a fighting stance." Ruben did not recall whether the man's hands were "raise[d]," but Ruben testified that the man he hit did not hit him. Thus, Ruben's testimony does not support Razo's appellate claim that the record conclusively establishes that he acted only in response to being hit.
We reject Razo's insufficiency of the evidence claims.
C. Insufficient Corroboration of Accomplice Testimony: Estrada
Estrada contends that the evidence is insufficient to support his convictions because the only witnesses who connected him to the assaults and the murder were accomplices who, in his view, were not corroborated. He argues that evidence that he suffered a cut during the altercation did not corroborate the testimony of the accomplices because there was an innocent explanation for the injury.
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
" '[A]n accomplice's testimony is not corroborated by the circumstance that the testimony is consistent with the victim's description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits. Rather, under section 1111, the corroboration must connect the defendant to the crime independently of the accomplice's testimony.' [Citation.]' "The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration." [Citations.] The evidence "need not independently establish the identity of the victim's assailant" [citation], nor corroborate every fact to which the accomplice testifies [citation], and" 'may be circumstantial or slight and entitled to little consideration when standing alone.'" '" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 628, italics added (Beck and Cruz).)
Two accomplices testified at trial about Estrada's role in the charged crimes. Triple Ls members Alfonso Chavoya and Jose Castro participated in the altercation in which Medina was killed and his friends were assaulted and battered, and they testified at trial for the prosecution. Chavoya testified that he saw Estrada a few feet away from Medina, "in the middle of the fight." Jose Castro testified that he saw Estrada swing a bottle toward Medina. Both of them testified that Estrada had a wound on his forearm after the altercation.
It is undisputed that Chavoya and Jose Castro were accomplices, and they are the two accomplices that Estrada claims were not corroborated. Estrada relies on the investigating officer's testimony that no witnesses he interviewed, other than Chavoya and Jose Castro, identified Estrada as one of the participants in the altercation. Estrada asserts that this testimony establishes a lack of corroboration, though he acknowledges that the prosecution relied on the cut on Estrada's arm as corroboration of the accomplice testimony.
We decide that evidence of the cut Estrada suffered in the altercation was sufficient corroboration of the accomplice testimony. When Estrada was interviewed by the police in February 2008, he admitted that he had been at the party, had seen Medina hit with an aluminum bat, and had himself been "stabbed" that night. The police observed scars on Estrada's outer left forearm from puncture wounds, and Estrada told the police that he could not explain how he had been wounded that night.
Estrada testified at trial and denied hitting Medina or Hortia over the head with a bottle. He stated that at the end of the party he was talking to two women across the street from the party when he heard a commotion and saw Garcia attack Hortia and others attack Medina. When he saw someone hitting Medina with a bat, he became concerned about Garcia's safety, ran up to him, pulled him away from the attack, and ran with him toward Brigadoon Park. Estrada testified that he did not notice the cut on his arm until they arrived at Garcia's home, and he had no idea how he had been cut.
Estrada maintains that the cut to his forearm could not supply the requisite corroboration because there was a plausible innocent explanation for it. He points to testimony by Roman that Hortia was carrying a bottle when he was attacked by Garcia and that Hortia dropped this bottle when he was attacked and the bottle broke. Estrada suggests that he could have been cut by this broken bottle rather than incurring the cut due to his participation in the fatal attack on Medina.
Estrada relies on People v. Robinson (1964) 61 Cal.2d 373 (Robinson). In Robinson, Charles Drivers and his codefendants were convicted of murdering Lewis Joseph Grego. (Id. at pp. 377-378.) Drivers's fingerprints were found in the intended getaway car, registered to one of his codefendants, which had been abandoned at the scene. (Id. at p. 379.) However, there was no evidence as to when his fingerprints had been left in the car. (Id. at p. 398.) The prosecution presented no evidence of Drivers's involvement in the murder, but Drivers's codefendant testified in his own defense and, under improper cross-examination by the prosecution, implicated Drivers. (Ibid.) The California Supreme Court held that even if the codefendant's cross-examination testimony had been properly admitted, it would not have been sufficient to support the conviction because there was insufficient corroboration of the codefendant's testimony. (Ibid.) The court observed that the fingerprints "showed no more than that Drivers had been present in or about the Ford on some recent date," and therefore did not demonstrate any connection between Drivers and the murder. (Ibid.) "Drivers' fingerprints on the Ford are as equally susceptible to an inference that they came there innocently, as they are to any inference that their presence connects defendant with the commission of the crime." (Ibid.) "At best, the fingerprints merely placed Drivers in the car at some time prior to the time the car was discovered." (Id. at p. 400.)
Robinson does not assist Estrada. Here, Estrada admitted that the cut was inflicted during the altercation. The most reasonable explanation for the cut was that it was inflicted by Ayala's knife. Unlike in Robinson, the cut was not "equally susceptible to" an innocent explanation. (Robinson, supra, 61 Cal.2d at p. 398.) No broken bottles were found at the scene, and no evidence explains how a bottle dropped on the ground by Hortia could have wounded Estrada's outer forearm if he did not participate in the altercation. Estrada offers no explanation for how this dropped bottle could have caused his cut.
Estrada also asserts that the prosecutor improperly asked the jury to speculate, in the absence of expert testimony, that the wound to his arm was similar to a wound to Medina's arm, suggesting that this meant that the same weapon had caused both wounds. Even if the prosecutor's argument, to which there was no objection, was improper, the cut still corroborated the accomplice testimony, as it was undisputed that it was inflicted during the altercation.
As Estrada acknowledges, accomplice testimony may be corroborated by evidence that is" '" 'circumstantial or slight and entitled to little consideration when standing alone.'" '" (Beck and Cruz, supra, 8 Cal.5th at p. 628.) The cut suffered by Estrada during the altercation was more than slight corroboration of the accomplice testimony that he was involved in the attack on Medina, during which Ayala was using a knife. We reject Estrada's challenge to the sufficiency of the corroborating evidence.
III. SENATE BILL NOS. 1437 AND 775
Estrada, Razo, Zamora, Cabrera, and Garcia challenge their murder convictions based on statutory changes made after their convictions by Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Senate Bill No. 775 (2021-2022 Reg. Sess.), which eliminated natural and probable consequences liability for murder and permitted defendants with nonfinal judgments to challenge their murder convictions on that ground in their direct appeals. The Attorney General concedes the validity of their challenge.
Senate Bill No. 775 added subdivision (g) to what is now section 1172.6. That subdivision reads: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to [s]ections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018)." (§ 1172.6, subd. (g).) Senate Bill No. 1437 added subdivision (a)(3) to section 188. It provides: "Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
Before Senate Bill No. 775 took effect, these five defendants filed resentencing petitions under former section 1170.95 (now section 1172.6). We have disposed of their appeals from the denials of those petitions by separate order filed this day.
Senate Bill No. 1437 also added subdivision (e) to section 189. It provides: "(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2." (§ 189, subd. (e).) Since felony murder was not a theory in this case, this subdivision is not at issue here.
As a result of these statutory changes, a defendant who was convicted of murder on a natural and probable consequences theory, which does not require malice, may challenge that conviction on direct appeal and will be entitled to vacatur of the murder count. The prosecution, if it so elects, may retry the murder count under current law. "A postconviction change in the law invalidating a prosecution theory is the equivalent of a trial error because it means the jury was instructed on a legally invalid theory." (People v. Hola (2022) 77 Cal.App.5th 362, 375 (Hola).) "When there has been a postconviction change in the statutory or decisional law that invalidates a theory upon which the conviction was based and reversal is warranted, appellate courts remand the case to the trial court to allow the prosecution to retry the defendant on a legally valid theory." (Id. at p. 371.)
In this case, the prosecutor presented two theories-a direct aider and abettor theory and a natural and probable consequences theory-to the jury as to the liability of Estrada, Razo, Garcia, Zamora, and Cabrera for the murder of Medina. The jury was instructed on both theories. The Attorney General concedes that he cannot establish beyond a reasonable doubt that the jury based its verdicts on the direct aider and abettor theory, rather than on the now legally invalid theory of natural and probable consequences. (See Chiu, supra, 59 Cal.4th at p. 167.) Having carefully reviewed the record, we accept the concession. Accordingly, we must vacate the second degree murder convictions of Estrada, Razo, Zamora, Cabrera, and Garcia and remand for potential retrial of those counts.
As Estrada was not convicted of any other counts, we do not reach any of his remaining contentions.
Razo argues that he cannot be retried on the murder count because the prosecutor did not present substantial evidence at trial to support a direct aiding and abetting theory as to him. We reject this contention. Neither due process nor double jeopardy concerns bar retrial because the prosecution made its case under the law as it previously existed. (Hola, supra, 77 Cal.App.5th at pp. 373-376.) The prosecution is entitled to retry Estrada, Razo, Zamora, Cabrera, and Garcia for second degree murder under current law.
IV. INSTRUCTIONAL ISSUES
A. Failure to Give CALCRIM No. 522 (Provocation as to Degree)
Ayala and Valdez, who were convicted of first degree premeditated murder, contend that the trial court prejudicially erred in failing to instruct the jury with CALCRIM No. 522.
CALCRIM No. 522 provides: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder." (CALCRIM No. 522.)
"Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. [Citation.] To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332, italics added.)
"[A]n instruction that provocation may be sufficient to raise reasonable doubt about premeditation or deliberation, such as CALJIC No. 8.73 or CALCRIM No. 522, is a pinpoint instruction to which a defendant is entitled only upon request where evidence supports the theory. [Citation.] The trial court is not required to give such an instruction sua sponte." (People v. Rivera (2019) 7 Cal.5th 306, 328.)
Neither Ayala nor Valdez requested CALCRIM No. 522. Cabrera requested several jury instructions, including both CALCRIM No. 570, which relates heat of passion and provocation to voluntary manslaughter, and CALCRIM No. 522, based on what he argued was evidence of provocation. Cabrera's written request pointed to the following evidence: "One witness testified that Medina said something to the effect of 'Those guys ain't shit' and that Hortia called Alex Garcia and others 'Cholos.' There is also evidence (David Estrada) that the fistfight started when Hortia pushed or bumped into Alex Garcia, and that this was preceded by fighting words (fuck you) which could have been spoken by Hortia or Medina (per Jose Castro)." (Boldface omitted.) Although the trial court instructed the jury with CALCRIM No. 570, it did not instruct the jury with CALCRIM No. 522.
The Attorney General contends that Ayala and Valdez forfeited this claim because (1) the record does not memorialize any discussions of this instruction, (2) no defendant objected to the court's failure to give CALCRIM No. 522, and (3) the request might have been "withdraw[n]."
We decline to apply the forfeiture doctrine on this record. One defendant made a written request that the court instruct the jury with CALCRIM No. 522. The trial court had ruled in limine that any objection by one defendant would be sufficient to preserve an issue for all defendants. While the court did not explicitly expand this ruling to include all requests and motions, it is reasonable to conclude that defendants perceived one defendant's instructional request to be sufficient to memorialize the request without all defendants expressly joining in the request. We therefore proceed to the merits of the contention.
To establish that the trial court prejudicially erred in failing to instruct the jury with CALCRIM No. 522, Ayala and Valdez must show that the instruction was supported by substantial evidence that Ayala or Valdez killed Medina in response to provocation. (People v. Nelson (2016) 1 Cal.5th 513, 542.)
Ayala and Valdez rely on the evidence cited in Cabrera's written request as support for the instruction. However, the record contains no evidence that Ayala or Valdez heard any of the referenced statements by Hortia or Medina or saw any contact between Garcia and Hortia before they joined the attack on Medina. For this reason, we conclude that the evidence cited by Ayala and Valdez does not support the giving of the instruction.
Hortia and Ruben Jacquez testified that it was the attackers who said" '[f]uck you'" before attacking Hortia and Medina. Razo told the police that he had heard someone say to Medina "fuck you" just before the attack began. No evidence was presented that Ayala or Valdez heard the "fuck you" or could have subjectively believed that this remark was made by Medina (or Hortia).
Victim Aaron Jacquez testified that, while they were inside the house dancing, Medina said" 'Man, fuck these guys.... [T]hey ain't shit anyways.'" No evidence reflected that Ayala or Valdez was present in the house when these statements were made or overheard these statements.
Jose Castro testified at trial that, as he and Garcia were leaving the party, Hortia commented to them:" 'Ooh, cholos.' " Jose Castro also testified that he and Garcia looked at each other and laughed. No evidence was presented that Ayala or Valdez heard this statement or was in a position to hear it.
"Cholos" refers to gang members.
Jose Castro testified further that Garcia, after conversing with some other men, approached Medina and Hortia and had a brief conversation with them that Jose Castro could not hear. No evidence was presented that Ayala or Valdez participated in this conversation or overheard it.
Roman told the police that he observed a "Creekside" guy pointing out Medina to Garcia and saying "he thinks he's hard and I guess he wants to fight one of my friends." It was after this occurred that Garcia pulled Medina aside, spoke to him, and then started hitting him in the face. There was no evidence that Ayala or Valdez heard or saw this interaction.
Evidence at trial suggested that Creekside was a group of Black men who were not Triple Ls members.
Estrada testified that he was across the street from the party with Ayala when he heard a commotion and saw Hortia or Medina stumble. He heard Hortia say something like "What's up, Ese." Then he saw "contact" between Garcia and Hortia, suggesting Hortia had bumped Garcia. Neither Estrada nor any other witness testified that Ayala or Valdez heard or saw this exchange.
The record lacks substantial evidence that either Ayala or Valdez was provoked. We reject Ayala's and Valdez's contention that the trial court erred in declining to give CALCRIM No. 522.
B. Natural and Probable Consequences Instructions
Defendants contend that the trial court prejudicially erred in giving a special instruction on natural and probable consequences liability that the court gave at the prosecutor's request in the midst of closing arguments. They assert that this special instruction erroneously and improperly redefined the meaning of "probable" as "possible."
Cabrera, Zamora, Garcia, Razo, and Estrada also challenge the propriety of the pattern natural and probable consequences instructions (CALCRIM No. 403) concerning the murder count. Since we vacate their murder convictions due to the invalidation of the natural and probable consequences theory of murder liability, we need not address this contention. Ayala and Valdez generally join all of their codefendants' contentions but do not explain how this contention relates to their liability for murder in light of the jury's findings that they intended to kill and acted with premeditation and deliberation. Therefore, they have forfeited that contention. To the extent that defendants may be attempting to challenge the validity of the natural and probable consequences theory generally as applied to crimes other than murder, binding authority forecloses this contention. (People v. Chiu, supra, 59 Cal.4th at p. 165; Prettyman, supra, 14 Cal.4th at p. 260; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
1. Background
The trial court instructed the jury before closing arguments. It gave the jury three instructions concerning the prosecutor's natural and probable consequences theory. The first instruction concerned the use of that theory to determine "whether a defendant is guilty of the crime of murder." This instruction identified three elements. The first element was that the defendant "is guilty of the crime of assault" on one of the four victims. The second element was that, during the assault, a "co-participant" in the assault "committed the crime of murder." The third element was: "[U]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the crime of murder was a natural and probable consequence of the commission of the assault." "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence."
The second natural and probable consequences instruction concerned the use of that theory to determine if a defendant was guilty of the assault with a deadly weapon counts. It, too, described three elements. The first element was the same: The defendant committed the crime of assault. The second element was that a coparticipant in the assault committed the crime of assault with a deadly weapon. The third element was: "[U]nder all of the circumstances, a reasonable person in the defendant's position would have known that the commission of assault with a deadly weapon or by means of force likely to produce great bodily injury was a natural and probable consequence of the commission of assault." This instruction contained the same definition of natural and probable consequence as the first instruction. The third instruction was identical to the second instruction except that it applied to the crime of battery rather than to the crime of assault with a deadly weapon.
Cabrera's trial counsel was the fourth defense attorney to present closing arguments. During Cabrera's trial counsel's closing argument, the prosecutor asserted, outside the jury's presence, that Cabrera's trial counsel "was focusing on the word 'likely[]' [a]nd he was interpreting that to mean, per the instruction, 'more likely than not,' although the instruction doesn't say that. It does have the word 'likely' and he interpreted it to be 'more likely than not.'" The court replied: "It means possible."
Razo's trial counsel, Ayala's trial counsel, and Zamora's trial counsel had already presented their closing arguments when Cabrera's trial counsel presented his closing argument.
The prosecutor asked the court to instruct the jury that" 'to be reasonably foreseeable, the consequence need not have been a strong possibility. A possible consequence which might reasonably have been contemplated is enough.'" The prosecutor identified this language as coming from the California Supreme Court's decision in People v. Medina (2009) 46 Cal.4th 913 (Medina). The court asked the prosecutor to prepare a proposed instruction for it to consider. The prosecutor submitted a written proposed special instruction. Garcia's trial counsel objected to the proposed special instruction on the ground that the jury had already been instructed on natural and probable consequences and several defense counsel had already given their closing arguments.
The passage in Medina is actually a quotation from a Court of Appeal decision quoting Witkin."' "[A] natural and probable consequence is a foreseeable consequence" ....' [Citation.] But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough ...." (1 Witkin & Epstein, Cal. Criminal Law (2d ed.1988) § 132, p. 150.)'" (Medina, supra, 46 Cal.4th at p. 920.)
Before the court decided whether to give the proposed special instruction, Cabrera's trial counsel continued his closing argument. He argued: "So at least one appellate court said that 'likely' could be defined as follows: 'A natural and probable consequence is a foreseeable consequence. To be reasonably foreseeable, the consequence need not have been a strong probability. A possible consequence which might reasonably have been contemplated ....'Might reasonably have been contemplated' is enough."
The prosecutor repeatedly objected to Cabrera's trial counsel's argument, and the court said "I'm going to draft an instruction on this" and conferred with counsel after the jury had left the courtroom. The discussion focused on the appropriate factors for the jury to consider in deciding whether a consequence was foreseeable. After some discussion, Garcia's trial counsel again objected to "anything other than what the [c]ourt has previously read to the jury" from the standard pattern instructions. The court replied: "The only other thing I'm going to read to the jury is the comment that [Cabrera's trial counsel] already read to them, which is - - did you guys get this? 'A natural and probable consequence is a foreseeable consequence. To be reasonably foreseeable, the consequences need not have been a strong probability. A possible consequence which might reasonably have been contemplated is enough.'" Garcia's trial counsel raised no further objection.
The jury returned, and the court instructed the jury, in relevant part:" 'A natural and probable consequence is a foreseeable consequence. To be reasonably foreseeable, the consequences need not have been a strong probability. A possible consequence which might reasonably have been contemplated is enough."
Razo's trial counsel subsequently requested the opportunity to present additional argument on the special instruction on natural and probable consequences. The court denied this request. After the jury had retired to deliberate, Razo's trial counsel made a record of the basis for his request. He was not concerned with the portion of the instruction quoted above. The portion he took issue with was:" 'A reasonably foreseeable consequence is to be evaluated under all of the factual circumstances of the individual case and is a factual issue to be resolve[d] by the jury.'" He challenged the" 'individual case'" language on the ground that a natural and probable consequence was not "individualize[d]." Defendants do not challenge that portion of the special instruction on appeal.
The prosecutor's rebuttal argument expressly addressed the special instruction. "[Cabrera's trial counsel] argued that 'likely' means more likely than not; he argued that to you. That is not the law. And Judge Cena has given you an additional instruction, which I'm reviewing here.... [¶] . . . [¶] . . . To be reasonably foreseeable, the consequence need not- need not have a strong probability; right? [¶] A possible consequence which might reasonably have been contemplated is enough." Garcia's trial counsel subsequently reiterated her objection to the special instruction.
2. Analysis
Defendants argue that the special instruction was erroneous because a "probable" consequence is one that is "likely," not one that its merely "possible." By instructing the jury that a "possible" consequence would satisfy the "probable" requirement, they contend that the trial court reduced the prosecution's burden of proof.
The prejudice arguments presented by Cabrera and Garcia are directed exclusively at whether the instruction was prejudicial in connection with their liability for the murder committed by Ayala and Valdez. Estrada and Zamora simply join these arguments without any further analysis. Since these arguments concern only these defendants' liability for the murder count, and we are vacating those counts and remanding for possible retrial on them, we need not address them.
Razo joins these contentions and, without offering any further analysis, summarily claims: "This error and its prejudice affect Razo's conviction for counts one [murder], two, and three [the assault with a deadly weapon counts]." (Italics added.) Because he provides no explanation of how the special instruction might have prejudiced him in connection with the jury's consideration of his liability for the assault with a deadly weapon counts, his argument is forfeited.
Valdez and Ayala join their codefendants' challenges to the special instruction. Valdez briefly asserts, without any citation to authority, that the special instruction made it "far easier" for the jury to conclude that the assaults with deadly weapons were a natural and probable consequence, but he provides no further explanation of this assertion. Ayala contends without analysis or citation to authority that the special instruction lowered the burden of proof as to his liability for the assault with a deadly weapon and battery counts.
Even if we were to consider the merits of these unsupported assertions, we would not conclude that the trial court's special instruction was prejudicial with respect to the assault with a deadly weapon counts as to Razo, Ayala, and Valdez or as to the battery count as to Valdez. "[T]he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) "To say that an error did not 'contribute' to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous." (Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) "To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates, at p. 403.) "[T]he appropriate inquiry is 'not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.'" (People v. Quartermain (1997) 16 Cal.4th 600, 621; accord People v. Neal (2003) 31 Cal.4th 63, 86.)
Here, the trial court instructed the jury both that (1) "[a] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes" and (2) a natural and probable consequence can be" '[a] possible consequence which might reasonably have been contemplated.'" The court's conflicting instructions did not address whether Ayala, Valdez, or Razo had aided and abetted an assault. The only issue addressed by these instructions was whether, as a consequence of the assault they aided and abetted, an assault with a deadly weapon or a battery was "likely" or merely "possible."
In our view, the record establishes beyond a reasonable doubt that the jury's verdicts as to Ayala and Valdez on the assault with a deadly weapon and battery counts were not attributable to the trial court's conflicting instructions. Once the jury found that Ayala and Valdez had aided and abetted an assault, it could not have concluded that a reasonable person in their position-a person using a deadly weapon to murder one victim and aiding and abetting an assault as part of a group assault on multiple victims- would not have known that an assault with a deadly weapon and a battery were "likely" consequences of the assault they were aiding and abetting. The jury's determination that a person in Razo's position would have known that the assault he was aiding and abetting was likely to result in an assault with a deadly weapon was also surely unattributable to the difference between "likely" and "possible."
Although we conclude that the Attorney General can meet his burden of showing that the special instruction was not prejudicial, we agree with defendants that the trial court erred in giving the special instruction. Appellate courts long expressed concern about "the danger of instructing a jury with language from an opinion that has nothing to do with jury instructions." (People v. Southard (2021) 62 Cal.App.5th 424, 427.) "The discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind. We therefore strongly caution that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage." (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.)
The language in Medina that was the prosecutor's source for the special instruction was not concerned with jury instructions. The issue in that case was whether there was substantial evidence to support murder and attempted murder convictions of two gang members who were coparticipants in a gang confrontation with the victim that led their fellow gang member to shoot the victim to death. (Medina, supra, 46 Cal.4th at pp. 920-922.) The court ultimately concluded: "[T]he jury could reasonably have found that a person in defendants' position (i.e., a gang member) would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable as Barba was retreating from the scene." (Id. at pp. 922-923.)
Before reaching that conclusion, which notably used the "likely to occur" phrasing, the California Supreme Court identified the standard: "Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.) [¶] '[A]lthough variations in phrasing are found in decisions addressing the doctrine-"probable and natural," "natural and reasonable," and "reasonably foreseeable"-the ultimate factual question is one of foreseeability.' (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) Thus,' "[a] natural and probable consequence is a foreseeable consequence" ....' (Ibid.) But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough ...." (1 Witkin & Epstein, Cal. Criminal Law (2d ed.1988) § 132, p. 150.)' (People v. Nguyen, supra, 21 Cal.App.4th at p. 535.) A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case (ibid.) and is a factual issue to be resolved by the jury." (Medina, supra, 46 Cal.4th at p. 920.) The court also reasoned: "[T]he jury could reasonably have inferred that, in backing up that challenge, a Lil Watts member either would have been armed or would have or should have known a fellow gang member was or might be armed." (Id. at p. 923.) The dissent in Medina was explicitly concerned with the distinction between a "probable" consequence and "possible" consequence. It asserted that the evidence showed only "a possible event, not a probable one" (id. at p. 931) and that it was wrong to hold that "[a]n aider and abettor would be responsible for any crime that was a natural and possible consequence of the target crime." (Id. at p. 933.)
While the California Supreme Court's opinion in Medina suggests that a possible consequence may be sufficient, the California Supreme Court has never suggested that this is appropriate language for a jury instruction. Further, the wording of the special instruction conflicted with the pattern instruction that the trial court had already given and several defendants' trial counsel had already concluded their closing arguments. Under those circumstances, we agree with defendants that the trial court erred in giving the special instruction, though it was not on this record prejudicial to their convictions for assault with a deadly weapon and battery.
C. Failure to Instruct on Imperfect Self-defense
Razo contends that the trial court prejudicially erred in failing to instruct the jury on imperfect self-defense to murder. Although the other defendants generally join in Razo's contention, we are vacating the murder convictions of all defendants except Ayala and Valdez. Ayala and Valdez do not assert that there was substantial evidence of imperfect self-defense as to either of them. Hence, no imperfect self-defense instructions were merited as to Ayala or Valdez, and the trial court did not err in failing to give them.
D. Adequacy of CALCRIM No. 570
Razo, joined by the other defendants, contends that the trial court prejudicially erred in giving an inadequate instruction on heat of passion and provocation in connection with voluntary manslaughter (CALCRIM No. 570). As was true with respect to the imperfect self-defense instructions, we need not address this contention. We are vacating the murder convictions of all defendants except Ayala and Valdez. As to Ayala and Valdez, we have already determined above that there was not substantial evidence that Ayala or Valdez was responding to provocation when they killed Medina. Thus, they were not entitled to instructions on heat of passion and provocation.
Garcia and Cabrera requested that the trial court give CALCRIM No. 570, and Garcia asked the court to give a modified version of that instruction.
E. Accomplice Instructions: Roman Razo and Jennifer Martinez
Defendants contend that the trial court prejudicially erred by failing to include Roman Razo and Jennifer Martinez in the accomplice instructions and by failing to instruct that they could be liable under a natural and probable consequences theory.
Accomplice instructions, which require corroboration of a witness's testimony if the jury finds the witness to be an accomplice (CALCRIM No. 334), are required "only where there is substantial evidence that the witness was an accomplice. [Citations.] 'An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant' (§ 1111) and does not include an accessory [citations]. 'An accomplice must have" 'guilty knowledge and intent with regard to the commission of the crime.'" '" (People v. Boyer (2006) 38 Cal.4th 412, 466-467 (Boyer).)
"An accomplice is someone subject to prosecution for the charged crimes by reason of aiding and abetting or being a member of a conspiracy to commit the charged crimes.... [¶] . . . [I]f an accomplice aids, promotes, encourages, or instigates a confederate to commit a crime, but the confederate instead commits another, more serious crime, the accomplice may be liable for the more serious crime if it was a 'natural and probable consequence' of the crime that the accomplice intended to aid and abet." (People v. Houston (2012) 54 Cal.4th 1186, 1224.)
"Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict." (People v. Williams (2010) 49 Cal.4th 405, 456.) A defendant bears the burden of proving that a prosecution witness is an accomplice by a preponderance of the evidence. (People v. Frye (1998) 18 Cal.4th 894, 969.) "Even where accomplice instructions were required, we have found no prejudice where, in fact, the witness's testimony was sufficiently corroborated." (Boyer, supra, 38 Cal.4th at p. 467.)
We reject defendants' claim that a more stringent standard of harmless error review applies, as we are bound by the California Supreme Court's decision to the contrary. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
Defendants contend that there was substantial evidence that Martinez and Roman aided and abetted an assault and therefore were potentially liable under the natural and probable consequences theory for the murder, assault with a deadly weapon, and battery counts. Martinez's trial testimony implicated several defendants in the charged offenses, particularly Valdez, Garcia, and Cabrera. Roman's statements to the police, which were played for the jury at trial, implicated most of the defendants, including Valdez, Garcia, Razo, Ayala, and Zamora.
Defendants contend that Martinez was an accomplice because she "supplied the bat," which they argue established that she was an aider and abettor of an assault. They base this contention on the trial testimony of Jose Castro and Chavoya.
Jose Castro testified that, 10 to 15 minutes before the attack, he saw Martinez take a blue metal bat out of her car and give it to Deshawn Landry, who was at the party with a few companions. Landry, who was not a Triple Ls member, then walked around with the bat for 10 to 15 minutes. Landry's companions walked up to Garcia, pointed to Medina and Hortia, and said" 'Th[o]se guys are trying to start some shit.'" Garcia then confronted and attacked Hortia as Landry stood nearby. Jose Castro testified that he saw Landry running away with the bat, but he had also told the police that Valdez had told him that he got the bat from Landry.
Chavoya testified that after the incident he spoke with Martinez on the phone and she asked him about the bat. He asked her if she wanted the bat back, and she said no.
We do not agree that this evidence amounts to substantial evidence that Martinez intended to aid and abet an assault. While this evidence suggests that Martinez may have been the source of the bat that Valdez used to strike Medina, none of the evidence presented at trial supports a reasonable inference that Martinez, in giving this bat to Landry, who was not a Triple Ls member and did not participate in the attack, intended to aid in a Triple Ls assault. Even assuming arguendo that this evidence was sufficient to support accomplice instructions as to Martinez, we would find any error harmless because it is not reasonably probable that the jury would have found, based on this scant evidence, that Martinez intended to aid in an assault. Martinez was not a Triple Ls member, and no evidence concerning her provision of the bat to Landry suggested that she intended to facilitate an assault by Triple Ls. We conclude that the trial court did not prejudicially err in failing to include Martinez in the accomplice instructions.
Defendants contend that there was substantial evidence that Roman was an accomplice because he drove Razo and Valdez to the party, he drove Valdez home after the attack, there was blood on the passenger-side floor mat of his car, he could have been the owner of gang clothing found in Razo's residence, he initially lied to the police, and he might have fit the description given by Aaron Jacquez of the person with the bat.
No evidence was presented at trial that Roman was a Triple Ls member, and there was no evidence that Roman was aware of any plan to assault anyone at the party. His transportation of Razo and Valdez to the party did not implicate him in any criminal activity. His transportation of Valdez home after the assault, while supporting a potential charge of accessory after the fact, did not implicate him as an aider and abettor of any assault. The blood on the passenger-side floor mat did not implicate Roman, as it was virtually undisputed that this blood came from Valdez, whose clothing was bloody, and from the bat. Roman's lies to the police, which were consistent with his possible liability as an accessory, did not implicate him as an aider and abettor without other evidence.
We reject defendants' claim that Aaron Jacquez's description of the person with the bat provided substantial evidence that Roman was an accomplice. Aaron testified that, upon seeing the attack on Hortia and Medina, he first went to help Hortia because Hortia was closer to him. He took a quick, "millisecond glimpse" toward Medina and saw people attacking Medina, who was still on his feet. He could not see Medina while he was helping Hortia. Aaron told the police that, as he was trying to help Hortia, alcohol got splashed in his eyes, rendering him unable to see. By the time he had wiped the alcohol off, "it was over." The next time Aaron saw Medina, Medina was on the ground and the people who had been attacking him were running away.
Aaron testified at trial that he saw only one person with a bat that night. This person was swinging a bat downwards at Medina, who was on the ground. Aaron's testimony on direct examination was consistent with Valdez being the person holding the bat. Aaron testified that he saw a tall, slender young Hispanic male, about 15 years old with no facial hair, and wearing an Atlanta Falcons jersey (as Valdez was), holding a bat near Medina.
We recognize that Aaron's testimony was inconsistent. He also testified that he could not describe the face of the person using the bat to strike Medina; nor could he remember what that person was wearing. On cross-examination, he testified that the person wearing the Falcons jersey did not have a bat but was standing near Medina. But he also testified that he was not watching the person in the Falcons jersey and did not know what this person had done during the attack. Aaron admitted that he had previously testified that the person with the bat was shorter. And although he testified that he could not recall the person's hairstyle, he also conceded that he had testified at a preliminary examination that the person with a bat had a "fade" haircut. After reviewing a portion of a police report (which was not in evidence) on cross-examination, he testified that the person with the bat was wearing a gray and white T-shirt, and he admitted that he had described the person's clothing that way at a preliminary examination.
While the defense was able to point out various inconsistencies in Aaron's description of the person with a bat, Aaron's inconsistencies concerning the height and hairstyle of the person with the bat did not create substantial evidence that Roman was that person. Roman was 18 years old and five foot, six inches tall at the time of the party. He told the police he was wearing a black shirt with gray and white on it. Defendants do not identify any evidence of his hairstyle at the time of the party. Thus, there was not substantial evidence that Roman's hairstyle, shirt, or age matched Aaron's description of the person with a bat. We conclude that there was not substantial evidence that Roman was an accomplice, and therefore accomplice instructions were not required as to him.
V. CHAVOYA'S "DUAL STATUS" TESTIMONY
Defendants contend that the trial court prejudicially erred in permitting Chavoya to testify both as an expert on Triple Ls and as a percipient witness to the murder, assaults, and battery.
A. Background
Chavoya testified as witness for the prosecution. The prosecution began its direct examination of Chavoya by asking him about his background and his knowledge of Triple Ls. Chavoya testified about his knowledge of Norteno gangs and Sureno gangs. He had been involved with Northerner gangs since seventh grade. Chavoya explained that Triple Ls stood for Los Latinos Locos and that it was active in the Evergreen area of San Jose. When Chavoya was 13 or 14 years old, Jose Castro introduced Chavoya to Garcia and other members of Triple Ls. Chavoya started associating with Triple Ls in 2004, when he was 14 years old. He associated with Triple Ls almost every day from 2004 to 2007, except for a yearlong period around 2006 when he was recovering from an injury. During his association with Triple Ls, Chavoya learned from Triple Ls members and at Triple Ls meetings about Triple Ls' history, colors, signs, and turf, the types of crimes Triple Ls committed, and its primary activities.
After this foundational testimony, the prosecutor offered Chavoya as an expert on "the turf, primary activities, membership, colors, signs and activities of the Triple Ls." Cabrera's trial counsel objected and asked to be heard outside the jury's presence. He argued that it was "improper" for Chavoya to "mix" testimony as both an expert and a "percipient witness." Cabrera's trial counsel asked the court to exercise its "discretion" to preclude Chavoya from testifying as an expert because "expert" status would give him a "false aura" of credibility. He suggested that Chavoya could be called "at a separate time" as an expert. Garcia's trial counsel joined in this objection and objected on the ground that the prosecutor had not previously apprised the defense that he intended to qualify Chavoya as an expert.
The prosecutor asserted that this was "a non-issue" because "these are very separate issues about what he saw and what he heard on July 8th, versus asking him opinion questions about the operation of the gang." The prosecutor argued that Chavoya's testimony was necessary because he had "first-hand information" that the prosecution's police officer gang expert lacked.
The defense objected that qualifying Chavoya as an expert would permit him to testify to hearsay, but the trial court stated that it would not permit Chavoya to testify about hearsay or anything of which he lacked personal knowledge, regardless of his expert status. The court noted that Chavoya had knowledge of "various aspects" of Triple Ls. The defense continued to object: "[B]ut he can testify to that from personal knowledge. There's no need to qualify him as an expert and that's my position. It gives him a false air of credibility." "[I]t gives him enhanced credibility." The defense also objected on the ground that Chavoya's plea deal made him a "biased individual." Razo's trial counsel contended that the prosecutor had not sufficiently established a foundation for Chavoya's expertise. The court overruled all of these objections.
When Chavoya returned to the stand, the prosecutor asked some additional foundational questions. Chavoya testified that he had been jumped in to Triple Ls and that" 'jumped in'" was an "initiation" involving a "beating." Chavoya had been jumped in behind Garcia's home in 2004. The "beating" lasted only a "few seconds." The prosecutor then asked that Chavoya be qualified as an expert. Defense voir dire elicited Chavoya's testimony that both he and Jose Castro had "stabbed people" and "shot at people." Chavoya testified that Jose Castro knew more about the gang than Chavoya did, and Chavoya had acquired information about the gang from Jose Castro while they were incarcerated together after July 2007.
The court "qualif[ied] Mr. Chavoya to testify regarding the turf, membership, signs, symbols, primary activities, and operations of the gang." It instructed the jury: "A witness will be allowed to testify as an expert and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." The court told the prosecutor to "let [them] know when you are getting into percipient issues."
Chavoya testified about Triple Ls' turf and the signs and symbols that Triple Ls associated with, including the St. Louis Cardinals, "green rags," and other items that "northerners" generally associate with (the color red, the number 14, etc.). He explained that the St. Louis Cardinals logo had a" 'T'" for Triple, an" 'L,'" and an" 'S,'" which matched Triple Ls' name. Members of Triple Ls wore St. Louis Cardinals baseball caps to show their membership. Triple Ls claimed Brigadoon Park, which meant that "[w]e patrol it, we protect it from other gang members," even other Norteno gang members. Triple Ls members make the shape of an" 'L'" as a hand sign. Only members of Triple Ls could get an STL tattoo.
Triple Ls had multiple "generations." Louie Garcia Sr., Garcia's father, was in charge of the second generation, and he "handed it off" to Louie Garcia Jr. (Louie), Garcia's brother. Before the second generation, the gang had a different name. That meant that Louie "took over the neighborhood and started a new generation." Louie had three Ls tattooed on his abdomen and a St. Louis Cardinals sign on his shoulder. Triple Ls met monthly with all of the generations. Triple Ls members often hung out at the Garcia home. Triple Ls members also hung out at the Castro home, which was on the corner of Camperdown and Brigadoon, next door to the house where the party was held on July 7, 2007.
Daniel Castro Jr. was a member of the third generation. Jennifer Martinez was the mother of Daniel Castro Jr.'s baby.
Garcia and Chavoya were members of the third generation. Garcia was Chavoya's mentor, his "Big Homey," in the gang. Garcia helped Chavoya become a member of the third generation. Chavoya testified that Razo, Ayala, Valdez, Cabrera, and Jose Castro were all members of the fourth generation of Triple Ls. Jose Castro was the leader of the fourth generation. Razo had been jumped in as a member in May 2007 in Chavoya's presence. Chavoya knew Ayala to be a Triple Ls member because Ayala had told Chavoya that he had been jumped in. Ayala had an" 'STL'" tattoo on his abdomen. Cabrera had a Triple Ls tattoo on his back. Zamora, who was Garcia's cousin, was a member of Triple Ls. Chavoya had seen Zamora at Triple Ls meetings. Chavoya did not believe that Estrada, who was also Garcia's cousin, was a Triple Ls member, though Estrada hung out with Triple Ls members.
Chavoya testified that he had entered into a plea agreement in February 2011 and agreed to cooperate and testify truthfully and completely for the prosecution. He had been charged with murder with a gang enhancement and several counts of assault and had been facing a life sentence. He had pleaded to manslaughter, two counts of felony assault, and battery, all with gang enhancements. His plea agreement limited his exposure to between 11 and 26 years in prison.
After Chavoya had given this testimony, the prosecutor began to ask Chavoya about the incident. Before Chavoya answered, the trial court instructed the jury: "[J]ust so you understand, with regard to the questions regarding the date of the incident, Mr. Chavoya is not testifying as an expert giving opinions, all right?" Chavoya then testified about the incident.
Chavoya had been interviewed by the police numerous times, but he did not disclose the identity of any of the assailants until 2010. In July 2010, Chavoya identified Ayala as the person who had stabbed Medina and Valdez as the person who had hit Medina with a bat.
Chavoya testified that he and Jose Castro had gone to the Garcia home for a barbeque on July 7, 2007, and Triple Ls had had a meeting at the Garcia home that night.
Chavoya's testimony established without question that he was an accomplice, and the jury was later instructed that it could find that Chavoya was an accomplice. The jury was told: "Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution."
B. Analysis
Defendants contend that the trial court violated their due process, confrontation, and fair trial rights by qualifying Chavoya as an expert on Triple Ls. They contend that permitting Chavoya to testify as both an expert and a percipient witness interfered with their confrontation rights, improperly gave his testimony "an unjustified endorsement from the court and an unearned aura of credibility," allowed the prosecutor to ask him leading questions, and permitted Chavoya to testify based on hearsay.
We ordinarily apply an abuse of discretion standard of review to a trial court's decision that a witness is qualified to testify as an expert. (People v. Chavez (1985) 39 Cal.3d 823, 828), and the Attorney General contends that we should apply that standard of review here. Defendants argue that we should apply a de novo standard of review because the trial court's decision to permit Chavoya "dual-status" "depended upon its interpretation of a statute."
None of defendants' arguments concerns the statutes governing the qualification of an expert witness. "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. [¶] [] A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony." (Evid. Code, § 720.) "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Id., § 801.)
Defendants do not claim on appeal that Chavoya lacked "special knowledge" and "experience" (Evid. Code, § 720) concerning Triple Ls that was "sufficiently beyond common experience" such that his testimony would "assist the trier of fact" (Id., § 801). They contend instead that the trial court's ruling allowing Chavoya to testify as both an expert and a percipient witness violated their constitutional rights to confrontation, due process, and a fair trial. Because this appears to be primarily a legal issue, we apply a de novo standard of review to the legal question and a substantial evidence or abuse of discretion standard to any factual or discretionary findings made by the trial court. (Cf. People v. Cromer (2001) 24 Cal.4th 889, 894-900 [applying de novo review to confrontation issue].)
Defendants rely on a series of federal cases concerning "dual status" testimony by prosecution witnesses. All of these cases involved law enforcement officers who testified both about their investigations of the charged offenses and their expert opinions about the meaning of "code words" used in the narcotics trade.
In United States v. Dukagjini (2d Cir. 2002) 326 F.3d 45 (Dukagjini), the district court permitted Biggs, the investigating "case agent," to testify both as a percipient witness about his investigation and as an expert witness. (Id. at p. 50.) Biggs had monitored wiretaps of the defendants, and the purpose of his expert testimony was to explain the meaning of the code words used in the recorded conversations obtained by use of the wiretaps. (Ibid.) However, "many parts of Biggs's testimony appear to have been based primarily upon his familiarity with the specifics of the case, rather than his general expertise in the drug trade." (Ibid.) The defense objected to Biggs's expert testimony about the meaning of these conversations, but the district court overruled these objections, while noting "its concern that the testimony was straying from proper expertise about drug jargon." (Id. at p. 51.)
On appeal, one of the contentions by the defendants was that "Biggs's dual roles as case agent and as expert witness allowed him to serve as a summary witness, repeating and bolstering evidence previously received and thereby prejudicing the appellants." (Dukagjini, supra, 326 F.3d at p. 51.) The Second Circuit acknowledged that it had previously "sustained convictions based on the expert testimony of agents who also testified as fact witnesses." (Id. at p. 52.) However, the court noted that concerns "arise when an expert, who is also the case agent, goes beyond interpreting code words and summarizes his beliefs about the defendant's conduct based upon his knowledge of the case." (Id. at p. 53.)" '[T]he jury may infer that the agent's opinion about the criminal nature of the defendant's activity is based on knowledge of the defendant beyond the evidence at trial,' a risk that increases when the witness has supervised the case." (Ibid.) "Simply by qualifying as an 'expert,' the witness attains unmerited credibility when testifying about factual matters from first-hand knowledge. Additionally, when the expert bases his opinion on in-court testimony of fact witnesses, such testimony may improperly bolster that testimony and may 'suggest[] to the jury that a law enforcement specialist . . . believes the government's witness[] to be credible and the defendant to be guilty, suggestions we have previously condemned.'" (Ibid.)
The Second Circuit also expressed two additional concerns. "[E]xpert testimony by a fact witness or case agent can inhibit cross-examination, thereby impairing the trial's truth-seeking function. In general, impeaching an expert is difficult. The expert usually has impressive credentials, and he is providing an opinion that, unlike a factual matter, is not easily contradicted. Challenges to the expert are often risky because they can backfire and end up bolstering the credibility of the witness. Normally, this is an acceptable risk for the defense, because only the witness's expertise is at stake. However, when the expert is also a fact witness, the risks are greater. A failed effort to impeach the witness as [an] expert may effectively enhance his credibility as a fact witness. Because of this problem, a defendant may have to make the strategic choice of declining to cross-examine the witness at all. [¶] . . . [And] when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness's 'sweeping conclusions' about appellants' activities." (Dukagjini, supra, 326 F.3d at pp. 53-54.) The Second Circuit decided that "the district court erred in allowing Biggs to stray from his proper expert function. Biggs acted at times as a summary prosecution witness; the effect was a bolstering of the testimony of the cooperating co-defendants and an impinging upon the exclusive function of the jury." (Id. at p. 55.) Yet, because the defendants had not preserved a confrontation clause objection, the court reviewed the error under the plain error standard and found it harmless. (Id. at pp. 59-62.)
In United States v. Freeman (9th Cir. 2007) 498 F.3d 893, the Ninth Circuit Court of Appeals addressed a similar issue. A police officer involved in the investigation testified at trial about the meaning of code words used in intercepted telephone conversations and also offered his interpretation of other portions of the conversation that were not coded. (Id. at pp. 898-900.) Freeman contended on appeal that the district court had prejudicially erred in permitting the officer to testify as both an expert witness and a lay witness. (Id. at p. 901.) Although the Ninth Circuit "share[d] the concerns" expressed by the Second Circuit (id. at p. 903), it found no prejudicial error. (Id. at pp. 905-906.)
In United States v. Anchrum (9th Cir. 2009) 590 F.3d 795, the Ninth Circuit again addressed this issue. The district court had taken note of Freeman and separated the agent's testimony into two phases: Percipient witness testimony followed by expert testimony. And it had instructed the jurors "that they were the ultimate finders of fact." (Id. at p. 803.) The Ninth Circuit held these precautions avoided any risk of prejudice from the dual status testimony of the agent. (Id. at pp. 803-804; see also United States v. Farmer (7th Cir. 2008) 543 F.3d 363, 369-370.)
Defendants maintain that merely permitting Chavoya to be qualified as an expert witness gave his testimony "an unjustified endorsement from the court and an unearned aura of credibility" and improperly allowed the prosecutor to ask him leading questions.
Defendants claim that Chavoya's expert testimony interfered with their confrontation rights and permitted Chavoya to testify based on hearsay. Defendants did not raise a confrontation objection below, and the trial court explicitly barred Chavoya from testifying to any hearsay. Defendants do not base this contention on the trial court's failure to sustain any hearsay objections to any specific aspects of Chavoya's testimony. We therefore deem this issue forfeited.
Unlike the federal cases upon which defendants rely, Chavoya was not the investigating officer, and there was little risk that the jury, fully informed of his history as a gang member and his record of violent conduct, would see the court's qualification of him as an expert on Triple Ls as an "endorsement" or interpret it as giving him an "aura of credibility." Chavoya lacked the "impressive credentials" described in the federal cases, and nothing in the record indicates that defendants were hindered in their ability to cross-examine and impeach him. Contrary to defendants' assertion, Chavoya's testimony was largely divided into two phases: Background testimony about Triple Ls, which included expert testimony, and testimony about the charged offenses. The trial court highlighted this separation when the questioning moved to the charged offenses by instructing the jury that with regard to the questions regarding the date of the incident, Mr. Chavoya was not testifying as an expert. The court took the additional precaution of ruling that Chavoya's testimony, even his expert testimony, would be limited to his personal knowledge and would not include any hearsay.
The trial court also gave the jury cautionary instructions. Both before Chavoya's expert testimony and at the conclusion of the trial, it told the jury that it was "not required to accept" expert opinion testimony as "true or correct," that "[t]he meaning and importance of any opinion are for you to decide," and that it should evaluate "the believability of an expert witness" in the same manner as "the believability of witnesses generally." In addition, the court told the jury that testimony by an accomplice (which the jury surely would have understood included Chavoya) "should be viewed with caution."
We decide that any risk of prejudice from Chavoya's dual status testimony was eliminated by the trial court's multiple precautions. Defendants were afforded a full opportunity to confront and cross-examine Chavoya and to impeach his testimony, which they did with vigor and at great length.
We reject defendants' contention that the trial court erred in qualifying Chavoya as an expert on Triple Ls and permitting him to testify as both an expert and percipient witness.
VI. ADMISSIBILITY OF JOSE CASTRO'S TESTIMONY
Defendants contend that their rights to due process were violated when the trial court permitted Jose Castro to testify at trial because an August 2011 interview agreement between the prosecutor and Jose Castro was unduly coercive.
A. Background
In February 2008, Jose Castro agreed to be interviewed by the police. His February 2008 interview agreement provided:" 'Should the prosecution decide not to enter such offer [of a negotiated plea] to Jose Castro or Jose Castro decides not to accept the plea agreement, the prosecution agrees not to use any statement or portion thereof given pursuant to this agreement against him in [this case].' "
In August 2011, Jose Castro again agreed to be interviewed by the police. The August 2011 interview agreement between Jose Castro and the prosecution included this provision (the italicized portion of which is the focus of defendants' contention):" 'Should the prosecution choose not to make an offer to enter into a negotiated plea with Jose Castro, the prosecution and Jose Castro agree that: [¶] A. The prosecution shall not use any statement or portion thereof given pursuant to this agreement against Jose Castro in the prosecution's case-in-chief in [this case], or against Jose Castro and the prosecution's case-in-chief in any other criminal case. [¶] . . . [¶] C. The prosecution will be permitted to offer any statements of Jose Castro for impeachment or for any otherwise legally admissible purpose should any statement of Jose Castro be offered by him: [¶] 1. In his own defense or on behalf of any other defendant charged in [this case]; [¶] Or 2. In his own defense or on behalf of any other defendant charged in any other criminal case.'" (Italics added.) Jose Castro was interviewed by the police in November 2011.
In July 2012, Jose Castro and the prosecution entered into a plea agreement under which he agreed to plead guilty to voluntary manslaughter, two counts of aggravated assault, and one count of battery and admit gang enhancements as to each count in return for a sentence of between 11 and 26 years in prison. The July 2012 plea agreement provided: "Jose Castro agrees to testify when called by the Prosecution in a truthful, complete and candid manner in any case, cases or proceedings concerning" this case or the Pettigrew Drive homicide. The plea agreement did not contain any provisions similar to the italicized provisions in the August 2011 interview agreement, and the plea agreement stated "that there are no promises, conditions, or representations other than those set forth in this agreement."
Jose Castro testified at defendants' 2013 trial, and he provided important evidence in support of the prosecution's case. He testified that Ayala had a custom and habit of carrying a knife. He also described the events on the night of the charged crimes. He and Garcia, Ayala, Razo, Valdez, Cabrera, Estrada, Zamora, and others were hanging out at Brigadoon Park before the party. All of them went to the party as a group. Eventually, the entire group left the party and went to the corner of Brigadoon and Camperdown.
As Garcia and Jose Castro were leaving the party, Hortia commented to them:" 'Ooh, cholos.'" Garcia and Jose Castro looked at each other and laughed. Jose Castro then overheard a conversation between Garcia and some men associated with a group called "Creekside." The Creekside men pointed to Medina and Hortia and told Garcia:" 'These guys are trying to start some shit.'" Garcia then approached Medina and Hortia and had a brief conversation with them that Jose Castro could not hear. Zamora was involved in this "confrontation," and Valdez was with them. After that, Jose Castro heard someone loudly say" '[f]uck you,'" and Garcia struck Hortia.
Five or six people, including Jose Castro, then became involved in the attack. Zamora struck Medina in the face. According to Jose Castro, "[E]verybody kind of just started closing in." Cabrera was "swinging, just wild punches" that were hitting Medina as Zamora, Cabrera, and Estrada surrounded Medina. Jose Castro saw Valdez hit Medina with a bat on the top of the head and then in the face, after which Medina fell to the ground. Ayala got on top of Medina and began repeatedly stabbing him. Afterwards, Ayala said" 'Damn. I . . . fucked up. That . . . dude's dead, man, that dude's dead.'" Razo said:" 'Fuck, I didn't even know you were stabbing him. I got that shit all over my hands.' "
Some of Jose Castro's statements during the November 2011 interview, conducted pursuant to the August 2011 interview agreement, were introduced at trial by the prosecution.
B. Analysis
Defendants contend that the provision in the August 2011 interview agreement permitting the prosecution to use Jose Castro's statements "for any [] legally admissible purpose should any statement of Jose Castro be offered by him . . . in his own defense or on behalf of any other defendant" was so coercive that permitting him to testify at trial violated their due process rights. (Italics added.)
We elect to address this issue on appeal, notwithstanding defendants' failure to object in the trial court to Jose Castro's testimony on this ground. (See People v. Riel (2000) 22 Cal.4th 1153, 1178-1179.)
"Our cases require that we review the record and reach an independent judgment whether the agreement under which the witnesses testified was coercive and whether defendant was deprived of a fair trial by the introduction of the testimony, keeping in mind that generally we resolve factual conflicts in favor of the judgment below." (People v. Jenkins (2000) 22 Cal.4th 900, 1010 (Jenkins).)
"Immunity or plea agreements may not properly place the accomplice under a strong compulsion to testify in a particular manner-a requirement that he or she testify in conformity with an earlier statement to the police, for example, or that the testimony result in defendant's conviction, would place the witness under compulsion inconsistent with the defendant's right to fair trial. [Citation.] Although we have recognized that there is some compulsion inherent in any plea agreement or grant of immunity, we have concluded that 'it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.' [Citations.] Such a plea agreement, even if it is clear the prosecutor believes the witness's prior statement to the police is the truth, and deviation from that statement in testimony may result in the withdrawal of the plea offer, does not place such compulsion upon the witness as to violate the defendant's right to a fair trial." (Jenkins, supra, 22 Cal.4th at p. 1010.)
" '[A] defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.' [Citation.] Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant's conviction [citation], the accomplice's testimony is 'tainted beyond redemption' [citation] and its admission denies the defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid." (People v. Allen (1986) 42 Cal.3d 1222, 1251-1252, fn. omitted.)
In objecting to Jose Castro's testimony, defendants rely principally on People v. Medina (1974) 41 Cal.App.3d 438. In Medina, the immunity agreement provided that, "[i]f [the witness's] testimony 'materially or substantially' differed from the prior recorded statement he became liable to prosecution for first degree murder and, having disclosed his participation, stood little chance of escaping conviction." (Id. at p. 452.) The Second District Court of Appeal's opinion in Medina finding that this agreement was coercive and therefore a violation of the defendant's right to a fair trial relied on its prior opinion in People v. Green (1951) 102 Cal.App.2d 831 (Green). (Medina, at pp. 452453.) In Green, the immunity granted to the witness was contingent on conviction of the codefendant. (Green, at p. 835.) As the California Supreme Court later noted, "unless the bargain is expressly contingent on the witness sticking to a particular version, the principles of Medina . . . and Green . . . are not violated." (People v. Garrison (1989) 47 Cal.3d 746, 771.)
The interview agreement in this case contained neither of the provisions found to be coercive in Green and Medina; therefore, those cases do not support defendants' claim. Nothing in the August 2011 interview agreement required Jose Castro to adhere to "a particular version," and the benefits to him under the interview agreement were not contingent on the conviction of anyone.
In Jenkins, the court rejected a claim that the defendant's right to a fair trial had been violated due to the fact that the accomplices who testified against him had immunity and plea agreements. The court emphasized: "The defense . . . had a full and fair opportunity for cross-examination of the accomplice witnesses," (Jenkins, supra, 22 Cal.4th at p. 1012) and "defendant was able to impeach the witnesses with inconsistencies between their trial testimony and their pretrial statements." (Id. at p. 1011; accord People v. Sully (1991) 53 Cal.3d 1195, 1218.) So, too, here. Defendants had a full and fair opportunity to cross-examine Jose Castro and in fact impeached him with numerous inconsistencies between his multiple statements to the police and his trial testimony and with the incentives provided by his August 2011 interview agreement and July 2012 plea agreement.
Furthermore, the provision in the August 2011 interview agreement that defendants suggest was coercive was no longer in force by its own terms when Jose Castro testified at trial. The provision applied only if Jose Castro did not enter into a plea agreement, but he testified pursuant to a plea agreement. Any influence that the August 2011 interview agreement might have had was limited to Jose Castro's statements while it was in force (between August 2011 and July 2012), and defendants were able to-and did-point out the inconsistencies between those statements, his trial testimony, and his other statements. Under these circumstances, we decide that the trial court did not err in permitting Jose Castro to testify notwithstanding the terms of the August 2011 interview agreement.
VII. ADMISSION OF ROMAN RAZO'S STATEMENTS
Ayala, Valdez, Garcia, Estrada, and Zamora contend the trial court's admission at trial of Roman Razo's prior statements to the police violated their right to be confronted with the witnesses against them under the Sixth and Fourteenth Amendments to the United States Constitution.
A. Roman Razo's Trial Testimony
The prosecutor called Roman as a witness, and he testified in front of the jury under a grant of use immunity. Roman testified he understood he had to tell the truth. On direct examination, Roman provided some information, such as the names of his siblings. But he largely testified "I don't know" or "I don't remember" to questions posed by the prosecutor, including those related to his personal history, the crime, and its aftermath. For example, he testified he did not remember if he had attended Silver Creek High School, if he had a red Camaro, if a particular hat belonged to him, if he had previously testified in this case, if he had seen someone killed in 2007, or if he had gone to a party on Brigadoon Way in 2007.
To other questions by the prosecutor, Roman provided seemingly implausible denials, such as denying that it would help his memory to review reports documenting his prior statements to the police, that he knew any of the defendants other than his brother, that he had heard of a group called "the Ls", or that he knew what the trial was about.
Roman was cross-examined by trial counsel for Samuel Razo, Ayala, Cabrera, Valdez, and Garcia. Roman gave answers to defendants' questions about his personal history similar to those he had given to the prosecutor. For example, Roman could not remember if he had ever lived in San Jose or the last time he had seen his son.
Defendants did not ask Roman specific questions about the events of July 8, 2007. They did pose questions about, and received answers to, Roman's ability to perceive, reason, and remember. Roman testified on cross-examination that he hears voices, including during his trial testimony and that he sometimes believes things that are not true. Roman testified that he has memory problems and a hard time following directions. In response to a question from Garcia's trial counsel, Roman illustrated his memory problems by stating "I don't remember what I did a couple [of] days ago.... I try, but I can't remember." In response to a question from Valdez's trial counsel about whether Roman "remember[ed] anything in 2007," Roman replied "No. I don't know. Don't recall." Roman testified that he was seeing a doctor and was on medications in 2007.
Roman's mother testified that he began seeing a psychologist or psychiatrist in 2005 and was prescribed medication. When he did not take his medication, he was depressed and anxious and had mood swings and said he heard voices. He had difficulty communicating, and this had not changed since 2007. She noticed that Roman sometimes said things that were not true, like claiming that he had taken out the trash when he had not. He saw things that were not there and heard voices. Roman's mother had failed to give Roman his medication for a week starting on July 13, 2007, because she was upset about Razo's arrest.
In response to questions from the prosecutor, Roman testified that he sometimes lies, including to his mother, and that he sometimes believes his own lies. Roman confirmed that he heard voices in 2007.
B. Admission of Roman Razo's Prior Statements to the Police
Based on Roman's answers to his questions on direct examination, the prosecutor sought admission of a recording of Roman's July 18, 2007 interview with the police. The prosecutor asserted that Roman's" 'I don't remember'" and" 'I don't know'" testimony was "feigned and contrived" and therefore Roman's July 2007 statements were inconsistent with his trial testimony and admissible under Evidence Code section 1235. The defense objected to admission of the statements on hearsay, confrontation clause, and due process grounds.
The trial court found that Roman's testimony was "susceptible to a finding . . . that he [was] feigning . . . lack of recollection." The court found Roman was available to be cross-examined and was subject to recall for further cross-examination. The court observed that the jury instruction would leave it up to the jury to determine whether Roman's lack of recollection was genuine. It concluded that Roman's statements in the July 18, 2007 interview "could be found to be inconsistent" with his trial testimony if the jury "disbelieves" his claim that he could not remember and were therefore admissible as prior inconsistent statements.
In the July 18, 2007 interview, which lasted approximately one hour and 45 minutes and was played for the jury, Roman provided a detailed account of the events of July 8, 2007. Roman identified photographs of Ayala, Garcia, Cabrera, Castro, and Valdez. He stated that he owned a 1995 red Camaro. Roman drove Razo, Valdez, and Anthony Hernandez to the party. He saw Ayala stabbing a man, Garcia punching the same man, and Valdez hitting the man with a metal bat after the man had fallen to the ground. Roman also saw Castro and Cabrera punching a different man. Roman heard someone yell "Latino gang" and identified the attackers, including Hernandez, as "Ls."
The prosecutor subsequently played for the jury portions of the recordings of the August 16, 2007 and September 11, 2007 police interviews of Roman. In the August 16 interview, Roman stated that he had driven Valdez, who was wearing a black and red jersey, away from the incident in his car. Valdez had a bat with him.
C. Analysis
Ayala, Valdez, Garcia, Estrada, and Zamora contend that the trial court's admission at trial of Roman's prior statements to the police violated their confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution.As Roman's prior statements to the police were testimonial, defendants maintain their admission violated the principles of the Sixth Amendment as articulated in Crawford v. Washington. Although they acknowledge Roman testified at trial, defendants assert his total memory loss about the events surrounding the crimes and the content of his statements to the police rendered them unable to engage in meaningful cross-examination.
Defendants do not argue any state evidentiary law error in the admission of Roman's statements.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
We agree that defendants were effectively unable to question Roman at trial about his recollection of the events of July 8, 2007. However, Roman did testify at trial, did answer questions, and did not assert a privilege.
As our Supreme Court has reiterated," 'when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.' (Crawford, supra, at pp. 59-60, fn. 9 [citing California v. Green, [(1970)] 399 U.S. 149; see People v. Cowan (2010) 50 Cal.4th 401, 463 ['The Sixth Amendment's confrontation clause does not prohibit admitting into evidence "testimonial" hearsay statements against a defendant if the declarant appears for cross-examination at trial.'].)" (People v. Rodriguez (2014) 58 Cal.4th 587, 632 (Rodriguez).)" '[T]he Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." '" (United States v. Owens (1988) 484 U.S. 554, 559.) To satisfy the confrontation clause, "It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination . . .) the very fact that he has a bad memory." (Ibid.)
In Rodriguez, our Supreme Court cited with approval a prior decision from the Court of Appeal that rejected a Sixth Amendment challenge similar to the one defendants make here:" 'The witness . . . was not absent from the trial. She testified at length at trial and was subjected to lengthy cross-examination. The jury had the opportunity to observe her demeanor, and the defense cross-examined her about bias. Even though she professed total inability to recall the crime or her statements to police, and this narrowed the practical scope of cross-examination, her presence at trial as a testifying witness gave the jury the opportunity to assess her demeanor and whether any credibility should be given to her testimony or her prior statements. This was all the constitutional right to confrontation required.' [Citation.] The same is true here." (Rodriguez, supra, 58 Cal.4th at p. 633.)
In asserting their confrontation rights were violated here, defendants rely on Douglas v. Alabama (1965) 380 U.S. 415, a case in which a witness invoked the Fifth Amendment privilege against self-incrimination and refused to answer any questions. On those facts, the United States Supreme Court found a violation of the confrontation clause. (Id. at p. 419.)
Our Supreme Court has rejected the reading of Douglas that defendants press here. (See People v. Dement (2011) 53 Cal.4th 1, 23-24, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) The court in Dement read Douglas's holding as limited to its facts and observed, "Nothing in Crawford casts doubt on earlier cases holding that the confrontation clause is not violated by the introduction of out-of-court statements a witness denies or does not recall making." (Dement, at p. 24.)
Roman testified over the course of three court days and did answer questions. The prosecutor did not ask Roman leading questions. Roman's trial testimony, while lacking any specifics about July 8, 2007, provided multiple grounds on which defendants could attack his credibility and perception, both with respect to the crimes themselves and to his subsequent statements to the police.
We do not agree that defendants had no opportunity for cross-examination of Roman such that admission of his prior statements violated the confrontation clause. (Cf. People v. Murillo (2014) 231 Cal.App.4th 448, 458 [confrontation clause violation where witness replied he had "nothing to say" to over 100 leading questions].) We are not persuaded that the particular facts of this case suggest we should depart from the well-established rule that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Crawford, supra, 541 U.S. 36 at p. 59, fn. 9.)
For these reasons, we decide that the trial court did not violate defendants' rights to confrontation under the Sixth or Fourteenth Amendments when it admitted Roman's prior statements to the police.
VIII. ADMISSION OF POLICE-OFFICER GANG EXPERT'S TESTIMONY
Defendants contend that reversal is required because the trial court prejudicially erred in refusing to hold an Evidence Code section 402 hearing on the admissibility of testimony by a police-officer gang expert and in permitting this expert to give unreliable expert testimony.
A. Background
Defendants brought in limine motions seeking an Evidence Code section 402 hearing pertaining to the anticipated testimony of the prosecution's police-officer gang expert, Yvonne Dela Cruz. Ayala contended that a hearing was necessary because the prosecutor might seek "improper, inadmissible and prejudicial testimony" from Dela Cruz. He asserted that an Evidence Code section 402 hearing was needed to determine "which specific acts allegedly committed by Los Latinos Locos" Dela Cruz intended to rely upon and whether evidence of those acts was "competent" or "unreliable." Cabrera, Garcia, and Valdez brought similar motions. Other defendants joined these motions. The prosecutor argued that an Evidence Code section 402 hearing was not necessary because Dela Cruz had already testified at three preliminary examinations in this case, and the trial court did not need to conduct a hearing in order to rule on the proper scope of her testimony.
Razo's trial counsel conceded at the hearing that he did not need an Evidence Code section 402 hearing unless Dela Cruz's opinion as to his client had changed since the preliminary examination.
The trial court held an in limine hearing concerning "all things relating to the gang expert." The court noted that Dela Cruz had testified at the preliminary examinations and stated "it doesn't seem that we need to have a[n] [Evidence Code section] 402 hearing" in light of that fact. The prosecutor pointed out that he had listed in his trial brief the proposed scope of Dela Cruz's testimony. He argued: "They received a gang report. They've seen the basis of her opinion.... [C]ounsel knows the material because it's been discovered for years: All of the reports, all the police reports that relate to the predicates, all the [field identification] cards that relate to their clients, all the photos of tattoos, all the gang indicia." He took pains to distinguish an Evidence Code section 402 hearing from an in limine hearing to decide whether evidence should be excluded under Evidence Code section 352. He argued that an Evidence Code section 402 hearing was "not the [proper] forum" for determining the proper scope of expert testimony.
The trial court denied the requests for an Evidence Code section 402 hearing. It found that such a hearing was not necessary since the issues "can be covered by cross-examination" or individual items could be ruled upon in advance.
Dela Cruz testified twice at the 2013 trial. The first time she testified, as the first witness at trial, she described her qualifications on voir dire. She had been a San Jose Police Officer for 17 years and had worked for the department's gang investigation unit for three years. Dela Cruz had worked on more than 250 gang cases while she was in that unit, and she had testified as a gang expert 23 times, always about Hispanic gangs in San Jose, but only one of those occasions had been a jury trial. She had last qualified as a gang expert in 2009. She had never testified about Triple Ls except in this case.
She testified that she did not recognize Creekside as a gang because neither she nor her colleagues had investigated any crimes associated with it. She had never heard of it except in association with this case.
During her 12 years as a patrol officer, Dela Cruz had talked to hundreds of gang members she encountered on the streets and learned about gangs from them. Dela Cruz had interacted with "some" Triple Ls gang members in the course of her work. She had learned from them Triple Ls' colors, signs, symbols, territory, activities, customs, and habits. Dela Cruz knew Triple Ls to be a Norteno gang. Dela Cruz testified that she had talked to Chavoya a number of times, including before the killing of Medina.
After this voir dire testimony, the trial court found that Dela Cruz was qualified to testify as an expert on "signs, symbols, membership, operations and activities, culture and habits of Norte[n]o criminal street gangs." Dela Cruz testified about general background information concerning Triple Ls. She explained that Triple Ls was short for Los Latinos Locos and that Triples Ls also went by LLL. As a Norteno gang, it had "adopted some of the commonalities" of the Nuestra Familia, and it associated with the number 14. Triple Ls also associated with the color red, the color green, sharks, the San Francisco 49ers, and the St. Louis Cardinals. The reason Triple Ls associated with the color green was because it considered the Evergreen area of San Jose to be its territory. Triple Ls' turf started out being at Brigadoon Park and then expanded to other areas, including Evergreen College. No other San Jose Norteno gang associated with the color green. Triple Ls members might have a tattoo of LLL, Triple Ls, Los Latinos Locos, a shark, or the St. Louis Cardinals symbol. Sureno gangs were the rival of Norteno gangs, and Sureno gangs associated with the color blue and the number 13. Triple Ls sometimes used "LG" for Latino Gang as graffiti to mark its territory. Dela Cruz's opinion that Triple Ls was a Norteno gang was not based on information from Chavoya.
She testified that she did not know if Triple Ls had any direct correlation to Nuestra Familia or received direction from Nuestra Familia.
Dela Cruz testified again much later in the trial. It was her opinion that Triple Ls was a criminal street gang, and she described its primary activities and pattern of criminal activity-the requirements to qualify Triple Ls as a "criminal street gang" under section 186.22, subdivision (b), the gang enhancement statute. Dela Cruz also identified the bases for her opinions. She testified about her opinions regarding whether certain individuals, including each defendant, was a member of Triple Ls and the bases for those opinions. She also expressed her opinion that the charged offenses were committed for the benefit of Triple Ls.
B. Analysis
1. Denial of Evidence Code Section 402 Hearing
Valdez generally argues that the trial court erred in refusing to hold an Evidence Code section 402 hearing concerning Dela Cruz's proposed testimony. He claims that such a hearing was necessary to determine whether the bases for Dela Cruz's opinions were reliable. Valdez asserts that leaving for objections and cross-examination any attack on the reliability of the bases for her opinions risked "exposing the jury to inadmissible material."
Because a trial court exercises its discretion in deciding whether to hold an Evidence Code section 402 hearing to consider the admissibility of evidence, we review the trial court's ruling for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197; Evid. Code, § 402, subd. (b) ["The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury," italics added.].)
Valdez cites Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 in support of his claim that "[o]nly through a section 402 hearing could the court perform its' "gatekeeping" responsibility.'" The California Supreme Court's opinion in Sargon did not hold that an Evidence Code section 402 hearing is mandated whenever the reliability of the bases for expert opinion testimony is challenged. Instead, Sargon confirmed that a trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. (Sargon, at p. 770.) Whether the trial court can fulfill this gatekeeping role without an Evidence Code section 402 hearing remains within the trial court's discretion and depends on the circumstances of the case.
Garcia contends that an Evidence Code section 402 hearing was necessary in order to support the defense's Evidence Code section 352 objections to portions of Dela Cruz's proposed testimony. The trial court advised the parties that it remained open to holding hearings outside the jury's presence on any specific objections by the defense, such as Evidence Code section 352 objections to portions of Dela Cruz's proposed testimony. The court made clear that its denial of an Evidence Code section 402 hearing addressing the general scope of Dela Cruz's testimony would not deprive the defense of an opportunity to resolve any specific issues in advance of Dela Cruz's testimony, but only rejected the request for an evidentiary hearing at that early point on the admissibility of her testimony generally.
We conclude that defendants have failed to establish that the trial court abused its discretion. Dela Cruz had testified at the preliminary examinations and had prepared a report that detailed the bases for her opinions. As a result, the defense was well equipped to attack the reliability of the bases for her opinions by either bringing a specific motion to exclude some aspect of her expected testimony in advance, by objecting to her testimony before the jury, or by attacking her testimony on cross-examination. Under these circumstances, we see no abuse of discretion in the trial court's denial of the defense requests for an Evidence Code section 402 hearing on the scope of Dela Cruz's testimony.
2. Admissibility of Dela Cruz's Testimony
Defendants contend that the trial court abused its discretion in admitting Dela Cruz's expert testimony.
"If a witness is testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his [or her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him [or her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates, unless an expert is precluded by law from using such matter as a basis for his [or her] opinion." (Evid. Code, § 801.)
Valdez contends that the trial court abused its discretion in permitting Dela Cruz to testify at trial because she relied on unreliable statements of Chavoya and Jose Castro to support her testimony. He argues that Chavoya and Jose Castro were so unreliable that Dela Cruz could not properly base expert testimony on the information they provided.
It is a "fundamental rule that 'any material that forms the basis of an expert's opinion testimony must be reliable.'" (People v. Nieves (2021) 11 Cal.5th 404, 440.)"' "[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based."' [Citation.] A trial court enjoys broad discretion when ruling on foundational matters such as qualifying a witness under Evidence Code section 801, subdivision (b), and such decisions will not be disturbed on appeal absent a showing of a manifest abuse of discretion." (People v. Jones (2013) 57 Cal.4th 899, 951.)
We perceive no abuse of discretion in the trial court's conclusion that Dela Cruz's testimony was based on sufficient reliable information to merit its admission. Dela Cruz's testimony was not based solely on information provided by Chavoya and Jose Castro. She identified numerous sources of information as the bases for her opinions, including conversations with gang members, certified prior convictions, photographs, and other information that was independent of Chavoya and Jose Castro. In addition, because Chavoya and Jose Castro testified at trial and were extensively cross-examined, the jury could decide for itself whether their statements and testimony should be discredited as unreliable and, in turn, whether Dela Cruz's reliance on information provided by them discredited her testimony.
The prosecution produced evidence corroborating some of the information provided by Chavoya and Jose Castro, which provided some support for the reliability of that information. While the jury reasonably could have discredited portions of the testimony of Chavoya and Jose Castro, that possibility did not establish that Dela Cruz's testimony was inadmissible due to her utilization of some of their information. That was a question for the jury, and the trial court could reasonably conclude that the testimony and statements of Chavoya and Jose Castro were not so unreliable as a whole to preclude Dela Cruz from relying on some of the information they provided as the foundation for her expert opinions. Dela Cruz's other sources of information and her expertise provided her with the ability to assess whether the information provided by Chavoya and Jose Castro was consistent or inconsistent with her other information, thereby testing the reliability of the information provided by Chavoya and Jose Castro.
Valdez also claims that Dela Cruz's testimony should have been excluded because she testified that she determined whether information was true or not and relied only on the information she credited. He contends that this made her testimony itself a "determination[] of credibility" and violated his right to have the jury determine credibility. We disagree. That Dela Cruz assessed whether particular items of information were sufficiently reliable to form the basis for her opinions did not mean that she was invading the province of the jury. She was subject to cross-examination on her assessments, and the jury was free to disagree with them. The trial court did not abuse its discretion in failing to exclude Dela Cruz's testimony on the ground that she determined what information to credit as the basis for her opinions.
Valdez contends that Dela Cruz's exposure to gang information was inferior to the jurors because she did not attend the entire trial, and he argues that the jury was therefore just as competent as Dela Cruz to assess the gang issues to which her testimony pertained. Dela Cruz did not testify about the facts of the offenses. Her testimony was limited to the gang issues and was based on her extensive expertise and her long experience with gangs. We see no error in the trial court's conclusion that she had more knowledge and experience than the jurors about gang activity in general and Triple Ls in particular, and that these are not matters of common knowledge. We decide the trial court did not abuse its discretion in determining that her expert testimony would assist the jury.
Valdez argues that police-officer gang experts are inherently biased. Although he acknowledges that her bias and other alleged defects in her testimony could be addressed by impeaching her through cross-examination, he argues that defendants would have been "better protected" if her testimony had been excluded entirely. These arguments do not establish an abuse of discretion. Bias is adequately explored through cross-examination and does not create a mandate for exclusion of expert testimony.
Garcia attacks the reliability of Dela Cruz's testimony on the ground that she refused to accept the distinction between the third and fourth generations of Triple Ls, which Chavoya's testimony had highlighted. Garcia implicitly acknowledges that this aspect of her testimony was addressed on cross-examination. The existence of a conflict between the testimony of two witnesses does not establish that the testimony of one is so unreliable as to be inadmissible. Dela Cruz, as an expert, was free to reject the reliability of Chavoya's description of the structure of Triple Ls based on her experience, and it was for the jury to decide which witness to credit. The trial court did not abuse its discretion in failing to find that this conflict required the exclusion of Dela Cruz's testimony.
We conclude that the trial court did not abuse its discretion in rejecting defendants' motions to preclude Dela Cruz from testifying as an expert at trial.
IX. PRIOR ACT EVIDENCE
The prosecution relied heavily on prior act evidence to prove its theory that defendants were liable for the charged offenses because they were a joint action of Triple Ls. The trial court's limiting instructions concerning these prior acts permitted the jury to use the prior act evidence not only to prove the gang enhancement and special circumstance allegations but also to prove the intent and motive for the substantive offenses.
Defendants contend that the trial court prejudicially erred in two respects with regard to the prior act evidence. First, they assert that the trial court prejudicially erred in permitting Chavoya, Jose Castro, and Dela Cruz to testify about prior acts committed by Triple Ls members, including defendants. Defendants claim that most of the prior act evidence should have been excluded as irrelevant and unduly prejudicial and that its admission violated their due process rights and was an abuse of discretion under Evidence Code section 352. Defendants also contend that Dela Cruz, who lacked personal knowledge of the facts of any of these prior acts, was improperly permitted to testify, over defense objections, to those facts as hearsay basis evidence in violation of their Sixth Amendment rights.
A. In Limine Motions
1. Prior Act Evidence
Defendants filed numerous in limine motions seeking exclusion of prior act evidence. Some of these motions specifically sought the exclusion of particular crimes. Cabrera sought exclusion of evidence of his prior crimes, contending that such evidence was irrelevant and more prejudicial than probative. Garcia sought exclusion of his prior acts (he identified 12 of them) under Evidence Code sections 1101, subdivision (a) and 352. He also sought exclusion of evidence of a 2006 homicide on Pettigrew Drive in San Jose (the Pettigrew homicide) that did not involve any of the defendants, but which Chavoya had disclosed to the police. Estrada sought exclusion of his prior misdemeanor conviction for possession of a weapon. Valdez sought exclusion of his prior juvenile adjudication for bringing a knife to school and testimony by Chavoya and Jose Castro about his other prior acts. Ayala sought exclusion of his prior acts and of the Pettigrew homicide.
The prosecutor sought admission of "predicate crimes," including ones committed by defendants and ones committed by others, to prove the "pattern of criminal activity" and "primary activities" of Triple Ls. The prosecution needed to prove these elements to prove that Triple Ls was a "criminal street gang," for both the gang enhancement and gang special circumstance allegations. (§ 186.22, subd. (e).) A "pattern" is established by proving that members of a group have engaged in crimes listed in section 186.22, subdivision (e). (Former § 186.22, subd. (e).)
The prosecutor also sought admission of prior acts of defendants that were not listed to show defendants' membership in Triple Ls, their "commitment to the gang," and their "willingness to back up gang members." Prior to trial, the prosecutor did not specify precisely how many priors he sought to prove as predicates. Before the motions were heard, the trial court referred to a list of 56 possible predicates, including 23 involving one or more defendants, but the prosecutor denied that he intended to introduce evidence of all 56 possible predicates.
At the initial hearing on defendants' motions, the prosecutor identified some of the specific acts by defendants that he sought to introduce. The prosecutor argued that two juvenile adjudications suffered by Ayala, one of which he identified as a predicate, were both admissible to show Ayala's active participation in the gang, an element of the special circumstance. The prosecutor contended that Cabrera's burglary conviction was admissible as a predicate, and Estrada's misdemeanor weapon possession offense was admissible even though it was not a predicate. The prosecutor sought admission of Garcia's false imprisonment conviction because it had occurred in connection with two predicate crimes committed by others, Garcia's juvenile adjudication for aggravated assault, a predicate offense which the prosecutor sought to introduce to prove the gang's primary activities, and evidence of Garcia's connections to "gang indicia." The prosecutor intended to introduce evidence of Valdez's juvenile adjudication for bringing a knife to school, which was not a predicate, and Zamora's prior conviction for aggravated assault with a gang enhancement, which was a predicate.
Ayala's trial counsel pointed out that Ayala's juvenile adjudication for bringing a knife to school had occurred when he was 14 years old.
The prosecutor also asserted that it was "inevitable" that either he or defense counsel would ask Chavoya about his prior crimes, some of which involved one or more defendants, and "[a]ny one of those could be a predicate." The prosecutor noted that Chavoya had "described about 15 different cases he either was personally involved in or knew about. And these are going to come in for impeachment." At the initial hearing on defendants' in limine motions, the trial court did not exclude any of the prior acts.
At a later hearing held just before Chavoya's testimony, the defense asked the trial court to exclude the many prior acts that Chavoya and Jose Castro had disclosed during their police interviews. The court sought "a summary of prior bad acts" to inform its decision making with regard to testimony by Chavoya and Jose Castro about prior acts. The court told defense counsel: "I just want you to identify the prior bad acts so that I can have those in mind when I consider the motion." Defendants proceeded to generally describe the prior acts that they sought to exclude. "[I]ncidents involving possession of weapons, including knives and/or guns as to themselves and/or as to members, in their view, of Triple L, and they testified [] or they gave statements as to assaults and/or batteries that they may have been involved in that may have involved co-defendants, that may have involved alleged members of Triple L. They gave statements with respect to homicide investigations."
Garcia's trial counsel observed that the prosecutor had identified predicate acts he intended to rely upon but had not identified other prior acts about which the prosecutor intended to question Chavoya or Jose Castro. The court did not order the prosecutor to identify which prior acts he intended to question Chavoya and Jose Castro about. The court ruled that the prosecutor is "entitled to put on his evidence as long as he has provided that to you in discovery. He does not have to pre-try his case by giving you the list that you referred to." The court stated, "I can't make a blanket ruling that prior bad acts are excluded, because I think that each one is going to be a[n] [Evidence Code section] 352 analysis."
Ayala's trial counsel contended that the prior acts identified by Chavoya and Jose Castro in their police interviews were character evidence that should be subjected to "an 1101 analysis," which he argued meant that the prosecution had the burden of demonstrating that this evidence was admissible under Evidence Code section 1101, subdivision (b). He specifically objected to evidence of the "Pettigrew murder," which did not involve any of the defendants, and evidence of a stabbing involving Estrada that had occurred in Brigadoon Park. Estrada's trial counsel joined in this objection. Valdez's trial counsel joined these objections and focused on prior acts involving Valdez, including two incidents involving Chavoya and Valdez. Garcia's trial counsel asserted that there were "at least 15 incidents that were related" by Chavoya, including one that involved Garcia shooting at a house.
The prosecutor pointed out that the court had already ruled that evidence of the "Pettigrew homicide," which did not involve any defendants, could be admitted for the limited purpose of supporting Chavoya's credibility. The prosecutor argued that defendants "need to identify the prior bad acts they are objecting to, rather than just doing a blanket objection." He insisted that none of the evidence was being introduced under Evidence Code section 1101, subdivision (b). The prosecutor nevertheless claimed that the prior acts were admissible to show the necessary predicate crimes, the primary activities of the gang, the active participation element of the special circumstance, and gang membership.
We describe the facts of the Pettigrew homicide, as testified to by Chavoya, below.
Ayala subsequently sought to stipulate that Triple Ls was a "criminal street gang" and that he "was in 2007 a member" of Triple Ls. Garcia's trial counsel told the court that it was her understanding that defendants were willing to stipulate "that Triple L is a criminal street gang." The court expressed uncertainty about whether the other defendants would join in such a stipulation. The prosecutor stated that he was "not going to accept" stipulations. Defendants as a whole never offered such a stipulation, and the prosecutor insisted that he would not stipulate under any circumstances.
The court denied the motion to exclude prior act evidence without prejudice, electing instead to analyze the prior act evidence under Evidence Code section 352 if the defense objected to the admission of specific acts during the witnesses' testimony.
Garcia's trial counsel told the court that she would prepare "a comprehensive document of what [she] view[s] are prior bad acts" that Chavoya and Castro identified in their police interviews in order to assist the court. On the next day of trial, she submitted a 9-page list of prior acts that Jose Castro had mentioned in his interviews and a 21-page list of "prior bad acts that were elicited during the course of the statements of Mr. Chavoya." The list in the record itemizes only a few prior acts that were testified to at trial, including the Pettigrew homicide, an incident on Loch Ness, a shooting by Jose Castro at an In-N-Out Burger and an event immediately following that shooting, and a robbery and shooting at Brigadoon Park involving Chavoya and Valdez. Garcia's trial counsel argued that some of the prior bad acts should be excluded because they were not based on Chavoya's personal knowledge, and she asked the court "to exclude, where appropriate, limit where appropriate, instruct the jury where appropriate" Chavoya's testimony about prior acts.
The court ruled that Chavoya would not be permitted to testify about things of which he lacked personal knowledge unless some exception applied. The court told the prosecutor that, as to prior acts identified on this list of which Chavoya had no apparent personal knowledge, "you [(the prosecutor)] need to talk to me about them before you go into them." The prosecutor responded: "Okay."
The trial court ruled that evidence related to the Pettigrew homicide was admissible but only as to the jury's assessment of Chavoya's credibility. The jury would be so instructed and told that no defendant was alleged to have participated in the Pettigrew homicide.
2. Hearsay Basis Evidence
Defendants objected in limine to Dela Cruz reciting any hearsay basis evidence in support of her opinions, and as described above, they sought an Evidence Code section 402 hearing on the bases for her opinions. Ayala's trial counsel objected to Dela Cruz testifying about any hearsay and asserted that her testimony lacked foundation. Cabrera's trial counsel objected to Dela Cruz testifying about "basis evidence." The prosecutor argued that no Evidence Code section 402 hearing was necessary because Dela Cruz had testified at the preliminary examination and produced a "gang report" that set forth the "basis of her opinion." The court found that an Evidence Code section 402 hearing was not merited at that point, and any "specific issue" could be brought up later if it merited such a hearing.
The prosecutor subsequently told the court that, with respect to a predicate based on Ayala's juvenile adjudication, Dela Cruz would be testifying to a "summary of the underlying facts" based on a police report. He also confirmed that Dela Cruz was "going to talk about" the contents of police reports of other crimes. Ayala's trial counsel objected to Dela Cruz giving such testimony, and the court overruled the objection. The prosecutor confirmed that Dela Cruz would rely on hearsay to support her testimony about these acts. The trial court subsequently ruled, in reliance on People v. Gardeley (1996) 14 Cal.4th 605, that the "expert can rely on inadmissible material as long as -- and there'll be a limiting instruction to the [jury] that the testimony is being utilized for the basis of the opinion only."
One of the predicates that the prosecution relied on was a 2006 assault committed by Troy Garcia and Abel Garcia, which was apparently connected to Garcia's false imprisonment conviction. The prosecutor told the court during in limine motions that the victims refused to testify in the trial.
The trial court granted a defense motion to construe hearsay objections to include objections under the California Constitution and the Sixth Amendment. The court also granted a motion to permit continuing objections and to not require reiteration of objections that had been ruled on in limine. The court also ruled that an objection by one defense counsel would be deemed an objection by all of them. It ruled that in limine rulings were deemed to be trial rulings on objections.
B. Prior Act Evidence Presented at Trial
1. Chavoy a's Testimony
Chavoya provided extensive testimony about the charged offenses. In addition, the prosecutor asked Chavoya if he had told the police about crimes he had committed and crimes he had committed with other Triple Ls members. He said yes. Chavoya testified about his juvenile offenses of burglary, auto theft, and possession of a switchblade, and his violations of his juvenile probation. He had also told the police about stabbings he had committed but for which he had not been arrested. One of these stabbings occurred when Chavoya was with Cabrera and Valdez at a party. They were taunted by other partygoers. A fist fight began and then Chavoya took out a knife, which he had gotten from Ayala, and stabbed a man. As they were leaving, Chavoya and the other Triple Ls members shouted" 'Evergreen'" and" 'Triple L[s].' "
Chavoya testified about another stabbing that had occurred on Brigadoon. Chavoya punched a male who had been cornered by some Triple Ls members who were saying something about "scraps." Chavoya and others beat the male until he was unconscious. At that point, Jose Castro stabbed the male with Ayala's knife. A second victim at that scene was stabbed by both Jose Castro and Ayala with the same knife. Ayala stabbed this male "[a] lot" of times, and "blood was just going all over the place." This stabbing occurred before Ayala became a Triple Ls member. Valdez and Estrada were present at the scene of this stabbing. Chavoya explained that he did not know anything about the victims but "[y]ou don't ask questions, you just do it." The prosecutor asked Chavoya if that was what he did on July 8, 2007, during the attack on Medina and his friends, after Garcia told him to "get ready." Chavoya said "Yes."
" 'Scrap'" is a derogatory term for Surenos.
Chavoya also testified about another stabbing in which he had participated, which had occurred in front of a house on Loch Ness in the Evergreen area of San Jose. Valdez and Jose Castro were present with other Triple Ls members to "retaliate" against people who "ran us out of our own neighborhood." Jose Castro told Chavoya that someone had pulled a gun on him, and Chavoya and others "started looking around for Sure[n]os." Chavoya approached two guys, and they told him they were "from Horseshoe," which was a Norteno gang. Chavoya looked at Jose Castro, who knew people from Horseshoe. One of the men responded by backing off and making a derogatory comment about Nortenos. Chavoya concluded that the men were Surenos and rushed toward them. Everyone ran, and Chavoya and the other Triple Ls members ended up at Garcia's home, where they sought weapons. As they were running, Chavoya saw the Surenos vandalizing the car in which Chavoya and the others had arrived. Chavoya got a machete at Garcia's home, and he and the others returned to where they had encountered the Surenos. Chavoya hit the only man who remained there with the machete, and Jose Castro stabbed him. Valdez punched the man. Jose Castro accidentally stabbed one of his fellow gang members in the finger.
Chavoya testified about another stabbing that had occurred on Sanders Avenue in 2007. Chavoya, Jose Castro, and Ayala were among those present. Chavoya did not actually see the stabbing, but he saw Jose Castro and Ayala "swinging" at the victim. Afterwards he saw Ayala with a screwdriver. The victim was stabbed because someone said he was a "snitch."
Chavoya testified that he had committed a robbery in Brigadoon Park with Valdez in 2006. They were "patrolling the neighborhood" because Triple Ls did not like people in the park after dark. Chavoya had a .22 revolver with him that he gave to Valdez so that Valdez could do the "work" necessary to become a Triple Ls member. They saw people near the swings in the playground area of the park. Initially, they intended only to tell the people to leave the park. Valdez pointed the pistol at the people, and the people ran. Chavoya heard gunshots, and he picked up a purse that the people left behind before he and Valdez ran away. They took a phone out of the purse and threw the phone away, though Chavoya came back for it later. Chavoya took a social security card from the purse, and Valdez took the purse.
Chavoya testified that Valdez had a Triple Ls tattoo (LLLS) on one of his fingers and Evergreen on his stomach.
Chavoya also testified about the Pettigrew homicide. The parties stipulated that no defendant was involved in this incident. The trial court instructed the jury that evidence about the Pettigrew homicide could be used only to assess Chavoya's credibility. Chavoya testified that this homicide occurred in late 2005 or early 2006. Chavoya saw two Triple Ls members at the Garcia home. One of them said that they had to get rid of a gun. This man also took off his clothing, and Garcia's mother burned it. One of the Triple Ls members later told Chavoya that he had killed an Asian man by shooting him in the head during a robbery. Chavoya later learned where the gun had been discarded.
A police officer subsequently testified that he had found a case that matched the facts described by Chavoya. In January 2006, police found an older Asian man dead in his vehicle in front of his house on Pettigrew, which was near the Garcia home. He had been shot twice in the head. Chavoya had told the police where to find a gun that Chavoya said had been used in this killing. Police found a gun at that location in 2007.
On redirect, Chavoya testified that it was the practice of Triple Ls to crash parties on their turf to "[l]et [their] presence be known." Triple Ls members wore green bandanas to make their affiliation obvious. Toward the end of these parties, Triple Ls members would start fights "[j]ust [to] let them know this is [their] neighborhood." That is what Chavoya believed Garcia intended when he said" 'Get ready'" to Chavoya before instigating the attack on Medina and Hortia on July 8, 2007.
2. Jose Castro's Testimony
Jose Castro testified that he became a Triple Ls member when he was 14 years old, and he recruited Ayala, Valdez, and Razo to the group. One of Triple Ls' rules was that "you always had to side with members in any kind of conflict, whether they were right or wrong." If one Triple Ls member was fighting someone, a fellow Triple Ls member was required to join him without asking questions. If someone failed to back up a fellow Triple Ls member, he would be beaten.
Like Chavoya, Jose Castro testified about his prior crimes. He participated in a shooting at an In-N-Out Burger in 2006. He had gone to that location with Ayala, Valdez, Chavoya, Estrada, and others because they had heard that rival gang members would be there. When they arrived, they did not find any rival gang members there. Jose Castro had a .22 revolver with him. Although only a fight was intended, he brought the gun because weapons were frequently used in gang fights. While they were in the parking lot, Jose Castro saw "this van driving wild[ly] and trying to run people over." The van was going towards another Triple Ls member, so Jose Castro shot at the van. The van left the area. His companions abandoned him, and he ran away.
Right after that shooting, Jose Castro, Ayala, and Valdez saw four guys in Brigadoon Park who looked like rival gang members. They approached these four guys and asked them "what they were doing there and where they were from." The four guys remained silent, and Valdez hit one of them. The guys ran, and Jose Castro and his companions chased them. Other Triple Ls members in cars caught up to the guys and began punching and kicking them. Ayala gave Jose Castro a knife, and Jose Castro stabbed one of the guys, who was on the ground, in the side. He gave the knife back to Ayala, and Ayala stabbed one of the other guys. Valdez kicked one of the guys. Jose Castro believed that Triple Ls' reputation would be enhanced by this assault.
Jose Castro was also involved in a stabbing that occurred on Loch Ness Way in late 2005 or early 2006. Jose Castro and a fellow Triple Ls member were walking on Brigadoon when a car pulled up next to them, the occupants said they were Surenos and "pulled out a shotgun." Jose Castro and his fellow Triple Ls member ran back to Brigadoon Park and called another member. The other Triple Ls member arrived in his car with Valdez and Chavoya and picked up Jose Castro and his companion. They drove around the neighborhood looking for "Southerners." They saw a bunch of people who looked like southerners outside a house on Loch Ness, and they stopped. The car in which Jose Castro was riding was pulled over, and they got out and confronted some of these people, who claimed to be northerners. Then these people called out to the others, and 30 people started chasing Jose Castro and his companions.
After the Triple Ls members escaped from these people, they went to Garcia's home. Garcia's father told them that they had to get those men out of the neighborhood that night. A group of Triple Ls members, including Valdez, returned to the house on Loch Ness, with Chavoya taking a bat and Jose Castro a knife. When they arrived, there was just one man and his girlfriend there. Chavoya hit the guy in the leg with a bat, others hit the man, Jose Castro stabbed the man in the ribs, and then they all left.
Jose Castro also testified about an incident on Colt Way. Chavoya, Valdez, Razo, Cabrera and other Triple Ls members, including Jose Castro, went to a party on Colt. The people holding the party turned them away, and Jose Castro left.
Jose Castro also testified that a fellow Triple Ls member told him in early 2006 or late 2005 that he had shot an Asian man in the head while trying to carjack him. This testimony concerned the Pettigrew homicide.
3. Dela Cruz's Testimony
Dela Cruz testified on voir dire that her opinions in this case were based in part on interviews, which were largely "informal conversation[s]," and on her research. The court ruled that Dela Cruz was qualified to testify as an expert on the "signs, symbols, membership, operations and activities, culture and habits of Norte[n]o criminal street gangs." Dela Cruz testified that one factor she would consider in deciding whether someone was a gang member was if someone had told her that the person was a gang member. She determined whether a person was a gang member by reviewing field identification (FI) cards and "crime reports."
Dela Cruz testified that Ayala was a Triple Ls member based in part on his tattoos and his clothing during the attack that formed the basis of the charges here. Based on police reports and field identification cards, Dela Cruz testified that Ayala associated with other Triple Ls members. Juvenile records demonstrated that Ayala had possessed a knife on school grounds in 2005 and committed battery at school in 2005. Dela Cruz described the facts of the battery based on the police report, which, she testified, said it involved a gang-related assault by Ayala. This information helped to support her opinion that Ayala was a Triple Ls member and an active participant in Triple Ls at the time of the instant offenses.
Dela Cruz testified that Cabrera was a Triple Ls member based on his tattoos, his association with Triple Ls members, his commission of the current offenses with other Triple Ls members, and his stepmother's belief that he was a Triple Ls member. Dela Cruz mentioned a 2005 carjacking during which Cabrera and Estrada were together with a Triple Ls member. She also considered a belt with an "L" buckle and gangster rap lyrics written by Cabrera. Dela Cruz also testified about a burglary conviction Cabrera had suffered for an August 2005 incident.
Dela Cruz testified that Garcia was a Triple Ls member based on police reports that gang clothing had been seized from him in the past, he associated with Triple Ls members, his "family members are Triple L gang members," and gang clothing had been seized from his home in this case. She testified that one of the predicate crimes involved Garcia and three other Triple Ls gang members committing an assault in 2006.
Dela Cruz described the facts of this 2006 assault, of which she had no personal knowledge. The victim had taken offense at Triple Ls tagging on his fence, and he went and "did doughnuts" in front of what he thought was a Triple Ls house. Triple Ls members came out of the house and threatened him. After the victim returned home, Triple Ls members severely beat him with a bat. Hearsay objections to this testimony were overruled. The court instructed the jury that "when the witness is testifying about her summary of the facts, that's not offered that it's true, it's offered to show this is what her opinion is based upon, and that's the purpose of it." Dela Cruz's opinion that Triple Ls had engaged in a pattern of criminal activity was based in part on that 2006 offense. The documentation of the 2006 offense, which resulted in convictions for two individuals with gang enhancements, did not identify the gang or provide any facts. She testified that Garcia was "present" during that assault, and he was convicted of false imprisonment for his part in it.
Dela Cruz also testified, based on a police report, that Garcia had been involved in an "incident at Brigadoon Park" in 2001, and about which she had no personal knowledge. Certified juvenile records showed that Garcia and his brother had suffered juvenile adjudications for assault with a deadly weapon with a gang enhancement for that incident, which Dela Cruz described as involving several other Triple Ls members. Over a hearsay objection, Dela Cruz testified, based on a report, that gang indicia had been recovered in a 2002 search of Garcia's residence. Based on another report, she testified that Garcia had been stopped at school in 2005 wearing gang clothing. On another occasion, Garcia was "arrested with a short-barreled shotgun." He was wearing gang paraphernalia at the time. Another time, in 2001, Garcia brought a knife to school. He had a juvenile adjudication for this act. Dela Cruz testified that Garcia's father was a Triple Ls member and that one of Garcia's brothers was "considered NF, Nuestra Familia," while two other brothers were Triple Ls members. The one who was "considered NF" had a Triple Ls tattoo on his abdomen. Dela Cruz did not specify the source of her information about Garcia's family's gang affiliations.
Dela Cruz testified that Valdez was a Triple Ls member. She based this on his tattoos, his association with Triple Ls members and its territory, and a statement (presumably made to her) by a school principal that Valdez was a Triple Ls member. Valdez had" 'Evergreen'" tattooed on his stomach. Valdez had a juvenile adjudication for bringing a knife to school in 2006. Valdez had been found in the presence of Triple Ls gang members in 2006. In September 2006, Valdez and Chavoya had gone to "crash" a party on Glenrio Drive, and they had been "brutally beaten" and ended up in the hospital. Dela Cruz's opinion was also based on items found in Valdez's residence in this case, including a St. Louis Cardinals cap. She testified that he was an active participant in Triple Ls.
The trial court overruled a hearsay objection, on the basis that an expert could testify to hearsay sources of information.
Dela Cruz testified that Razo was a Triple Ls member, based on his association with Triple Ls members and its turf, and items seized from his residence in this case, including green bandanas, a St. Louis Cardinals hat, and a green belt with a buckle with" 'L'" on it. Photographs on Razo's cell phone showed Razo with Ayala and Jose Castro making Triple Ls gang hand signs. Another photo showed Razo with Chavoya and Jose Castro.
Dela Cruz testified that Zamora was a Triple Ls gang member based on his association with Triple Ls members and its territory and "his history in criminal violence." In 1997, a Norteno gang member was arrested while in Zamora's presence. Zamora was wearing Norteno gang indicia. In October 1996, Zamora and Norteno gang members were involved in the stabbing of a Sureno gang member with an ice pick. Dela Cruz provided details of this crime, about which she had no personal knowledge, from a police report. Zamora and two others encircled the victim at a bus stop. After the victim was stabbed, Zamora ran away with the ice pick. Zamora was convicted of assault with a deadly weapon with a gang enhancement for this incident, though he was not the stabber. During a jail call with Garcia's brother, Zamora described himself as" 'straight OG,'" which Dela Cruz understood to mean original gangster-an older gang member who "will give direction" to younger gang members and be respected by them.
Dela Cruz testified that Estrada was "an associate" of Triple Ls gang members. She based this conclusion on his association with Triple Ls members and its territory, and on his "criminal history." She testified that in February 2005 he was present with Cabrera and another Triple Ls member. Based solely on police reports, she testified that in March 2005, Estrada was arrested in Brigadoon Park for possession of a weapon (a baseball bat), after he was found hiding with several older Triple Ls gang members. She testified that Brigadoon Park is claimed by Triple Ls as its territory. Estrada pleaded no contest to a misdemeanor weapon count. Another police report concerned an incident at an In-N-Out Burger on April 1, 2007, in which Estrada was with a Triple Ls member.
Dela Cruz also testified about "other predicates" based on her "research." One happened on Van Winkle in March 2007. A party was interrupted by gunshots, and a partygoer was assaulted by Triple Ls members with a deadly weapon. A Triple Ls member was convicted of felony assault for this incident.
4. Other Evidence of Prior Crimes
In October 2005, Ayala was alleged in a juvenile petition to have brought a knife to school in September 2005 and in a second petition to have committed felony aggravated assault and misdemeanor battery at a school in October 2005. He admitted these allegations in November 2005. Although there were no gang allegations, he was ordered not to associate with gang members.
In 2006, Valdez admitted a juvenile allegation of bringing a knife to school.
In 2001, Garcia admitted juvenile allegations of bringing a knife and a pellet gun to school. In 2002, Garcia admitted a juvenile allegation of aggravated assault and a gang enhancement allegation. His codefendant, his brother Louie, also admitted an aggravated assault count and a gang enhancement allegation. In 2006, Garcia was alleged to have committed two counts of aggravated assault with two others and gang allegations were alleged as to all of them. One of his codefendants admitted one of the assault counts but not the gang enhancement allegation. Garcia pleaded no contest to an amended count of felony false imprisonment, and the other counts and enhancement allegations were dismissed.
In 1997, Zamora was charged with aggravated assault with an ice pick with a gang enhancement allegation. He pleaded no contest and admitted the gang allegation.
In 2006, Cabrera was charged with an August 2005 first degree burglary and attempted burglary. He pleaded guilty to the burglary count, and the attempted burglary count was dismissed.
It was stipulated that Estrada had pleaded no contest to possession of a weapon in 2005.
Multiple witnesses testified about an August 7, 2006 incident at Brigadoon Park in which Chavoya claimed he and Valdez had participated. Tram Nguyen and four friends were in the park late at night. They were hanging out by the swing set. A brown-skinned male approached them wearing a hoodie with a red bandana over his face. This male had a long silver gun, and he pointed it at one of her male companions and said" 'Nigga, give me your phone.'" Nguyen and her friends "all just started running [in] different directions." As she ran, she heard "four or five" "[g]unshots." She looked back and saw two or three other people running with the shooter away from the park. One of her male friends was hit in the arm and ended up in the hospital.
One of Nguyen's friends testified as a rebuttal witness. She testified that she and her friends were at Brigadoon Park late at night when a thin Hispanic male with a red bandana over his face approached them, and one of her friends said "He has a gun." The male who had approached them had a silver gun, and he said" 'Give me your cell phone,' 'N' word." She "froze" while her friends ran away. He took her purse, which contained her cell phone, and chased after her friends. She ran away and heard multiple gunshots as she ran.
C. Jury Instructions
During cross-examination of Dela Cruz, the trial court instructed the jury, at the prosecution's request: "[T]here [are] questions that are being asked about conversations that the witness has had with other people, and those statements that are made by other people are not being offered for the truth of what the person is saying but [are] only being offered insofar as [they] form[] a basis for the witness's opinion."
At the conclusion of the trial, the jury was instructed: "Detective Dela Cruz testified that in reaching her conclusions as an expert witness, she considered statements made in various San Jose Police Department reports. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."
The jury was also given an instruction pertaining to its consideration of "evidence of gang activity." The instruction permitted the jury to consider that evidence to show the "intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements and special circumstances allegations," "motive," "heat of passion," gang membership or association, the credibility of a witness, and the information relied on by an expert witness. This instruction stated that the jury was precluded from using this "gang activity" evidence "for any other purpose" or to show "bad character" or a "disposition to commit crime."
D. Analysis
1. Prior Act Evidence
Defendants contend that the trial court prejudicially erred in admitting prior act evidence that they claim had little or no probative value and was highly prejudicial.
Evidence Code section 1101 governs admission of prior act evidence. "Except as provided in this section and in [s]ections 1102 [where defendant offers evidence of his own character], 1103 [where defendant offers evidence of the victim's character], 1108 [sex offenses], and 1109 [domestic violence], evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (Evid. Code, § 1101.)
We review the trial court's admission of evidence under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668 (Fuiava).)" 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' [Citation.]' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." '" (Ibid.)
When admitting prior act evidence, a trial court must guard against undue prejudice." 'Even where such evidence is relevant for other purposes . . . evidence of other crimes "contains within itself a substantial degree of prejudice [and] should be received with 'extreme caution,' its admissibility 'examined with care,' and in the event of uncertainty as to its connection with the offense charged 'the doubt should be resolved in favor of the accused.'"' [Citation.] 'The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Jefferson (2015) 238 Cal.App.4th 494, 504-505.)
The trial court admitted the prior act evidence against defendants not only on the elements of the gang enhancement and special circumstance allegations but also to show the motive for the charged substantive offenses. The gang enhancement and special circumstance allegations required proof that Triple Ls was a "criminal street gang." (Former § 186.22, subds. (b) &(f); § 190.2, subd. (a)(22).) A group is a" 'criminal street gang'" only if (1) its members have engaged in a"' "pattern of criminal activity," '" which is statutorily defined as the commission of at least two of the crimes listed in former section 186.22, subdivision (e), and (2) the group's" 'primary activities'" are also crimes on that list. (People v. Navarro (2021) 12 Cal.5th 285, 328 (Navarro).) "Two predicate offenses is [] the minimum that the prosecution was required to prove, but proof of more than the minimum [is] consistent with this statutory language." (Id. at pp. 328-329.) To prove primary activities, "the prosecution may need to introduce more than the bare minimum of predicate offenses to ensure that the jury is provided with a reasonable account of the 'primary activities' of the gang.... [¶] Section 352 serves as a brake on such proof, limiting it to a number of predicate offenses that is not more prejudicial than necessary to make the case under the elements of section 186.22." (Id. at p. 329.)
Although the prosecutor denied that he was seeking admission of the prior offenses under Evidence Code section 1101, subdivision (b), the purposes for which he sought admission of this prior act evidence fell squarely within that statute.
The prosecution also sought to use evidence of prior acts by defendants with other Triple Ls members to prove the special circumstance elements that Ayala and Valdez were "active participant[s]" in Triple Ls (§ 190.2, subd. (a)(22)) and that the murder "was carried out to further the activities" of Triple Ls. (Ibid.)
In addition, the prosecution sought to use the prior act evidence to establish the motive for the charged offenses. The prosecution's theory was that the charged offenses were committed to burnish Triple Ls' reputation for violence. It argued that evidence that defendants were Triple Ls members who had a history of Triple Ls involvement tended to show their "commitment to the gang" and their "willingness to back up gang members," which motivated their commission of the charged offenses.
Defendants contend that the prior act evidence should have been excluded because it was "propensity" evidence that prejudicially portrayed them as predisposed to violent crime. Ayala, for instance, contends that the admission of evidence of his prior acts violated his constitutional rights because it was "overkill" that portrayed him as "the type of person who would stab another individual in a pre-planned attack" and who "was predisposed to carry a knife and use it during altercations."
Prior act evidence is admissible under Evidence Code section 1101, subdivision (b) for purposes other than propensity, and the prosecution sought admission of this evidence for nonpropensity purposes. The trial court's limiting instruction to the jury confirmed that the prior act evidence had been admitted for only nonpropensity purposes, and this instruction precluded the jury from using any of the prior act evidence to show "bad character" or a "disposition to commit crime." Since a jury must be presumed to follow such instructions (People v. Foote (1957) 48 Cal.2d 20, 23 (Foote)), we reject defendants' claim that the trial court erroneously admitted "propensity" evidence. As the prosecutor argued to the jury, the prior act evidence had been introduced to prove the primary activities and pattern of criminal activity requirements for the gang enhancement and special circumstance allegations.
Ayala argues that the prior act evidence was irrelevant because he was willing to stipulate that Triple Ls was a criminal street gang and that he was a member of Triple Ls, but the prosecutor refused to stipulate. He acknowledges that the prosecutor was not "legally obligated" to accept his offer to stipulate if the stipulation "would deprive the state's case of its evidentiary persuasiveness or forcefulness." (People v. Rogers (2013) 57 Cal.4th 296, 329.) Ayala's willingness to stipulate that Triple Ls was a criminal street gang and that he was a Triple Ls member did not render the prior act evidence irrelevant or erase its probative value.
Ayala's trial counsel conceded in his opening statement and closing argument that Ayala was a gang member. Cabrera's trial counsel conceded in closing argument that Cabrera was a gang member.
Defendants did not jointly offer a stipulation that would have eliminated any dispute about whether Triple Ls was a criminal street gang or whether they were Triple Ls members. Therefore, prior act evidence would have remained relevant. The prosecutor would still have needed to prove that Triple Ls was a criminal street gang and that the other defendants were Triple Ls members. Ayala's prior acts would have been relevant to whether Triple Ls was a criminal street gang. Ayala's proposed stipulation that he was a Triple Ls member also would have deprived the prosecutor's case against him of a significant amount of its persuasive value as to the special circumstance because the proffered stipulation lacked the force of the extensive evidence of Ayala's active participation in Triple Ls. Furthermore, a mere stipulation would have lacked the forcefulness of the prior act evidence as to Ayala's motivation for and willingness to commit the murder of Medina on behalf of Triple Ls.
Valdez asserts that evidence of his participation in the Brigadoon Park robbery/shooting should have been excluded because that evidence lacked probative value. He emphasizes that the only definitive evidence of Valdez's involvement in that crime was the uncorroborated testimony of Chavoya, an accomplice. He argues that the admission of evidence of this prior act was highly prejudicial because it "transform[ed] Valdez, in the jurors' eyes, from a teenager with no documented criminal activity, clothed with the presumption of innocence, into a vicious terrorist." Valdez suggests that the prosecution could have used this crime as a predicate by sanitizing it to exclude Chavoya's testimony that Valdez was involved.
We disagree with Valdez's assertions. Chavoya's testimony about Valdez's participation in the uncharged Brigadoon Park robbery/shooting was not required to be corroborated because, as Valdez acknowledges, the accomplice corroboration requirement applies only to the proof necessary for a "conviction." (§ 1111.) This testimony had significant probative value as to Triple Ls' primary activities and pattern of criminal activity, and Chavoya's testimony about this crime, though not his claim that Valdez was involved, was largely corroborated by testimony of some of the victims. This prior act evidence had significant probative value as to Valdez's active participation in Triple Ls. We do not consider the circumstance that one of the victims of the robbery/shooting was wounded by a gunshot during this crime to be so inflammatory as to warrant the exclusion of evidence of this prior act, when it is considered in the context of Valdez's charged conduct of beating Medina to death with a bat.
Both Valdez and Garcia challenge the admission of evidence of the Pettigrew homicide. Although they acknowledge that this evidence was limited to Chavoya's credibility and the jury was told that no defendants were involved in it, Valdez argues that the Pettigrew homicide prejudicially portrayed Triple Ls members as "disposed to murder." Garcia argues that the evidence about this prior act prejudicially linked his family to a murder. This contention is undermined by the limiting instruction that this evidence could be used solely with regard to Chavoya's credibility, and we must presume the jury followed its instructions. (Foote, supra, 48 Cal.2d at p. 23)
Defendants generally assert that the trial court admitted "excessive" evidence of uncharged prior acts. "That evidence of a defendant's separate offense may be admissible to prove a predicate offense does not mean trial courts must in all cases admit such evidence when offered by the prosecution." (People v. Tran (2011) 51 Cal.4th 1040, 1049.) "[A]lthough the court need not limit the prosecution's evidence to one or two separate offenses lest the jury find a failure of proof as to at least one of them, the probative value of the evidence inevitably decreases with each additional offense, while its prejudicial effect increases, tilting the balance towards exclusion." (Ibid.) The same is true for prior acts that are not predicates. Where the prior acts are merely cumulative, the potential prejudice may outweigh the probative value of the evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Nevertheless, our review is limited to determining whether the trial court abused its discretion in admitting the prior act evidence. (Fuiava, supra, 53 Cal.4th at pp. 667-668.)
While the trial court permitted the prosecution to introduce a very substantial quantity of prior act evidence, we decide that the trial court did not abuse its discretion in so doing.
The prosecution bore the burden of proving beyond a reasonable doubt that each defendant was criminally responsible for all of the charged offenses, that Triple Ls was a criminal street gang, that Valdez and Ayala were active participants in Triple Ls, and that the charged offenses were committed for the benefit of Triple Ls. The prior act evidence played an important, and legally permissible, role in meeting this burden. This evidence provided the context for understanding why defendants would have been motivated to commit the charged offenses, which otherwise might have seemed inexplicable, as it involved a seemingly random and violent attack on strangers.
None of the prior act evidence was more inflammatory than the charged offenses. The only evidence of a prior fatal act was limited to Chavoya's credibility and did not involve any defendant. We decide on this record that the trial court did not abuse its discretion in determining that the probative value of this evidence was not substantially outweighed by the risk of prejudice in light of the limiting instructions restricting the jury's use of this evidence.
2. Hearsay Basis Evidence
Defendants maintain that reversal is required for all defendants on all counts because the portion of the prior acts evidence that came in only through Dela Cruz's testimony as hearsay basis evidence violated their Sixth Amendment rights.
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), issued after defendants' trial, the California Supreme Court held that "[t]he expert is generally not permitted . . . to supply case-specific facts about which he has no personal knowledge." (Id. at p. 676.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Id. at p. 684.) "When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the [factfinder] as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) The court held that Sixth Amendment concerns could not be eliminated by instructing the jury that the hearsay basis evidence was not to be considered for its truth but only as the basis of the expert's opinion. (Id. at p. 686, fn. 13.)
The Attorney General concedes that Dela Cruz testified to case-specific facts in violation of Sanchez. We accept this concession, and we conclude that the record indisputably demonstrates that Dela Cruz described the circumstances of some prior acts based on police reports, which were testimonial (Sanchez, supra, 63 Cal.4th at p. 694), rather than based on her personal knowledge. "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Such facts include those describing prior offenses introduced to show that a group is a criminal street gang and to show that individual defendants were members or associates of that gang. (Navarro, supra, 12 Cal.5th at pp. 311-312; People v. Valencia (2021) 11 Cal.5th 818, 839.)
Dela Cruz testified that she had obtained some of the information about defendants' associations with Triple Ls from "police reports," conversations with "other police officers," and "field identification cards."
Despite his concession, the Attorney General argues that the inadmissible testimony given by Dela Cruz was insignificant because it was "not necessary" due to the presence of admissible evidence demonstrating that Triple Ls was a criminal street gang and that defendants were members or associates of Triple Ls. He contends the only Sanchez errors occurred when "Dela Cruz briefly related the facts underlying the convictions and adjudications." He notes that Dela Cruz properly testified to background information about Triple Ls and properly testified based on the contents of admissible documentary evidence of certain prior convictions and juvenile adjudications.
Defendants contend that Dela Cruz's testimony reciting hearsay basis evidence in violation of their Sixth Amendment rights was prejudicial as to not only the gang enhancement and special circumstance allegations but also as to the substantive offenses. We agree with defendants' framing of the relevant inquiry.
The trial court's limiting instruction did not restrict evidence of "gang activity" to the gang enhancement and special circumstance allegations but instead permitted the jury to use Dela Cruz's inadmissible testimony to show defendants' intent, purpose, knowledge, and motive in committing the substantive offenses. Therefore, we must consider not only whether this error was prejudicial as to the gang enhancement and special circumstance allegations but also whether this testimony could have influenced the jury's determinations on the substantive counts. (See People v. Ramos (2023) 90 Cal.App.5th 578, 581 [considering whether outcome on substantive counts was influenced by admission of evidence of gang predicates]; People v. Ramirez (2022) 13 Cal.5th 997, 1101 [considering whether Sanchez error was prejudicial on substantive counts].)
Whether the Sixth Amendment violations were prejudicial is not resolved, as the Attorney General seems to suggest, by looking at whether there was substantial admissible evidence of the requisite pattern of criminal activity or of defendants' gang membership. The prejudice inquiry depends on whether the Attorney General has met his burden of establishing that the inadmissible evidence played no significant role in the jury's determinations on the counts and allegations before it.
"We review violations of the confrontation clause for harmless error using the Chapman standard. [Citation.] 'A violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict obtained.' [Citation.] '" 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record'" '" (People v. Garcia (2020) 46 Cal.App.5th 123, 178-179.) "[T]o say that [the error] did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error]." (Yates, supra, 500 U.S. at pp. 403-404.)
Our analysis begins with the foundational principle that the Attorney General bears the burden of proving "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) Reversal is required unless the Attorney General establishes that there is no "reasonable possibility that the evidence complained of might have contributed to the conviction.'" (Id. at p. 23.) "This test is exacting, and it requires much of a reviewing court. '[S]afeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error[,] . . . it should not find the error harmless.'" (In re Lopez (2023) 14 Cal.4th 562, 581.) Such an inquiry is not satisfied by simply declaring the evidence "overwhelming." (Id. at p. 568.)
As this error did not affect each defendant equally, our prejudice inquiry requires us to consider them separately. We begin with Ayala and Valdez.
The evidence that Ayala and Valdez stabbed and beat Medina to death was strong. Nevertheless, we decide that the Attorney General has not satisfied his burden of proving that Dela Cruz's inadmissible testimony did not contribute to the convictions of Ayala and Valdez for first degree murder. We reach this conclusion because the evidence of premeditation and deliberation was based almost entirely on the conduct of Triple Ls generally and Ayala's and Valdez's past violence on behalf of the gang. The evidence on these latter points rested in significant part on Dela Cruz's inadmissible testimony in violation of the Sixth Amendment.
We first consider the evidence against Ayala and Valdez as to the charged offenses. Chavoya testified that he saw Valdez hitting Medina with a bat and Ayala stabbing Medina. Jose Castro gave similar testimony. Roman told the police the same. But their identity as the perpetrators of the killing did not depend solely on these three witnesses, each of whom was heavily impeached.
Other witnesses identified Valdez, who was wearing a distinctive Michael Vick Atlanta Falcons jersey that night, as the person seen hitting Medina with a bat, and Medina's blood was found on his Michael Vick jersey. Hortia identified Ayala as one of the men who assaulted Medina. If the only question was whether the inadmissible evidence influenced the jury in determining the identity of the perpetrators of the killing, the prejudice inquiry would be relatively simple. But the premeditation and deliberation element of the first degree murder count (and the only theory of first degree murder presented to the jury) depended on the criminal history of Ayala and Valdez, which was the subject of significant inadmissible testimony by Dela Cruz.
Before considering the taint attributable to Dela Cruz's inadmissible testimony about Ayala's and Valdez's prior criminal activity and involvement in Triple Ls criminal activity, we first consider the other evidence on those issues. Chavoya testified that Ayala was involved in three stabbings, Valdez was present at one stabbing, and Valdez participated in a robbery/shooting (an incident also described by other witnesses). Jose Castro testified that Ayala and Valdez were present at a shooting, that Ayala had participated in a stabbing, and that Valdez had participated in an assault. He also testified that Valdez was present at the same stabbing described by Chavoya and that Valdez was present during another gang altercation. Chavoya and Jose Castro associated all of these crimes with Triple Ls. The only documentary evidence of prior crimes committed by Ayala or Valdez was Ayala's juvenile adjudications for bringing a knife to school and for assault and battery at school and Valdez's juvenile adjudication for bringing a knife to school.
Dela Cruz's inadmissible testimony provided critical corroboration for the testimony of Chavoya and Jose Castro, who, as already noted, were accomplices and heavily impeached. Dela Cruz's inadmissible testimony provided further evidence of the strength and duration of Ayala's and Valdez's associations with Triple Ls. She testified, based on hearsay, that Ayala had been "found in the company" of Triple Ls gang members "on a number of occasions." She provided a description of the facts of Ayala's 2005 battery adjudication, unambiguously describing it as a gang-motivated confrontation: "Ayala was confronted [by] two known Sure[n]o gang members -- I do know one of them, actually, personally -- an argument ensued. Words were exchanged. Ayala called them a 'scrap,' which is a derogatory term for Sure[n]os, and [Ayala] punched and kicked the victims and [Ayala] was charged in that case." Dela Cruz testified, based on hearsay, that Ayala had yelled" 'Norte life'" before the assault, and that he had claimed at that time to have been a Norteno gang member for two years.
Her inadmissible testimony about Valdez included her claim that "a reliable person that was a principal at Silver Creek High School [] said [Ayala] was a Triple L[s] gang member." Dela Cruz described for the jury in detail the lethal nature of the knife that Valdez had brought to school (leading to his juvenile adjudication) and asserted that he had "claim[ed] that [he had done so because] he couldn't find a pencil sharpener." Similarly, she described, based on hearsay, an incident in September 2006 during which she said Valdez and Chavoya, who had gone to a party intending "to crash the party," had been "brutally beaten" by "some very large football players at the party."
While Dela Cruz's inadmissible testimony about Ayala's and Valdez's prior crimes and associations with Triple Ls was not the only evidence of such crimes and associations, it not only served to corroborate the compromised testimony of Chavoya and Jose Castro, but also was highlighted by the prosecutor in his arguments to the jury, during which he relied on her inadmissible testimony about Valdez's prior juvenile adjudication and about Valdez's 2006 beating.
We cannot conclude that Dela Cruz's inadmissible testimony about Ayala and Valdez was harmless beyond a reasonable doubt. While there was very strong evidence that Ayala and Valdez killed Medina, the evidence of premeditation and deliberation was much weaker and dependent on inferences related to their prior Triple Ls activity. Indeed, as our analysis of their challenges to the sufficiency of the evidence of premeditation demonstrates, their prior Triple Ls activity was essential to support a finding of premeditation. Because Dela Cruz's inadmissible testimony corroborated the testimony of Chavoya and Jose Castro about the prior acts of Ayala and Valdez, which was critical to establishing that they deliberated and premeditated before killing Medina, we cannot find the erroneous admission of Dela Cruz's testimony to be harmless.
Because we have concluded prejudicial error occurred, we must vacate Ayala's and Valdez's convictions for first degree murder. However, as this error was prejudicial only as to the premeditation and deliberation element of the first degree murder counts, the prosecution may elect to accept a reduction to second degree murder as to Ayala and Valdez or to retry the first degree murder counts. (People v. Kelly (1992) 1 Cal.4th 495, 528 ["When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense."].)
The Attorney General does not specifically address whether this Sixth Amendment error was prejudicial as to the assault with a deadly weapon and battery counts against Ayala and Valdez. We reach a different conclusion as to prejudice with respect to those convictions.
We see no possibility that Dela Cruz's inadmissible testimony played a role in the jury's determinations that Valdez wielded the bat and Ayala the knife in the attack on Medina, which was testified to by a number of witnesses, including Roman Razo. Nor do we see any possibility that Dela Cruz's inadmissible testimony played any role in the jury's determinations that those who joined Valdez and Ayala in these assaults committed the other counts and that those assaults and battery were reasonably foreseeable consequences of the attack on Medina by Valdez and Ayala with deadly weapons. We therefore conclude that the error was not prejudicial as to the assault with a deadly weapon and battery counts for Valdez and Ayala.
We next address whether Dela Cruz's inadmissible testimony was prejudicial as to Cabrera, Razo, Zamora, and Garcia with respect to the assault with a deadly weapon and battery counts. Our assessment of the impact of the inadmissible testimony in light of the other evidence is necessarily informed by the way that the prosecution presented the case to the jury. The prosecutor acknowledged in his argument to the jury that the evidence tying Cabrera, Razo, Zamora, and Garcia to the specific substantive counts was "murky." The victims could not identify their assailants at the scene. Due to this ambiguity in the witness testimony, the prosecution relied extensively on these four defendants' prior acts and affiliation with Triple Ls, the testimony of Chavoya and Jose Castro, and the prior statements of Roman Razo. Dela Cruz's testimony played an important role in establishing the guilt of Cabrera, Razo, Zamora, and Garcia because her testimony was not so easily impeached. It is in this context that we must consider whether the inadmissible testimony by Dela Cruz could have compromised the integrity of the evidence implicating these four defendants in the assault with a deadly weapon and battery offenses.
We begin with the testimony of Chavoya. Chavoya testified that Garcia told Chavoya" '[g]et ready'" shortly before the altercation began. He also testified that he saw Cabrera running towards the fight, and Zamora and Garcia near Hortia and the Jacquezes. Chavoya also recounted Razo's statement to Ayala after the attack complaining that he" 'got guts all over my hands'" from Ayala stabbing Medina. Chavoya told the police that Cabrera had admitted to Chavoya that he" 'hit a dude with a bottle,'" and he told the police that Garcia had admitted that he "punched one of the dudes." This was critical evidence against these four defendants. However, Chavoya was heavily impeached with evidence of his prior inconsistent statements and his own criminal history and involvement in the attack. He was further impeached with the incentive he might have had to implicate defendants as a result of his plea agreement.
Jose Castro testified that Zamora was involved in the initial confrontation between Garcia and Hortia and that Zamora was the first person to strike Medina. Jose Castro also testified that Zamora and Cabrera surrounded Medina and that Cabrera was hitting Medina. Thus, Jose Castro provided critical evidence against three of these four defendants. Nevertheless, Jose Castro's testimony, like Chavoya's, was seriously impeached with evidence of his prior inconsistent statements and prior crimes, his own participation in the attack, and his incentive to implicate defendants due to his plea agreement.
Roman Razo, the third important witness against these defendants, testified at trial that he could not remember anything at all, even denying any memory of speaking with the police. The evidence he provided against these defendants came in solely through his prior statements to the police. Roman told the police he had seen Garcia and another man pull Medina "to the side" before the attack began, start talking to him, and then start hitting Medina. He told the police that he had seen Zamora in the fight near Medina, punching Medina. Roman told the police that he had seen Razo hit a short, chubby guy a couple of times and Garcia punching and kicking Medina. Roman said that Cabrera was also "th[r]owing blows" at someone other than Medina. The credibility of Roman's prior statements was strongly challenged with his testimony disavowing his prior statements, his prior inconsistent statements, and evidence of his lack of memory and alleged mental health condition at the time of his statements.
The testimony of other witnesses, statements to the police, and physical evidence also implicated three of these four defendants in the attack. Zamora was identified as having been among those surrounding Medina and having intimidated individuals trying to help the victims. Medina's blood and Cabrera's DNA were found on a red 49ers Jerry Rice football jersey that Cabrera had been seen wearing at the party. Razo admitted to the police that he had hit someone four times during the altercation.
Because the prosecutor conceded that the evidence was "murky" with respect to the role that each of these four defendants played in the attack, he premised his case on the liability of "the Triple Ls" generally for all aspects of the attack. He argued to the jury: "[T]he Triple Ls were responsible for this.... [T]he defendants were there, all of them were there. Each defendant was there during the fight." Although the prosecutor contended that Garcia had started the fight, he did not attempt to argue that any one of these four defendants had been the actual perpetrator of any one of the substantive counts.
Instead, the prosecutor related to the jury: "The evidence is going to be Triple L gang members were the perpetrators. I'm not going to stand up here and argue to you who exactly did it. I am going to argue to you, without any doubt, these were Triple L[s] gang members who did it."
The prosecutor relied on the natural and probable consequences theory as to the assaults and battery and argued that defendants were all guilty of these offenses because it was "a Triple L[s] attack." The prosecutor argued: "There's evidence about who committed the murder[, Ayala and Valdez]. It becomes more murky about who committed these other assaults. But what's very certain is this was a gang attack, and that those assaults, those attacks on everybody were foreseeable. They were natural and probable."
The prosecutor's theory that all defendants were responsible for the crimes because they were Triple Ls members and were at the party was founded on evidence of defendants' prior acts and their associations with prior Triple Ls activities. He sought to demonstrate either that they intended to aid and abet assaults with deadly weapons or that assaults with deadly weapons were natural and probable consequences of simple assaults that they aided and abetted. Evidence of each defendant's prior acts associated with Triple Ls was an important part of the prosecution's case on this point. This evidence of prior acts came from four sources: Chavoya, Jose Castro, documentary evidence of prior convictions and prior juvenile adjudications, and Dela Cruz's testimony.
The question we must resolve is whether Dela Cruz's inadmissible testimony played any significant role in supplementing the other testimony and documentary evidence as to these four defendants. Chavoya and Jose Castro did not describe prior crimes committed by anyone other than Ayala and Valdez, though Jose Castro testified that Razo and Cabrera were present during one prior gang altercation. The prosecution introduced documentary evidence of prior acts committed by several defendants, though none of the documents linked the prior acts to Triple Ls and most of the documents did not disclose any information indicating that the acts were gang-related. Cabrera had been convicted of first degree burglary in 2005. None of the documents establishing this conviction described the facts of the offense or reflected that it was gang-related. Zamora had been convicted of aggravated assault with an ice pick with a gang allegation in 1997. The documentary evidence did not link that offense to Triple Ls. In 2002, Garcia had admitted a juvenile allegation of aggravated assault with a gang enhancement and juvenile allegations of bringing a knife and a pellet gun to school. In 2006, Garcia pleaded no contest to felony false imprisonment for his involvement in an incident that led to one of his coparticipants pleading no contest to one count of aggravated assault. Although gang allegations were alleged, none were admitted. The documents did not describe any of the conduct Garcia admitted or link these offenses to Triple Ls.
Much of Dela Cruz's testimony about Cabrera's, Razo's, Zamora's, and Garcia's involvement in Triple Ls was admissible and did not constitute testimonial hearsay. She testified about the results of the investigation after the charged offenses. Triple Ls gang paraphernalia was found in the residences of Garcia, Razo, and Cabrera. Razo and Cabrera had Triple Ls tattoos. There were numerous photos of each of these defendants posed with other Triple Ls gang members, sometimes making Triple Ls gang signs. Several of them were wearing Triple Ls gang paraphernalia at the party.
Our task is to measure the impact of Dela Cruz's inadmissible testimony about these defendants' prior acts and prior gang activity in the context of all of the other evidence of their guilt. Our close examination of her inadmissible testimony concerning Cabrera, Razo, Zamora, and Garcia leads us to conclude that the error in admitting that testimony was harmless beyond a reasonable doubt.
In addition to her hearsay testimony about defendants' prior acts, Dela Cruz also gave hearsay testimony about a "predicate" that had occurred in March 2007 "on Van Winkle" that did not involve any defendant. A party was interrupted by someone firing a gun, and one of the partygoers was assaulted with a deadly weapon by Triple Ls gang members. She testified, based on a "report," that a Triple Ls gang member was convicted of aggravated assault based on this incident. Because that predicate did not involve any defendant, we do not see any significant prejudice from it with regard to their guilt on the substantive counts.
Because we are reversing Estrada's only conviction for other reasons, we need not consider whether this error was prejudicial as to him.
We begin with Garcia, as Dela Cruz's inadmissible testimony about Garcia was the most extensive. Her hearsay testimony (over a defense hearsay objection) detailing the facts underlying Garcia's conviction for false imprisonment explicitly linked that incident to collective action by Triple Ls members in severely beating the victim with a bat. Her hearsay testimony about the facts underlying Garcia's 2002 juvenile adjudication for aggravated assault identified that offense as "an assault at Brigadoon Park" by three Triple Ls members in September 2001. Dela Cruz testified, based on hearsay, that "gang clothing ha[d] been seized from [Garcia] in the past." (Italics added.) She testified that probation officers had "found gang paraphernalia" in "searches of [Garcia's] home," including in 2002. Dela Cruz described a 2004 incident during which Garcia was stopped by police while wearing gang paraphernalia, fled the police, and was "eventually" "arrested with a short-barreled shotgun." She testified that Garcia had been found at school in February 2005 wearing "a red jersey with No. 14 on it."
The documentary evidence did not identify the location of the assault.
While this inadmissible testimony about Garcia was extensive, there was significant admissible evidence that Garcia was heavily involved in Triple Ls. Furthermore, there was little risk that the jury's consideration of the assault with a deadly weapon and battery counts against Garcia might be influenced by this inadmissible testimony because Garcia's trial counsel essentially conceded that he was guilty of those counts. Garcia's trial counsel urged the jury to "[f]ind him responsible for the assault on Fernando Hortia." He argued to the jury: "Hold him responsible for the assault on Fernando Hortia, and if you find justice demands, to hold him responsible for any other assaults, so be it, but do not hold him responsible for the murder because he didn't do it under any theory." Since Garcia conceded that he had assaulted Hortia, his guilt on the charged assault with a deadly weapon and battery counts was virtually compelled under the natural and probable consequences doctrine. There was no real dispute that the assault on Hortia was part of an assault by multiple perpetrators who also assaulted the Jacquezes. We decide that the evidence establishes beyond a reasonable doubt that the Sixth Amendment error was not prejudicial as to Garcia.
Dela Cruz's inadmissible testimony concerning Cabrera and Zamora was minimal. She testified that Cabrera's "stepmother . . . believed he was a gang member." She also testified, based on a police report, that Cabrera had associated with Triple Ls gang members in February 2005 during "a carjacking incident." Her inadmissible testimony about Zamora was limited to the circumstances of Zamora's 1997 conviction, which she described as having occurred when Zamora was at school with Norteno gang members "looking for a perceived rival, Sure[n]o gang member, and the rival was stabbed by an ice pick." None of Dela Cruz's inadmissible testimony concerned Razo.
When Dela Cruz's inadmissible testimony about Cabrera and Zamora is considered in the context of the other evidence of their prior acts and associations with Triple Ls, it is clear that her inadmissible testimony did not play any significant role in the jury's determination that these defendants were guilty of the assault with a deadly weapon and battery counts. Cabrera had multiple Triple Ls gang tattoos, including a St. Louis Cardinals symbol, which is uniquely identified with Triple Ls (STL), on his chest, and "LLLS" on his shoulder. He was wearing a belt with an" 'L'" buckle when he was arrested. In light of this other admissible evidence, his stepmother's belief that he was a gang member and his presence with Triple Ls members on one occasion were of little import with respect to his allegiance to Triple Ls.
Dela Cruz's inadmissible testimony about Zamora did not associate him with Triple Ls at all but only with Nortenos. The admissible evidence associating him with Triple Ls was largely based on a recorded telephone conversation between him and Garcia's brother, Louie, a Triple Ls member, during which Zamora referred to himself as" 'straight OG,'" which even Zamora admitted meant original gangster. While the evidence associating Zamora with Triple Ls was not strong, Dela Cruz's inadmissible testimony did not strengthen it. Unlike some of the other defendants, Zamora was identified by witnesses as one of those aiding and abetting the assaults. In this context, we decide that Dela Cruz's inadmissible testimony concerning Zamora did not play any significant role in the jury's determination of his guilt on the assault with a deadly weapon and battery counts.
Dela Cruz's inadmissible testimony did not concern Razo at all. Razo's Triple Ls association was shown by the green bandanas (uniquely associated with Triple Ls) found in his home along with a belt with an" 'L'" buckle, and photos on his cell phone of him with other Triple Ls members making Triple Ls gang signs. Therefore, we decide beyond a reasonable doubt that Dela Cruz's inadmissible testimony had no influence on the jury's consideration of Razo's guilt on the assault with a deadly weapon and battery counts.
In summary, we conclude that Dela Cruz's testimony admitted in violation of the Sixth Amendment was prejudicial only as to Ayala and Valdez and only as to their first degree murder convictions (which, in turn, and under the jury instructions here, invalidates the attendant special circumstance findings (see People v. Cooper (1991) 53 Cal.3d 771, 828 ["a first degree murder conviction is a prerequisite to any special circumstance"])). It was not prejudicial as to any defendant on their convictions for assault with a deadly weapon and battery. We do not consider the effect of this inadmissible evidence on the second degree murder convictions, as we have already determined those convictions must be vacated due to the changes to murder law effectuated by Senate Bill Nos. 1437 and 775.
X. ASSEMBLY BILL NO. 333
Defendants make two contentions concerning statutory changes made by Assembly Bill No. 333 (2021-2022 Reg. Sess.). They argue that all of the gang enhancements are invalid because the amendments to section 186.22 made by Assembly Bill No. 333, which changed the elements of the gang enhancement, are retroactive, and the Attorney General cannot prove beyond a reasonable doubt that application of the amended statute would not have led to a different outcome on the gang enhancements. They further contend that section 1109, which was enacted by Assembly Bill No. 333, is also retroactive and establishes that the trial court prejudicially erred in failing to bifurcate the gang enhancements. We agree with their first argument but not their second.
Our Supreme Court has summarized the effect of Assembly Bill No. 333. "In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which became effective on January 1, 2022 (see Stats. 2021, ch. 699). Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).) [¶] Finally, Assembly Bill 333 added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. If the proceedings are bifurcated, the truth of the gang enhancement may be determined only after a trier of fact finds the defendant guilty of the underlying offense." (People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).)
A. Amendments to Section 186.22
In Tran, as here, the Attorney General conceded that the changes to the elements of the gang enhancement were retroactive, and the California Supreme Court agreed. (Tran, supra, 13 Cal.5th at pp. 1206-1207.)" 'Assembly Bill [No.] 333 essentially adds new elements to the substantive offense and enhancements in section 186.22 - for example, by requiring proof that gang members "collectively engage" in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang ....' [Citations.] These changes have the effect of 'increas[ing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement,' with obvious benefit to defendants like Tran. [Citation.] [¶] When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant's right to a jury trial under the Sixth Amendment, and reversal is required unless 'it appears beyond a reasonable doubt' that the jury verdict would have been the same in the absence of the error." (Id. at p. 1207.)
In defendants' trial, the jury was not instructed on the elements of the gang enhancement as amended by Assembly Bill No. 333 because those changes had not yet become law. Of particular importance, the jury was not instructed that the benefit to the gang must be "more than reputational." (§ 186.22, subd. (g).) In fact, the jury was instructed that the predicate offenses "that establish a pattern of criminal gang activity[] need not be gang-related." Furthermore, Dela Cruz's trial testimony linked the benefit to Triple Ls to reputational benefits. She testified: "It benefits the gang. It shows the party-goers or the neighborhood that this is who we are. We are Norte[n]o gangs. With the green [bandanas that some Triple Ls members were wearing at the party], they show that they're Triple L[s] gang members. And what it does is it shows that we are coming in numbers and that we're very powerful. When they show the power, they also build up their reputation as being a very powerful gang, and for gang membership, that's very important to be a powerful gang." (Italics added.) Similarly, the prosecutor argued to the jury that the commission of the charged offenses "was helping them make a name for themselves and it's a benefit. This gang wanted to be well- known and were active in patrolling that park and active in showing off how tough they were."
The Attorney General argues that the error was harmless because "the evidence established that [some of the predicate crimes] commonly benefited Triple L[s] in a way that was more than reputational." He ignores that the "more than reputational" requirement applies not only to the predicates but also to the current offenses. The Attorney General's argument also fails to demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.)
"When a jury instruction has omitted an element of an offense, our task 'is to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." '" (People v. Cooper (2023) 14 Cal.5th 735, 742-743.) On this record, we are not persuaded beyond a reasonable doubt that the jury's findings on the gang enhancement allegations would have been the same if it had been instructed that the requisite benefit to Triple Ls had to be "more than reputational." Dela Cruz testified that benefit was reputational, and the prosecutor's argument to the jury also relied on reputational benefits to Triple Ls. Accordingly, we decide the gang enhancement findings must be vacated and remanded for possible retrial.
We need not consider whether the amendments to section 186.22 apply to the special circumstance allegations attached to the first degree murder counts (§ 190.2, subd. (a)(22)) because we have already determined that the jury's findings on those allegations must be vacated due to the erroneous admission of hearsay basis evidence in violation of the Sixth Amendment rights of Ayala and Valdez. An issue regarding Assembly Bill No. 333's application to the gang murder special circumstance is currently pending in the California Supreme Court in People v. Rojas (2022) 80 Cal.App.5th 542, review granted October 19, 2022, S275835.
B. Section 1109: Failure to Bifurcate Gang Allegations
Defendants contend that section 1109 applies retroactively and establishes that the trial court prejudicially erred in refusing to bifurcate the trial of the substantive offenses from the trial of the gang enhancement allegations.
Section 1109 provides, in relevant part: "(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of [s]ection 186.22 shall be tried in separate phases as follows: [¶] (1) The question of the defendant's guilt of the underlying offense shall be first determined. [¶] (2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of [s]ection 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement." (§ 1109, subd. (a).) Section 1109 does not contain any requirement that a gang murder special circumstance allegation be bifurcated. (§ 190.2, subd. (a)(22.) Section 190.1, subdivision (a) requires that special circumstances be tried "at the same time" as the trial on the murder count to which the special circumstance is attached.
1. Background
Ayala sought bifurcation of the special circumstance allegation. The prosecutor asserted that the special circumstance allegation was statutorily precluded from being bifurcated. He also noted that "it would be a huge waste of time to relitigate whether the special circumstance is true, because the facts and circumstances related to the special circumstance are intertwined with the charge itself." The court denied the request.
Defendants sought bifurcation of the gang enhancement allegations. They claimed that "this case can be tried to the jury as to guilt or innocence without getting into all the gang material." They noted the "prejudicial effect that would bleed over to the underlying charges." While defendants acknowledged that "motive evidence is appropriate," and "certainly some evidence will come in in terms of Los Latinos Locos, the motive," they maintained that the "scope of the evidence . . . expands immensely" when the gang enhancements are being tried in a joint trial. "[E]vidence about LLL doing certain things at parties, that might be more relevant to motive," but the evidence introduced to prove the gang enhancements would be far broader.
The prosecutor contended that bifurcation was not warranted because the evidence required to prove the murder and the evidence required to prove the gang enhancement allegations were intertwined. He argued that gang evidence would come in regardless of bifurcation to show identity, motive, the manner of commission of the crime, concealment of the crime, and to prove the special circumstance allegations against Ayala and Valdez. The prosecutor contended that "there's going to be evidence that comes in, whether or not there's a bifurcation, about the gang-relatedness of the crime." He asserted that gang evidence would be relevant to show the identity of the attackers. "[I]t's going to explain the motive as well as how the crime was committed. Without the gang evidence, this crime seems absolutely senseless." He argued that the gang evidence would explain why the location of the party was important and why that supplied the motivation for the crimes. "[T]he turf, motive, identity, are all things that are evident in this case and going to come into evidence with or without the gang enhancement. [¶] But this case goes even further because there are special circumstance allegations that have to be proved, and those circumstance - - those special circumstance allegations are going to require the introduction of gang evidence as to Defendants Valdez and Ayala. So that evidence is coming in anyway in this case."
The trial court found that, even if the gang enhancements were bifurcated, gang evidence would be admitted on the substantive offenses to prove the special circumstances and to show a motive for the crimes. It denied the bifurcation motion.
2. Analysis
In Tran, the California Supreme Court stated: "The question of whether section 1109 applies retroactively is the subject of a split of authority among the Courts of Appeal. [Citations.] We decline to resolve this split here because we conclude that any asserted error in failing to bifurcate was harmless." (Tran, supra, 13 Cal.5th at p. 1208.) The court rejected Tran's argument that the alleged error was structural or subject to Chapman review. (Id. at pp. 1208-1209.) Instead, it held that the appropriate standard of review was under People v. Watson (1956) 46 Cal.2d 818. (Tran, at p. 1209.) "Under Watson, a reviewing court must reverse if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] '" 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" '" (People v. Hendrix (2022) 13 Cal.5th 933, 944.)
We decline to resolve the retroactivity issue because, in this case, we see no "reasonable chance" that the outcome would have been different even if section 1109 applied retroactively. Section 1109 does not apply to special circumstance allegations (§§ 190.1, subd. (a), 1109), so the prosecution would still have needed to prove at the trial of the substantive offenses that Triple Ls was a criminal street gang. Consequently, even if the gang enhancement allegations had been bifurcated, the trial of the substantive offenses and the special circumstances allegations would have required the admission of much of the gang evidence, including all of the predicates and all of the evidence necessary to establish the primary activities of Triple Ls. While the gang affiliation evidence of those other than Ayala and Valdez would not necessarily have been necessary to prove the special circumstance allegations, it nevertheless would have been admissible to prove the motive for the substantive offenses, which on the prosecution's theory of the case depended entirely on defendants' gang affiliation. We decide that, on this record, the trial court's failure to bifurcate the gang allegations was harmless.
The issue of whether section 1109 is retroactive is currently pending in the California Supreme Court in People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743.
XI. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendants contend that, if we conclude that any appellate contention was forfeited by a failure to object below, their trial counsel were prejudicially deficient. As we have not deemed any appellate contention to have been forfeited by trial counsel, we need not address this contention.
XII. INTERFERENCE WITH RIGHT TO COUNSEL
Valdez contends that the trial court violated his rights to counsel and due process by requiring defendants' trial counsel "to sift the investigatory materials and identify the evidence most harmful to their clients and the best theories of its admissibility," which forced them to serve as "assistants to the prosecutor."
Valdez misreads the trial court proceedings on this point. Defendants sought exclusion of all of the prior bad acts that Chavoya and Jose Castro had disclosed to the police. The trial court noted that some of those bad acts (such as the Pettigrew homicide) had already been ruled admissible, and it refused to make a "blanket ruling" that Chavoya and Jose Castro could not testify to any prior bad acts. However, the court expressed its willingness to rule on what it understood to be defendants' request for a ruling "limiting prior bad acts in the statements of [Jose] Castro and Chavoya." The court explained that it could not rule on that request unless defendants identified the prior bad acts they wished to have excluded. The court noted the absence of any document "listing a summary of prior bad acts."
The court told Garcia's trial counsel: "I just want you to identify the prior bad acts so that I can have those in mind when I consider the motion." Trial counsel responded that the prosecutor had not identified which prior bad acts disclosed to the police by Chavoya and Jose Castro he intended to introduce. The court replied that the prosecutor was not required to "pre-try his case by giving you the list" of prior bad acts that he intended to introduce. Garcia's trial counsel told the court that she would prepare "a comprehensive document of what I view are prior bad acts" that Chavoya and Castro identified in their police interviews. "I think that will be helpful for the court." She prepared and submitted to the court documents listing all of the prior bad acts that had been disclosed to the police by Chavoya and Jose Castro.
We do not agree with Valdez's claim that the court infringed on his right to counsel. The court did not order defendants' trial counsel to produce a document listing all of the prior bad acts disclosed by Chavoya and Jose Castro. After the court refused to grant the request by defendants for a blanket ruling precluding Chavoya and Jose Castro from testifying to any prior bad acts, the court explained that it could not rule on the defense motion to impose general limitations on prior bad act evidence coming in through Chavoya and Jose Castro without knowing the scope of the prior bad act evidence. The trial court understood the defense motions to be based on Evidence Code section 352, which would necessarily obligate the court to consider whether the evidence would be cumulative, probative, prejudicial, or unduly time-consuming. None of these determinations could be made in the abstract.
We reject Valdez's contention that the trial court forced the defense to assist the prosecutor. To object to admission of the testimony, defense counsel could have identified specific prior bad acts and individually challenged evidence of those acts as unduly prejudicial in advance of the testimony of Chavoya and Jose Castro. Alternatively, they could have addressed the cumulative or time-consuming nature of the prior bad acts evidence during the testimony of Chavoya and Jose Castro by making individualized objections.
That defense counsel chose to prepare documents listing all of the prior bad acts was a reasonable strategic choice, but it was not one that was forced upon them by the trial court. We reject Valdez's claim that the trial court infringed on his right to counsel.
XIII. CUMULATIVE PREJUDICE
Defendants contend that even if the individual errors that we identify were not singularly prejudicial, they were cumulatively prejudicial.
" 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." '" (People v. Poletti (2015) 240 Cal.App.4th 1191, 1217.) We have identified two nonprejudicial errors, assumed one nonprejudicial error, and suggested that one alleged error was not prejudicial in this case. The trial court erred in giving the special natural and probable consequences instruction, but this error was not prejudicial. It also erred in admitting hearsay basis evidence, which was not prejudicial as to the assault with a deadly weapon and battery counts. We conclude that even if the failure to include Martinez in the accomplice instructions was erroneous, it was not prejudicial because no rational jury would have found that she was an accomplice. We assume arguendo that the court erred in failing to bifurcate the gang enhancement allegations, but the alleged error was not prejudicial.
Having carefully reviewed the voluminous record, we decide that these errors and assumed errors are not cumulatively prejudicial. These independent and unrelated nonprejudicial errors did not combine synergistically to create prejudicial error.
XIV. PROPOSITION 57
Ayala, Valdez, and Razo were juveniles when the charged offenses occurred. Under Proposition 57, which took effect in 2016 and is retroactive for cases not yet final on appeal, a juvenile may not be tried as an adult unless the juvenile court has conducted a transfer hearing and determined that the juvenile should be transferred from juvenile court to adult criminal court. (Welf. & Inst. Code, § 707, subd. (a)(1); see People v. Castillero (2019) 33 Cal.App.5th 393, 398.) Ayala, Valdez, and Razo request that, upon remand, their cases be transferred to juvenile court for the required transfer hearings. The Attorney General concedes the merit of their contentions.
We accept the concession and will direct the trial court to transfer this matter as to Ayala, Valdez, and Razo to the juvenile court for transfer hearings upon remand prior to any retrial. (Welf. & Inst. Code, § 707; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) "If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (Ibid.)
XV. SUMMARY OF CONCLUSIONS
We decide the following:
Ayala's conviction for first degree murder is vacated along with the special circumstance finding. He must be remanded to juvenile court for a transfer hearing. The prosecution may elect to accept a reduction of the first degree murder conviction to second degree murder. His convictions for assault with a deadly weapon and battery remain undisturbed, but the gang enhancement findings are vacated.
Valdez's conviction for first degree murder is vacated along with the special circumstance finding. He must be remanded to juvenile court for a transfer hearing. The prosecution may elect to accept a reduction of the first degree murder conviction to second degree murder. His convictions for assault with a deadly weapon and battery remain undisturbed, but the gang enhancement findings are vacated.
Cabrera's conviction for second degree murder and the accompanying gang enhancement finding are vacated. The assault with a deadly weapon and battery convictions remain undisturbed, but the gang enhancement findings are vacated.
Garcia's conviction for second degree murder and the accompanying gang enhancement finding are vacated. The assault with a deadly weapon and battery convictions remain undisturbed, but the gang enhancement findings are vacated.
Razo's conviction for second degree murder and the accompanying gang enhancement finding are vacated. The assault with a deadly weapon and battery convictions remain undisturbed, but the gang enhancement findings are vacated. Razo shall be remanded to the juvenile court for a transfer hearing.
Zamora's conviction for second degree murder and the accompanying gang enhancement finding are vacated. The assault with a deadly weapon and battery convictions remain undisturbed, but the gang enhancement findings are vacated.
Estrada's conviction for second degree murder and the accompanying gang enhancement finding are vacated.
All vacated counts and allegations may be retried.
XVI. DISPOSITION
The judgments against all defendants are reversed. On remand, the trial court shall vacate the murder convictions and the findings on the special circumstance and gang enhancement allegations.
Because we reverse all of the judgments, we do not address any of the sentencing issues raised by defendants on appeal.
The court shall remand Ayala, Valdez, and Razo to the juvenile court for transfer hearings. If any of them are retained in juvenile court, the juvenile court shall conduct any further adjudicative or dispositional proceedings.
The prosecution may elect to accept a reduction of the first degree murder convictions of Ayala and Valdez to second degree murder in lieu of retrying those counts in juvenile court or, if they are transferred, in adult criminal court. If the prosecutor makes such an election as to the murder counts against Ayala and Valdez and elects not to retry the gang enhancements against them: (1) if Ayala and/or Valdez is transferred to adult criminal court, the court shall resentence that defendant on the second degree murder, assault with a deadly weapon, and battery counts; and (2) if Ayala and/or Valdez is retained in juvenile court, the juvenile court shall dispose of these counts as to that defendant.
If the prosecutor elects not to retry Razo on the murder count and the gang enhancements, and he is transferred to adult criminal court, he shall be resentenced on the assault with a deadly weapon and battery counts. If Razo is retained in juvenile court, the juvenile court shall dispose of those counts.
If the prosecutor elects not to retry Garcia, Cabrera, or Zamora on the murder count and the gang enhancements, they shall be resentenced by the court on the assault with a deadly weapon and battery counts.
If the prosecutor elects not to retry Estrada on the murder count and the gang enhancement, the case against him shall be dismissed.
WE CONCUR: Greenwood, P.J., Wilson, J.