Opinion
F069372
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. DESI CARDENAS III, Defendant and Appellant.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle A. Newcomb, Daniel B. Bernstein and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF234736A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle A. Newcomb, Daniel B. Bernstein and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Desi Cardenas III was tried and convicted by jury of possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1); count 6). In addition, the jury found true a gang enhancement allegation (§ 186.22, subd. (b)). The jury deadlocked on the following charges: murder (§ 187, subd. (a); count 1), two counts of attempted murder (§§ 664, 187, subd. (a); counts 2 & 3), shooting at an inhabited dwelling (§ 246; count 4), and shooting at an occupied motor vehicle (§ 246; count 5).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
Following a retrial, defendant was convicted on all counts. The jury also found true two special circumstances alleging defendant committed the murder while he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)), and by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). As to all counts, the jury found true firearm use enhancements (§ 12022.53, subds. (c), (d)), and that defendant committed the underlying offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)). The jury also found defendant suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and he had served two prior prison terms (§ 667.5, subd. (b)).
Defendant was sentenced to state prison as follows: on count 1 (murder), life without parole (with both special circumstances applied), plus 25 years to life, plus six years; on count 2 (attempted murder), 39 years to life plus six years, consecutive to count 1; on count 3 (attempted murder), 39 years to life plus six years, consecutive to count 2; on count 4 (shooting at inhabited dwelling), 55 years to life plus six years, consecutive to count 3; on count 5 (shooting at occupied motor vehicle), 55 years to life plus six years, stayed pursuant to section 654; and on count 6 (firearm possession by a felon), a total of 10 years concurrent.
Defendant raises the following claims on appeal: (1) The trial court improperly denied him complete transcripts of his first trial, specifically, voir dire of the jury and opening and closing statements; (2) the trial court erred by sustaining objections to defendant's efforts to question the gang experts; (3) the trial court improperly denied defendant's request for a cautionary instruction regarding security measures; (4) the trial court erred by instructing the jury on contrived self-defense (CALCRIM No. 3472); (5) the trial court improperly instructed the jury that a participant to the crime was an accomplice as a matter of law, and the accomplice's testimony must therefore be corroborated by other evidence (CALCRIM Nos. 335, 708); (6) the trial court erred in instructing the jury on flight and suppression of evidence as consciousness of guilt (CALCRIM Nos. 371, 372); (6) the trial court erred by failing to define the term "in association with a criminal street gang" sua sponte; (7) the trial court improperly admitted testimonial hearsay through the prosecutor's gang expert; (8) the trial court erred in imposing a 30-year-to-life minimum parole term under count 1, which carries a sentence of life without the possibility of parole (LWOP); (9) the abstract of judgment must be corrected for clerical error; and (10) the prejudicial effect of these cumulative errors necessitates reversal.
We agree the abstract of judgment must be amended to correct a clerical error. We also agree that the trial court erred in imposing a 30-year-to-life minimum parole term on count 1. We otherwise affirm.
PROCEDURAL HISTORY
On June 12, 2013, the People filed a first amended information.
On June 19, 2013, a jury convicted defendant of possession of a firearm by a felon (count 6). The jury also found true an enhancement alleging defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)). The jury deadlocked on all remaining counts, and the trial court declared a mistrial on those counts. Defendant was retried on counts 1 through 5.
On November 20, 2013, the court granted defendant's motion to represent himself at the retrial.
Following a trial by jury in March and April 2014, defendant was convicted on all counts and the jury found true all special allegations and enhancements alleged.
FACTS
Prosecution's Case
The Shooting
On March 24, 2010, at about 3:00 p.m., Christopher Diaz, Danny Diaz, and Miguel Quintero encountered defendant and his companions, Vincent Hernandez and Anthony Cortez, at the Prince Market gas station in Visalia. Danny and his brother Christopher were members of the southern criminal street gang in Los Angeles (Sureños). Christopher was wearing a blue Los Angeles Dodgers baseball cap, paraphernalia commonly worn by southern gang members.
Defendant, Hernandez, and Cortez were members of the northern criminal street gang. Hernandez, or possibly defendant, was wearing a red hat, a color commonly worn by northern gang members. Hernandez testified the victims had been "talking shit" to defendant while they were at the gas station. He had seen or heard somebody say something to defendant, and Quintero may have thrown his hands or put his head out the window in a challenging manner.
Quintero and the Diaz brothers drove away in a gray or silver car. Christopher was driving, Danny was in the front passenger seat, and Quintero was in the backseat behind the driver. At defendant's direction, Hernandez began following Christopher's vehicle in his vehicle. Defendant was seated in the back right passenger seat and Cortez was in the front passenger seat.
Hernandez eventually caught up with and pulled alongside Christopher's vehicle. Defendant and his companions "thr[e]w a four" gang sign and yelled an expletive at Christopher and his companions. Quintero and the Diaz brothers responded by yelling expletives back and "thr[e]w a three" gang sign. Danny "flipped off" defendant.
Defendant fired approximately 10 shots, killing Christopher Diaz. One bullet fragment was found in the hallway of a home near the scene of the shooting.
Danny Diaz fled the scene because he had outstanding warrants for his arrest. He got a ride from a passing motorist, Deedee Carrasca, to his girlfriend's house.
Eyewitness Testimony
Alvino Lopez was driving near the time and location of the shooting. He testified Hernandez's vehicle pulled out of the Prince Market parking lot "pretty aggressively," cutting him off. When Lopez pulled up behind Hernandez's vehicle, Hernandez was checking his mirrors and looking around. Lopez had a bad feeling about the car, so he allowed the car to pull away from him. Shortly thereafter, he heard gunshots.
Jose Alvarez, another motorist, witnessed the shooting. Alvarez was in his truck with his work partner, Nicholas Estrada. Alvarez saw Hernandez's vehicle catch up to the victims' vehicle. Alvarez heard gunshots before he saw any shooting. After hearing a few gunshots, Alvarez heard and observed a second series of gunshots coming from Hernandez's vehicle.
Carrasca was driving with her infant daughter, her mother, and a man named Dale Castillo. She saw Christopher Diaz's vehicle swerve out of control to the side of the road and she stopped to help. Carrasca's mother got out of the car, and Carrasca agreed to give Danny Diaz a ride.
Danny appeared "very panicked and agitated." During the ride, he told Carrasca a car had been chasing him and that either he or his companions had a gun, but he threw the gun into a field. Danny stated there was a warrant for his arrest. He might have said he told his brother not to shoot, but Carrasca was not sure.
Following the shooting, defendant and his companions fled to the apartment of defendant's cousin, Martin Oviedo. Oviedo was a northern gang member. While at Oviedo's apartment, defendant, Hernandez, and Cortez appeared very nervous. Oviedo's wife overheard one of the men say on a cell phone that they were stuck inside. One man left through the back of the apartment. Oviedo's wife heard the other men discuss fleeing out the back door.
Physical Evidence
No firearms were recovered from the victim's car or from the area near the shooting. In the opinion of an examining ballistics expert, all 10 shell casings recovered from the scene of the shooting were fired from the same gun.
Gang Evidence
Officer Josh Pena, a sworn peace officer of 10 years, had been assigned to the gang suppression unit with the Visalia police department for four years. He testified as a gang expert for the prosecution.
Background Information on the Northern Gang
The prosecutor's theory of a criminal street gang focused on the existence of an overarching northern gang comprising multiple subsets in the Visalia area. The parties interchangeably referred to the gang as the northern gang or the Norteños.
Pena explained the structure of the northern gang in Visalia begins with five gangs, including the biggest subset, North Side Visa (NSV). In Visalia, various Norteño cliques or subsets associate with NSV, including: the North Side Visa Boys (NSVB), North Side Visa Youngsters (NSVY), the Mexican Gangster Boys (MGB), who also go by the Mexican Gang Bangers, and the North Side Varrio Locos (NSVL). All of these subsets or cliques belong to the northern gang, claim the color red, and use the number 14, which refers to the fourteenth letter in the alphabet, "N." Rivals of the northern gang include southern gang members (Sureños), the Oriental Troop, Crip gang members, and dropout gang members. Following a gang injunction in 2009, northern gang members have spread throughout the City of Visalia.
Pena described his involvement in a 2010 wiretap investigation called "Operation Street Sweeper." Pursuant to the operation, he learned northern gang subsets and cliques in Visalia work together in forming hit squads, which are groups comprising northern gang members who commit shootings and home invasions, and who collect debts owed to the gang. The money side of the hit squads brings in profits for the Norteño gang by perpetrating burglaries, auto thefts, prostitution, and narcotic sales. The security side of the gang comprises hit squads that follow orders from a squad leader and an assistant squad leader. According to Pena, "NSV, NSVY, MGB, ... all work together when it comes to hit squads." "It doesn't matter if you're a North Side Visa Boy, you could still be on the [same] squad ... [as] North Side Visa Youngsters."
Primary Activities and Predicate Offenses
The jury was instructed that the primary activities of the gang include: assault with a deadly weapon, shooting at an inhabited dwelling, shooting from a motor vehicle, and attempted murder or murder. Pena testified he has come across over 75 northern gang members within the City of Visalia who were in possession of firearms, and this activity is "a common trend with northern gang members." Pena also described "an increase of gang violence with the northerners" in 2010, which consisted of "a lot of shootings" conducted by squad members and nonsquad members. To show the Visalia-area Norteños have engaged in a pattern of criminal activity, Pena adduced evidence of two predicate offenses.
Evidence of Gang Membership
Defendant
Based on defendant's contacts with other known northern gang members, his gang tattoos, and his prior contacts with police, Pena opined defendant was an active NSV Norteño gang member during the time of the shooting.
Pena testified defendant's cell phone contained the names of no less than six northern gang members, several of whom appeared to be high-ranking members of Norteño hit squads. These contacts included: Daniel Hanson (Fluffy) and "Hormiga," prior squad leaders, Joe Dominguez (Heavy D), who was in charge of security, Jonas Martinez (Pistolero), formerly in charge of security for the gang, Anthony Nanez (Buddha), and Alex Cervantes (Big Nasty).
Pena also testified defendant had multiple tattoos associated with the northern gang, including an "X4" on his hand, a Huelga bird tattooed on his left wrist, and four dots on his left fingers, his left thumb, and around his left eye. Pena described five prior contacts defendant had with law enforcement wherein defendant was documented wearing red or he self-admitted to being an active gang member.
Vincent Hernandez and Anthony Cortez
Pena also opined both Hernandez and Cortez were active Norteño gang members. Pena had not personally contacted Hernandez on prior occasions, but he had previously contacted Cortez.
In exchange for a term of 40 years in prison, Hernandez agreed to testify at trial. Hernandez self-admitted to being a northerner at the time of the shooting. He claimed he had been a northerner for the past 11 years, and admitted he was educated as to some of the bylaws and guidelines of the northern gang. Hernandez also identified defendant and Anthony Cortez as northerners.
Christopher Diaz, Danny Diaz, and Miguel Quintero
Danny testified he and his brother Christopher were both members of the southern gang. He stated Christopher was wearing a blue Los Angeles Dodgers cap on the day of the shooting, signifying his membership in a southern gang. Police found a CD case in Christopher's car with southern gang indicia written on it. According to Danny, defendant began throwing gang signs at him and his companions, and Danny, Christopher, and Quintero responded by throwing gang signs back.
Opinion the Shooting was Gang Related
Based on a hypothetical mirroring the facts of the instant case, Pena opined defendant committed the shooting for the benefit of and in association with the Norteños. Pena testified a shooting or murder of a rival gang member would benefit the Visalia-area Norteños by enhancing the gang's reputation for violence. Such an act would intimidate rival gang members and the community. Pena further opined the shooting was also committed in association with the Norteños because it was committed in the company of two other active Norteño gang members.
Defense's Case
Based on various hypotheticals he posed to the gang experts, defendant attempted to show he had shot Christopher Diaz after someone in Diaz's vehicle brandished a firearm at him. Dale Castillo testified Danny told him he had tossed a gun into a field. At one point, Castillo recalled previously testifying Danny said he told his brother not to shoot, but Castillo admitted he "wasn't paying attention to [the] conversation." Deedee Carrasca was not sure whether Danny stated he told his brother not to shoot.
The defense called an expert on gangs, Jesse De La Cruz. De La Cruz testified about northern and southern gangs in general. He opined all three individuals in Hernandez's vehicle were validated northerners.
DISCUSSION
I. Transcripts of Defendant's First Trial
Defendant, who represented himself at his second trial, contends the trial court erred by denying him a complete transcript of his first trial. Although defendant received transcripts of the witnesses' testimony, sidebars, as well as motions in limine and the trial court's rulings thereon, he did not receive transcripts of voir dire of the jury, or the parties' opening statements and closing arguments. The Attorney General submits the trial court erroneously denied defendant copies of these transcripts, but contends the error was harmless. We agree the trial court erred in denying defendant complete transcripts of his first trial, however, we are persuaded the error was harmless under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
A. Background
On November 25, 2013, following the trial court's grant of defendant's motion to proceed pro se at trial, defendant requested complete transcripts of his first trial.
At a hearing on January 6, 2014, defendant clarified he would like "a complete trial transcript," including voir dire of the jury and the parties' opening statements and closing arguments. The prosecutor did not object to defendant's request, but the trial court demanded to know why complete transcripts were necessary. Defendant explained it would be instructive in presenting his case, because he was being retried for almost all of the same charges. The court denied defendant's request, reasoning, "We cannot know what the evidence will be at the next trial, so I don't know how that would be useful to you, because it may or may not be the same evidence. We don't know." Defendant ultimately received transcripts of his first trial with the exception of voir dire of the jury and opening and closing statements.
B. Legal Principles
Following the parties' submission of their appellate briefs, our Supreme Court decided People v. Reese (2017) 2 Cal.5th 660, 663 (Reese), which addressed the issue of whether an indigent defendant facing retrial is presumptively entitled to opening statements and closing arguments from the defendant's first trial. Our Supreme Court held, "An indigent defendant facing retrial is presumptively entitled to a 'full' and 'complete' trial transcript—and this entitlement extends to counsel's statements." (Ibid.) Thus, a defendant need not demonstrate a particularized need for the transcript because "such a need is presumed." (Id. at p. 666.) Unless, of course, the prosecution "'"clearly establish[es] the contrary."'" (Ibid.) That is, the defendant could mount an adequate defense without a transcript of the opening statements and closing arguments from his or her first trial. (Ibid.)
Where a defendant is erroneously denied all, or practically all, of the previous trial transcript, the error is structural. (People v. Hosner (1975) 15 Cal.3d 60, 70.) Structural errors require automatic reversal without a showing of prejudice. (Reese, supra, 2 Cal.5th at p. 668) "But where a defendant is wrongly denied only portions of the previous trial transcript, the error is amenable to harmless error review." (Id. at p. 671.) Under Chapman, the People must show the error was "harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) The error is prejudicial if the record shows a reasonable possibility it contributed to the jury's verdict. (Reese, supra, at p. 671.)
C. Legal Analysis
In a supplemental brief, the Attorney General concedes the trial court erred in denying defendant complete transcripts of his first trial. We therefore turn to the issue of whether the error was harmless.
The per se rule of prejudice is applied only where a defendant's equal protection rights are violated by the denial of all, or nearly all, of a transcript. (People v. Hosner, supra, 15 Cal.3d at p. 70.) Here, defendant was denied only portions of the transcript from his first trial. Pursuant to our Supreme Court's decision in Reese, reversal is not required if the People can show the error was harmless beyond a reasonable doubt under Chapman. (Reese, supra, 5 Cal.5th at p. 671.) Guided by this standard, we are persuaded the error was harmless.
According to defendant, the transcripts he was denied were critical to several issues. First, he claims he needed transcripts of the opening statements and closing arguments from his first trial to determine whether he should testify at his second trial. Because defendant declined to testify at his second trial, and none of the witnesses offered testimony of the victims brandishing a firearm at defendant, there was no evidence to support his claim of self-defense. Assuming defendant was conflicted about whether he should testify at his second trial, however, he could have consulted the transcripts he did have to determine whether his testimony was necessary. These transcripts would have permitted defendant to determine whether any evidence of brandishing could be adduced through the testimony of the other witnesses.
Defendant also suggests transcripts of opening statements and closing arguments at his first trial would have enabled him to determine whether he needed to do more to bring out prior statements "in the face of Dale [Castillo]'s more muted recollections at the second trial." However, defendant had transcripts of witness testimony from his first trial, permitting him to refresh the recollection of the witnesses who testified at his second trial. Indeed, defendant used Castillo's prior testimony to refresh Castillo's recollection at the second trial.
Further, contrary to defendant's assertions, Castillo did not offer testimony in defendant's first trial supporting direct or circumstantial evidence of brandishing. At defendant's first trial, Castillo indicated Danny said he told Christopher not to shoot, and he (Danny) "'touched the gun but ... didn't fire.'" Castillo also emphasized "[he] was trying [his] best to remember everything," but he did not recall everything that had occurred. While Castillo's testimony supplied some evidence of the fact Danny or Christopher had a gun, this does not permit us to conclude the gun was brandished at defendant.
Second, defendant suggests transcripts of opening statements and closing arguments from his first trial would have assisted him in determining whether testifying in his second trial was worth the risk of impeachment by his prior convictions and his "free talk" with police. Here, too, defendant's argument fails because he had transcripts of witness testimony from his first trial. These transcripts showed defendant was impeached with evidence of his "free talk," and defense counsel questioned defendant about his prior convictions. Thus, he should have anticipated that if he testified at his retrial, he would likely be impeached with this same evidence. Defendant asserts "jurors heard almost every prior conviction [he] had even though he ended up not testifying." Notably, the jury only heard this evidence because defendant declined to bifurcate determination of the truth of his prior convictions despite repeated warnings by the trial court.
Finally, defendant asserts transcripts of the opening statements and closing arguments could have been instructive in what was a complex case. Defendant claims we cannot speculate as to how the denial of those transcripts in a retrial would affect a pro se defendant. In urging us to reverse his convictions because of conceivable prejudice, however, he invites us to do just that.
Although portions of the transcript "may provide valuable insight into the government's strategy" (Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, 1049 (Kennedy), we are unable to conclude defendant was prejudiced. The record does not show defendant was unable to "anticipate some of the prosecution's key arguments, identify potential weaknesses in its case, assess the relative weight that the prosecution would place on various items of evidence, and better determine what would be needed to refute them." (Id. at p. 1057.) Indeed, because defendant did not deny shooting Christopher Diaz, the key issue in both cases was whether he did so in self-defense. Because none of the other witnesses offered testimony to this effect at defendant's first trial, defendant should have anticipated this would be a key issue in his second trial.
Defendant complains he was prejudiced more acutely and on more fronts than the defendant in Kennedy. His reliance on Kennedy is misplaced. In Kennedy, the defendant was tried for selling a substance that appeared to be an illegal drug to an uncover police officer. (Kennedy, supra, 379 F.3d at p. 1044.) That trial ended in a hung jury. (Ibid.) Prior to his second trial, the defendant asked the court to provide him with complete transcripts of the first trial. (Ibid.) The court denied the defendant copies of the parties' motions, the court's rulings on those motions, the court's instructions, and the parties' opening statements and closing arguments. (Id. at p. 1043.)
Prior to defendant's second trial, he was represented by new counsel who was unaware that evidence of the defendant's gang involvement was excluded from the first trial. (Kennedy, supra, 379 F.3d at p. 1043.) Without the motions in limine and the trial court's favorable rulings thereon, the prosecution took advantage of counsel's lack of knowledge about the trial court's order prohibiting gang testimony. (Id. at p. 1055.) The introduction of the gang evidence was highly prejudicial. (Ibid.)
Here, in contrast, defendant received everything but opening statements and closing arguments from his first trial, as well as voir dire of the jury. However, the prosecutor's arguments and the key issues in both trials were virtually identical. Defendant claimed he shot Christopher Diaz in self-defense after Christopher or one of his companions brandished a firearm at defendant. His opening statement and examination of the witnesses demonstrates he had a strong grasp of this key issue. In light of this evidence, we are unable to conclude defendant "failed to anticipate the prosecutor's arguments" at retrial, "or that the constitutional violation otherwise prejudiced his defense." (Reese, supra, 2 Cal.5th at p. 672.) Although the trial court erred in denying defendant complete transcripts of his first trial, we conclude the error was harmless beyond a reasonable doubt.
II. Defendant's Efforts to Examine and Cross-examine the Gang Experts
Next, defendant challenges the trial court's rulings and comments sustaining objections to his efforts to examine and cross-examine the gang experts. He contends several objections were erroneously sustained by the trial court because "even if some of the questions were objectionable ..., the court's rulings and comments unfairly told jurors any self-defense claims ... were unsupported in a close case." The Attorney General asserts, and we agree, defendant's questions were not sufficiently rooted in facts shown by the evidence. We conclude the trial court did not err by sustaining the prosecutor's objections to defendant's questions, or by explaining its rulings.
A. Background
The trial the court sustained several objections to defendant's attempts to question the gang experts. First, defendant posed the following hypothetical to the prosecutor's gang expert:
"[DEFENDANT:] ... and possibly gang signs are exchanged. And one of the occupants in the blue vehicle, which would be the southern vehicle, brandishes a weapon at the northern vehicle.
"[PROSECUTOR]: Objection, mistakes [sic] facts not in evidence.
"THE COURT: Sustained."
Next, defendant asked the prosecutor's gang expert whether gang members have a right to protect themselves. The expert responded affirmatively. Defendant asked:
"[DEFENDANT:] So if a gang member is put in a life or death situation and he had no other alternative or no other way to defend himself other than to use deadly force, would he be justified in doing so?
"[PROSECUTOR]: Objection, this is outside the scope, facts not in evidence.
"THE COURT: Sustained. That's not within the realm of the evidence as established at this point."
In examining his own gang expert, defendant posed a hypothetical about what might cause an opponent to resort to the use of deadly force during the same type of gang confrontation that occurred between defendant and the victims:
"[DEFENDANT:] ... Now one of the passengers [in the car with southern gang members] has a weapon and that weapon is brandished at the red vehicle.
"[PROSECUTOR]: Object[ion], these are facts not in evidence.
"THE COURT: Sustained. [¶] Continue with your hypothetical except for that portion."
The court also sustained several objections by the prosecutor to defendant's attempts to pose the same improper question: Defendant asked, "In your expertise ... would there be something underlying that incident that would escalate or cause the occupant in the red vehicle to shoot at the blue vehicle?" Defendant rephrased the question: "Is there something that you can draw from your expertise that would cause one of the occupants or the passengers in the red vehicle to shoot at the blue vehicle?" Finally, defendant asked, "Drawing from your experience and your expertise, is there anything in the gang world that would lead one gang member to shoot another?" The court sustained the prosecutor's objection to these questions.
B. Legal Analysis
Allowing an expert to testify in response to a thinly disguised hypothetical is not error. (People v. Vang (2011) 52 Cal.4th 1038, 1045.) However, hypothetical questions "'must be rooted in facts shown by the evidence.'" (Ibid.) The reason, of course, is that a "hypothetical question not based on the evidence is irrelevant and of no help to the jury." (Id. at p. 1046.)
Here, the hypotheticals posed by defendant were not based on facts in evidence. Defendant does not direct us to any evidence showing Christopher Diaz or his companions brandished a firearm at him. The only evidence showing someone in Christopher's vehicle had a gun was adduced through Deedee Carrasca's testimony. Carrasca testified Danny Diaz told her he or someone in his vehicle had a gun, and he threw the gun into a field. Carrasca also indicated Danny might have said he told Christopher not to shoot, but she could not remember. Danny denied having a gun, but indicated if he had, he would have used it. Miguel Quintero never heard Danny tell Christopher not to shoot, nor did he see a gun in the car. Vincent Hernandez denied seeing anyone in Christopher's vehicle brandish a firearm. Thus, evidence Christopher Diaz or someone in his vehicle had a firearm was conflicting at best.
Insofar as the jury could conclude someone in Christopher's vehicle was armed, to assume the firearm was brandished at defendant calls for speculation. The inference Christopher or Danny Diaz had a gun is properly drawn from evidence adduced at trial, but the inference the firearm was brandished at defendant is only a mere possibility. A mere possibility is nothing more than speculation, and speculation is not substantial evidence. Moreover, an "'expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors ...."'" (People v. Vang, supra, 52 Cal.4th at p. 1046.)
Contrary to defendant's assertion, the trial court's comment that "At best—and reading in the light most favorable—perhaps a gun was brandished," does not demonstrate there was circumstantial evidence of brandishing. The court's statement merely indicated brandishing was perhaps a possibility. The court's statements were made in response to defendant's insistence the jury be instructed on involuntary manslaughter. The court was explaining why the instruction was unnecessary; there was no evidence the lives of defendant or his companions were in danger.
Defendant further contends the trial court erred in preventing him from asking his gang expert what might prompt the use of deadly force in a similar confrontation between rival gang members. According to defendant, northerners are governed by certain rules prohibiting them from committing shootings unless they are threatened. Defendant contends the expert should have been permitted to render testimony to this effect.
Had defendant merely asked his gang expert about rules prohibiting northern gang members from using deadly force that would be one thing. However, by asking his gang expert what specific incident might prompt a northerner to use deadly force, he was inviting the expert to speculate. Defendant asked his gang expert, "[W]ould there be something underlying that incident that would escalate or cause the occupant in the red vehicle to shoot at the blue vehicle?" and "Is there something that you can draw from your expertise that would cause one of the occupants or the passengers in the red vehicle to shoot at the blue vehicle?" In our view, these questions were thinly veiled attempts to prompt the expert to suggest Christopher or Danny Diaz must have brandished a firearm at defendant.
Finally, defendant contends the trial court erred by stating imminent self-defense was not within "the realm of the evidence as established at this point." Because defendant did not adduce evidence of a firearm having been fired, aimed, or even brandished at him or his companions, the court's comments were proper. We conclude the trial court's challenged rulings and comments were neither erroneous nor prejudicial.
III. Defendant's Request for a Cautionary Instruction
Defendant claims the trial court erred in denying his request for a cautionary instruction regarding security measures taken by the trial court. We conclude the trial court acted within its discretion in denying defendant's request for the instruction.
A. Background
Prior to the commencement of defendant's second trial, the prosecutor filed a brief requesting the implementation of courtroom security measures based on defendant's history of aggressive behavior in court. In addition, while awaiting trial in a custodial facility, defendant pulled a television set off a wall and threw it on the ground. According to the prosecutor, security measures were also necessary because defendant would be questioning rival gang members at trial, as well as a fellow gang member who would be testifying against him.
On January 13, 2014, the court ordered defendant to remain at counsel's table during trial. If witnesses had to be shown documents, defendant would hand the documents to the bailiff. Sidebars would be prohibited. If the parties needed to discuss a matter outside of the jury's presence, the jury would adjourn to the jury room. The court reserved a decision on whether defendant would be shackled. Defendant objected. The trial court explained defendant had demonstrated an unwillingness to abide by the court's orders, and in light of the jail incident, the court was concerned he might act out. Based on the court's own observations, defendant had previously demonstrated a degree of anger uncalled for by the attendant circumstances.
Defendant filed a brief opposing the trial court's decision.
On January 22, 2014, the court ordered defendant and the prosecutor to remain at counsel's table during trial. The court told the parties they must hand documents to the bailiff who would hand them to the witness, and it reiterated sidebars would be prohibited. The court cautioned defendant he could be shackled if he engaged in aggressive behavior. Defendant objected.
On March 17, 2014, the court explained it had ordered both the prosecutor and defendant to remain at counsel's table because if the prosecutor was allowed to move around but defendant was not, the jury might infer defendant was dangerous. In lieu of remaining at counsel's table, defendant proposed the option of a stun belt.
On March 24, 2014, the court discussed courtroom security measures again. Defendant reiterated his proposal of a stun belt. The court ordered defendant to remain confined to counsel's table and to hand documents to the bailiff to deliver them to witnesses. If defendant wished to stand, he would have to raise his hand first. Defendant requested a cautionary instruction. The court denied defendant's request, explaining the instruction would highlight the fact defendant was ordered to remain at counsel's table.
The following day, defendant reiterated his request for a cautionary instruction. The court rejected defendant's request.
B. Legal Principles
Under state law, a defendant may not be subject to physical restraints while in the jury's presence "'"unless there is a showing of a manifest need for such restraints." [Citation.] Similarly, the federal "Constitution forbids the use of visible shackles ... unless that use is 'justified by an essential state interest' —such as the interest in courtroom security—specific to the defendant on trial." [Citation.]'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 389.) This stringent showing is specific to the use of physical restraints. (Ibid.) "'Security measures that are not inherently prejudicial need not be justified by a demonstration of extraordinary need. [Citations.] In contrast to physical restraints placed on the defendant's person, ... most other security practices ... based on proper exercises of discretion [have been upheld].'" (Id. at p. 390.)
C. Legal Analysis
We conclude the trial court did not abuse its discretion in declining to give the jury a cautionary instruction. The record demonstrates the court carefully considered defendant's requests for the instruction and exercised its discretion appropriately in denying defendant's requests.
In People v. Stevens (2009) 47 Cal.4th 625, our Supreme Court rejected the contention that a heightened showing of manifest need was required to justify stationing a security officer near the witness stand. The court explained the trial court must exercise its own discretion in deciding whether a given security measure is warranted on a case-by-case basis. (Id. at p. 642.) "[T]he trial court has the first responsibility of balancing the need for heightened security against the risk that additional precautions will prejudice the accused in the eyes of the jury." (Ibid.) The weighing of these competing interests "'provides the appropriate guarantee of fundamental fairness.'" (Ibid.) The Stevens court advised trial courts to state the reasoning for deciding whether to post a security guard near the witness stand, and "explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant." (Ibid.) The court also explained while it was not imposing a sua sponte duty for the trial court to do so, the trial court should consider giving a cautionary instruction advising the jury to disregard any security measures related to the defendant's custodial status. (Id. at p. 642.)
Here, as in Stevens, "The circumstances of this case do not support defendant's claims of prejudice, inherent or otherwise." (People v. Stevens, supra, 47 Cal.4th at p. 640.) There was nothing inherently prejudicial about the fact defendant was ordered to remain at counsel's table and to raise his hand to have the bailiff deliver exhibits and documents to the witnesses testifying at trial. Although the jury could contrast defendant's limited movements to the prosecutor, who was not constrained to counsel's table, nothing "'suggest[ed] particular official concern or alarm.'" (Id. at p. 635) Assuming the jury was able to discern security measures were imposed, it likely inferred the precautions were justified by the fact defendant would be questioning a fellow gang member who was testifying against him, and two rival gang members, including the brother of the murder victim. Thus, it was unclear defendant was the subject of the security measures imposed.
Just as Stevens advised, the trial court carefully weighed the need for the security measures imposed, the prejudice to defendant, and considered defendant's request for a cautionary instruction. Ultimately, the court declined to give the cautionary instruction because it would have highlighted the security measures. The court's decision was rational, logical, and an appropriate exercise of its discretion.
Defendant asserts People v. Duran (1976) 16 Cal.3d 282 supports the conclusion that even if the court's rulings on the security measures were permissible, "the court's denial of any cautionary instruction despite [defendant's] request was patent error." Duran, however, considered the imposition of physical restraints. "When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged." (Id. at p. 290.) Here, in contrast, the fact defendant was ordered to remain at counsel's table was not akin to the use of manacles or other physical restraints.
Relying on People v. Mar (2002) 28 Cal.4th 1201 and People v. Hill (1998) 17 Cal.4th 800, defendant asserts the fact he was not subject to physical restraints is irrelevant. Defendant's reliance on Mar and Hill is misplaced.
In Mar, the court noted only that prior appellate court decisions suggesting the prejudicial error standard of review under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) applies with respect to courtroom security measures imposed did not have occasion to consider what standard would apply in cases involving the improper use of a stun belt. (People v. Mar, supra, 28 Cal.4th at p. 1225, fn. 7.) In Hill, the court emphasized the trial court may not abdicate the responsibility of deciding whether the defendant should be restrained in light of the pain and burden placed on the defendant when physical restraints are used. (People v. Hill, supra, 17 Cal.4th at p. 846.) Neither Mar nor Hill support defendant's argument since defendant was neither physically restrained nor subjected to a stun belt.
We conclude the trial court did not abuse its discretion in denying defendant's request for a cautionary instruction. The instruction would only highlight the nearly imperceptible security measures imposed.
IV. The Trial Court's Instruction on CALCRIM No. 3472 (Contrived Self-defense)
Defendant claims the trial court's instruction on CALCRIM No. 3472, the prosecutor's comments during her closing argument, and the lack of an escalation instruction (CALCRIM No. 3471), unfairly restricted his claims of perfect and imperfect self-defense. CALCRIM No. 3472 ("Right to Self-Defense: May Not Be Contrived") provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." In the absence of an escalation instruction, which makes clear the circumstances under which an initial aggressor or mutual combatant may claim self-defense (CALCRIM No. 3471), defendant asserts CALCRIM No. 3472 was misleading. According to defendant, the jury was not told a defendant could claim self-defense if he initiated a nondeadly confrontation and his opponent escalated the confrontation into a deadly one. Moreover, defendant claims the prosecutor's comments in closing argument erroneously suggested an initial aggressor may never claim self-defense.
CALCRIM No. 3471 provides that a person who "engages in mutual combat" or "starts a fight" ordinarily has "a right to self-defense" only if: he actually and in good faith tried to stop the fight; communicated to his opponent by word or by conduct this intent to stop fighting; and gave his opponent an opportunity to stop fighting. However, where "the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
The Attorney General contends, and we agree, defendant's claim is unpersuasive. The trial court did not err in instructing the jury pursuant to CALCRIM No. 3472. To the extent the prosecutor erroneously suggested an initial aggressor may never claim self-defense, we find no prejudice.
A. Background
During her closing argument, the prosecutor stated self-defense is not available to a defendant who instigates a quarrel. She specifically addressed statements by Deedee Carrasca, who gave Danny Diaz a ride to his girlfriend's house following the shooting. Danny told Carrasca either he or one of his companions "had a gun that ... he threw out of his car into a field." Carrasca could not remember whether Danny said he had told his brother not to shoot. The prosecutor told the jury whether or not these statements were made was irrelevant:
"... You don't get to chase after people and call self-defense, ... the law is clear on that. [¶] You don't get to create your own situation, and you don't get to shoot at people who may or may not have a gun in their car because then police officers would be able to open fire just because there's a gun in the car. Doesn't mean you get to shoot at the car. There has to be—there's a lot that you have to go through to be able to claim self-defense. [¶] ... [¶]
"The perfect self-defense doctrine may not be invoked by a person who has created the circumstances under which his adversary's attack or pursuit is legally—is justified by his own wrongful conduct.
"And you can't ... go after someone and then cause the situation and then go, oops, self-defense. That law doesn't allow it. That's why I said it doesn't even matter that happened because we know it started at the gas station, and [defendant] went after [Christopher Diaz] because they're in rival gangs.
"The imperfect self-defense may not be invoked ... by a person, through his own wrongful conduct, has created the circumstances under which his adversary's attack or pursuit is legally justified.
"You ... can't start it and then claim self-defense. The law does not allow it. Again, there's no evidence of self-defense anyway.
"But actually an unreasonable defense is not available. Malice is not negated [i.e., imperfect self-defense is not available] if the defendant was the aggressor. And every single piece of evidence, every single piece says the defendant was the aggressor."
B. Forfeiture
Defendant failed to lodge any objections to the errors he now complains of on appeal, including the prosecutor's comments during closing argument, CALCRIM No. 3471 not being given, and the trial court's instruction on CALCRIM No. 3472. He claims an objection was not required because the trial court had a sua sponte duty to instruct on defenses. We presume defendant meant the trial court has a sua sponte duty to correctly instruct the jury.
We find no error, nor prejudice assuming error, and therefore we need not determine whether defendant's failure to object resulted in forfeiture of his claim. (§ 1259; People v. Johnson (2016) 62 Cal.4th 600, 638-639; People v. Lucas (2014) 60 Cal.4th 153, 281, fn. 47, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
C. Standard of Review
Claims of instructional error are reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) If error is found under state law, it is assessed for prejudice using the standard described in Watson, the question being whether defendant has demonstrated a reasonable probability he would have obtained a more favorable result had the error not occurred. (People v. Moore (2011) 51 Cal.4th 1104, 1130, 1140; People v. Canizalez (2011) 197 Cal.App.4th 832, 858.)
Heightened scrutiny is applied when evaluating errors that infringe upon a party's due process rights, e.g., the use of jury instructions that relieve the prosecution of its burden to prove each element of the charged offense beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 491; People v. Larsen (2012) 205 Cal.App.4th 810, 824.) Such errors are considered prejudicial unless the reviewing court determines "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.) Stated another way, the Chapman standard requires the People to show "beyond a reasonable doubt that the result would have been the same notwithstanding the error." (People v. Dungo (2012) 55 Cal.4th 608, 647 (dis. opn. of Corrigan, J.).) Here, it is unnecessary to decide whether the use of CALCRIM No. 3472 was erroneous or implicated defendant's constitutional rights because the alleged error was harmless by any standard.
D. Legal Analysis
To the extent the prosecutor appeared to suggest a defendant is foreclosed from claiming self-defense if he or she provoked a confrontation, we agree the challenged comments were erroneous. Where the defendant is the initial aggressor in a nondeadly confrontation but his or her opponent suddenly escalates the confrontation by using deadly force, the defendant has a right to claim self-defense. (CALCRIM No. 3471.) Thus, under certain circumstances, a defendant is not foreclosed from asserting self-defense even though he or she initiated the confrontation.
Nonetheless, the prosecutor's comments were harmless error. There was no evidence Christopher Diaz or any of his companions brandished a firearm at defendant or his companions. Defendant contends this is a reasonable inference to be drawn from the evidence. Although some evidence supports the conclusion someone in Christopher Diaz's vehicle may have had a gun, to infer the gun was brandished at defendant or his companions is pure speculation. Other than defendant's unsupported assertions, there is no evidence he shot Christopher Diaz in self-defense. Although not entirely clear from the record, it appears the imperfect self-defense instruction (CALCRIM No. 571) was considered with the expectation defendant might testify in his own defense, thereby supplying some evidence of his brandishing claim. When it became apparent defendant was not going to testify, and no other evidence had been adduced to support defendant's claim of self-defense, the court instructed on heat of passion and imperfect self-defense "out of an overabundance of caution." Both the prosecutor and the trial court expressed the view there was not substantial evidence to support these theories.
Relying on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), a divided opinion by Division Three of the Fourth District Court of Appeal, defendant contends CALCRIM No. 3472 "improperly restrict[s] the fundamental right of self-defense." Defendant's reliance on Ramirez is unpersuasive.
There, the defendants—brothers and members of a criminal street gang—sought out a rival gang for purposes of an assault. When one of the defendants believed one of the rival gang members had a weapon, he responded with deadly force. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) The prosecutor argued pursuant to CALCRIM No. 3472: whether the rival gang member had a gun was irrelevant because having provoked the fight, the defendants forfeited the right to claim self-defense. (Ramirez, at p. 946.) Over a vigorous dissent by Justice Fybel, the Court of Appeal held CALCRIM No. 3472 reflects a correct rule of law in some circumstances, but it did not accurately state the correct law under the facts of that case. "[I]t is wrong to instruct the jury that: 'Having committed the first wrongful act, the plea of self-defense is foreclosed to him, and his life is the penalty, no matter what turn the affray may subsequently take.'" (Ramirez, at p. 947.)
Ramirez is readily distinguishable from the instant case. In Ramirez, there was evidence from which a reasonable trier of fact could conclude the defendants' opponents suddenly escalated a fistfight to a gunfight. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) Such evidence arguably supports a reclaimed right to assert self-defense.
Here, even assuming defendant did not intend to provoke a deadly confrontation, there is no evidence Christopher Diaz or his companions suddenly escalated the confrontation using deadly violence. There is no evidence, for example, that a firearm was fired, aimed, or even brandished at defendant. Unlike Ramirez, there is no evidence the victims here responded to a nondeadly confrontation using sudden and deadly force. We conclude CALCRIM No. 3472 did not improperly affect the verdict, nor is it reasonably probable defendant would have obtained a more favorable result had the instruction not been given. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)
V. Instructions on the Testimony of an Accomplice
Defendant contends CALCRIM Nos. 335 and 708 directed a verdict or reduced the People's burden of proof. These instructions required the jury to find Hernandez was an accomplice as a matter of law (CALCRIM No. 335), and not to convict defendant of any of the charged crimes based on Hernandez's testimony alone (CALCRIM No. 708). Defendant contends the instructions were erroneous because they unfairly imputed Hernandez's guilt to him, "making his guilt a foregone conclusion." The Attorney General contends evidence of Hernandez's involvement in the crime permitted only a single inference: he was an accomplice as a matter of law. We conclude the trial court did not err in instructing the jury pursuant to CALCRIM Nos. 335 and 708.
A. Legal Principles
Section 1111 defines an accomplice 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." "An 'accomplice' is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime." (People v. Jones (1967) 254 Cal.App.2d 200, 213.) Whether a person is an accomplice is a question of fact for the jury to decide unless the evidence and the inferences to be drawn from the evidence are clear and undisputed, in which case the trial court can decide as a matter of law whether a person was or was not an accomplice. (People v. Williams (1997) 16 Cal.4th 635, 679.)
In People v. Hill (1967) 66 Cal.2d 536, 554 (Hill), three codefendants were tried together, but only one, Madorid, testified at trial. His testimony inculpated himself in the crime as well as the other codefendants. (Id. at p. 555.) The trial court instructed the jury "if it found the crimes charged to have been committed, 'and if you further find that defendant Madorid was an accomplice ..., then as against codefendants ... his testimony must be corroborated.'" (Ibid.) On appeal, the nontestifying defendants claimed the trial court erred in failing to instruct the jury Madorid was an accomplice as a matter of law. (Id. at p. 554.) Our Supreme Court rejected this argument, recognizing the potential danger of such an instruction: "[W]here a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant's foregone guilt to the other defendants." (Id. at p. 555) The court concluded under such circumstances, it is not error to forgo giving accomplice instructions if "the giving of them would unfairly prejudice a codefendant in the eyes of the jury." (Ibid.)
In People v. Bittaker (1989) 48 Cal.3d 1046, disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912, 919, the court found Hill inapplicable. There, the defendant and his prison acquaintance, Roy Norris, kidnapped and murdered five teenage girls. (People v. Bittaker, supra, at p. 1062.) The defendant was charged with multiple counts of murder, kidnapping, rape, and torture with special circumstances. (Ibid.) Norris pleaded guilty to five counts of murder and testified for the prosecution at the defendant's trial. (Id. at p. 1063.) The court instructed the jury Norris was an accomplice as a matter of law and his testimony must be corroborated by independent evidence. (Id. at p. 1100.) On appeal, the defendant claimed the accomplice instruction was prejudicial under Hill. Without significant discussion, our Supreme Court held "[u]nder the circumstances of this case, ... there is no significant danger that the jury would impute Norris's admitted guilt to defendant." (Bittaker, supra, at p. 1100.)
B. Legal Analysis
Here, as in Bittaker, defendant's accomplice Hernandez plead guilty before trial, testified at defendant's trial, and the trial court instructed the jury he was an accomplice as a matter of law and his testimony must be corroborated by other evidence. Defendant challenges those instructions, asserting they permitted the jury to impute Hernandez's guilt to him. We conclude the challenged instructions were legally correct and presented no danger of the prejudice Hill cautioned against.
Evidence of Hernandez's plea agreement led to the clear and undisputed fact he was an accomplice to defendant's crimes, assuming the jury found the charged offenses had been committed. Hernandez testified he pleaded guilty for his participation in the shooting because when he left the gas station, he knew where they were going. He admitted he knew something was going to happen "Because that's the way we are." The accomplice instructions permitted the jury to consider Hernandez's testimony if and only if the jury found the charged offenses had been committed. We presume the jury understood and followed the trial court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940 ["jurors are presumed to be intelligent and capable of understanding and applying the court's instructions"].)
The jury was further instructed it could not convict defendant of any of the charged offenses based on Hernandez's statements alone. Although defendant claims the jury nonetheless imputed Hernandez's guilt to him, we note that excluding Hernandez's testimony, there was substantial evidence of defendant's guilt. Indeed, defendant did not deny shooting Christopher Diaz. Although he claimed he had acted in self-defense, he offered no evidence to support his claim.
Hernandez pleaded guilty in a separate proceeding before trial, and the jury heard substantial independent evidence about defendant's participation in the charged offenses that was highly incriminating. Here, as in Bittaker, there was no significant danger the jury imputed Hernandez's admitted guilt to defendant based on the fact the jury was instructed Hernandez was an accomplice as a matter of law.
VI. The Trial Court's Instruction on Flight and Suppression of Evidence as Consciousness of Guilt
A. Background
Immediately following the shooting, defendant ordered Hernandez to drive to defendant's cousin's house where the group was eventually arrested. Despite extensive search efforts by law enforcement authorities, the gun defendant used in the shooting was never recovered.
B. Legal Analysis
Defendant challenges the trial court's instruction on flight as evidence of consciousness of guilt (CALCRIM No. 372), as well as the court's instruction on the suppression of evidence as evidence of consciousness of guilt (CALCRIM No. 371). He contends any evidence of flight "said nothing about the nature or degree of his guilt or about which crime(s) he was fleeing from."
Preliminarily, we note defendant does not direct us to portions of the record showing he lodged a specific and timely objection to the challenged instructions below, thereby preserving the issue for appeal. Moreover, the record shows substantial evidence of flight and the suppression of evidence. Insofar as defendant contends CALCRIM No. 372 (flight) must somehow evince the degree of a defendant's guilt or which crime a defendant is fleeing from, we reject that theory.
CALCRIM No. 372 provides the following, in part:
"If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself."
Flight does not require a defendant to physically run from a scene, nor does it require the defendant to reach a place of safety. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.'" (Ibid.)
Here, following the shooting, defendant ordered Hernandez to drive to his cousin's house. Defendant contends this evidence of flight said nothing about the nature or degree of his guilt, or about which crimes he was fleeing from. However, this is not required pursuant to the instruction. Assuming the jury concluded there was evidence of flight, it was for the jury "to decide the meaning and importance of that conduct." (CALCRIM No. 372.) The plain language of the jury instruction makes this clear.
Defendant directs us to a line of authority, however, none of the cases he relies upon supports his argument. (People v. Anderson (1968) 70 Cal.2d 15, 32 [the defendant's conduct after a killing did not show premeditation and deliberation]; People v. Williams (1988) 44 Cal.3d 1127, 1144, fn. 9 ["evidence that a defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt"]; United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1049 [probative value of flight as circumstantial evidence of guilt "depends upon the degree of confidence with which four inferences can be drawn"]; State v. Whitney (1927) 43 Idaho 745, 754 [254 P. 525, 527] ["Flight in respect to another and different offense is not to be considered as evidence of the guilt of an offense from which there was no flight"].)
Insofar as defendant challenges the trial court's instruction on the suppression of evidence (CALCRIM No. 371), we conclude this instruction was also proper. CALCRIM No. 371 as given to the jury provides:
"If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
The firearm defendant used in the shooting was never recovered by police. The court could reasonably infer defendant disposed of the firearm following the shooting. Thus, the trial court did not err by instructing the jury on CALCRIM No. 371.
VII. The Trial Court's Failure to Define the Phrase "In Association With a Criminal Street Gang" Sua Sponte
Defendant contends the trial court erred by failing to provide the jury with a clarifying instruction, sua sponte, on the meaning of the term "in association with a criminal street gang" pursuant to the gang enhancements. He claims under the holding of People v. Albillar (2010) 51 Cal.4th 47 (Albillar), "in association with a criminal street gang" has a legal meaning with a specific definition that needed to be defined for the jury. We conclude CALCRIM No. 1401 sufficiently instructed the jury on the law and no further instruction was required absent a request by counsel. Because no such request was made, the trial court was under no obligation to define the challenged phrase.
"The trial court has a sua sponte duty to give correct instructions on the basic principles of the law applicable to the case that are necessary to the jury's understanding of the case. [Citation.] That duty requires the trial court to instruct on all the elements of the charged offenses and enhancements." (People v. Williams (2009) 170 Cal.App.4th 587, 638-639.) When the terms are used as commonly understood, however, the court has no obligation to define them absent a request for amplification or explanation. (People v. Richie (1994) 28 Cal.App.4th 1347, 1360.)
Defendant asserts the phrase "in association with a criminal street gang" must be defined by the trial court because Albillar set forth a specific legal definition of the phrase. Albillar did not provide a new definition for the phrase, nor did it hold the phrase has a technical meaning requiring instruction. The court merely discussed the sufficiency of the evidence in establishing the elements of the gang enhancement. (Albillar, supra, 51 Cal.4th at pp. 61-62.)
In a separate opinion in Albillar, Justice Werdegar dissented as to the majority opinion's conclusion the gang enhancement in that case was supported by substantial evidence, particularly, the majority opinion's reliance on the expert's opinion to provide that substantial evidence. (Albillar, supra, 51 Cal.4th at pp. 68, 70-73 (conc. & dis. opn. of Werdegar, J.).) Justice Werdegar also took exception to the majority opinion's definition of "in association with," and declared it rendered the language of section 186.22, subdivision (b) redundant. (Albillar, at pp. 73-74.) Justice Werdegar concluded the gang enhancements should be reversed because the jury's findings on the enhancements "necessarily relied on the construction of the phrase provided by the prosecutor, a construction neither consistent with the statute nor endorsed by the majority." (Id. at p. 73.)
Defendant's claim of instructional error appears to be based on Justice Werdegar's concurring and dissenting opinion in Albillar. Even if that separate opinion was controlling authority, Justice Werdegar did not advocate a specific definition for "in association with." The opinion merely criticized the majority opinion for relying on the expert to provide substantial evidence in light of the prosecutor's purported erroneous definition of the phrase. Moreover, Justice Werdegar referred to a common definition of "associate," specifically, the definition from "Merriam-Webster's Eleventh Collegiate Dictionary (2004) at page 75" which defined "'associate,' as '... 1 : to come or be together as partners, friends, or companions 2 : to combine or join with other parts.'" (Albillar, supra, 51 Cal.4th at p. 70, fn. 2 (conc. & dis. opn. of Werdegar, J.).) Thus, defendant's reliance on Albillar is unpersuasive.
The trial court did not have a duty under Albillar to define the phrase "in association with a criminal street gang" absent a request by defendant. Since no such request was made, we find no error.
VIII. The Gang Expert's Reliance on Hearsay Evidence
Defendant contends the admission of certain testimony by the prosecutor's gang expert was based on hearsay, which violated state law and, in some instances, federal law. He asserts the admission of testimonial hearsay violated his Sixth Amendment right to confrontation (see Crawford v. Washington (2004) 541 U.S. 36 (Crawford)), and further, the cumulative effect of hearsay admitted in violation of federal and state law necessitates reversal of his convictions. Defendant specifically challenges the prosecutor's gang expert's opinion as to the following: (1) defendant and his companions, as well as the victim and his companions, are active members of various criminal street gangs; (2) the Visalia-area Norteños are a unified criminal street gang based on intergang cooperation; and (3) the gang has engaged in a "pattern of criminal gang activity" as the phrase is defined under section 186.22, subdivision (e).
To the extent the record permits us to infer the gang expert relied on and related case-specific facts, some of which were testimonial, we conclude the erroneous admission of this evidence was harmless error under Chapman.
A. Forfeiture
The Attorney General argues defendant forfeited his claims by failing to object below. Defendant implicitly concedes he did not lodge a confrontation clause objection to any of the evidence he now challenges on appeal. However, he claims any objection would have been futile in light of existing state law at the time of his trial.
In People v. Gardeley (1996) 14 Cal.4th 605, 619, our Supreme Court held, "[c]onsistent with [the] well-settled principles" concerning expert witness testimony, a detective "could testify as an expert witness and could reveal the information on which he had relied in forming his expert opinion, including hearsay." The court reasoned gang experts can rely on inadmissible hearsay because such evidence is not offered as "'independent proof'" of any fact. (Id. at p. 619.) Our Supreme Court recently disapproved Gardeley in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), holding: "[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.)
Defendant contends his claim has not been forfeited because any objection to the prosecutor's gang expert's testimony would have been futile under then existing state law. (People v. Welch (1993) 5 Cal.4th 228, 237 ["[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].) Defendant asserts the only published Court of Appeal decision suggesting the law may be changing with respect to a gang expert's reliance on testimonial hearsay—People v. Archuleta (2014) 225 Cal.App.4th 527—was not filed until after his trial had concluded.
The transcript from defendant's first trial provides some support for defendant's futility argument. There, the trial court overruled defendant's objection to the gang expert's testimony on hearsay grounds, explaining "[Officer Pena is] an expert, and experts may rely on hearsay for their opinion." Because the same judge presided over defendant's retrial, we are persuaded any subsequent objections to the gang expert's testimony would have been futile. In reaching our conclusion, we further note our Supreme Court's decision in Sanchez was a significant divergence from its prior, controlling decision in Gardeley. The Sanchez case was also a dramatic departure of our Supreme Court's treatment of hearsay testimony by gang experts. In light of the trial court's rulings on defendant's prior objections and the paradigm shift occasioned by Sanchez, we will address the merits of defendant's claim.
B. Confrontation Clause and "Basis Evidence"
According to Sanchez, "If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross- examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686.)
Thus, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
Testimonial statements are those "made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689.) Further, "in order to be considered testimonial, 'the statement must be made with some degree of formality or solemnity.'" (People v. Ochoa (2017) 7 Cal.App.5th 575, 583, quoting People v. Dungo, supra, 55 Cal.4th at p. 619.) In contrast, "[n]ontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, at p. 689; see id. at pp. 691-694.) Where a gang expert relies upon, and relates as true, a testimonial statement, "the fact[s] asserted as true have to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685.)
C. Legal Analysis
1. Defendant's Police Contacts
Defendant challenges the expert's testimony describing his prior contacts with police. Evidence of defendant's prior police contacts were admitted to show he was an active Norteño gang member. Although evidence of these contacts was admitted in violation of state law hearsay, and in some instances federal hearsay, we conclude the error was harmless under Chapman. There was overwhelming nonhearsay evidence showing defendant was a member of the NSV Norteños, as well as the overarching Visalia-area Norteños.
Pena described five prior contacts with police wherein defendant either self-admitted his affiliation with the NSV or the Norteños, or he was contacted wearing gang colors. Of the contacts he described, one appears to be hearsay inadmissible under state law. (Sanchez, supra, 63 Cal.4th at pp. 680, 686.) On August 25, 2007, defendant was reported as a runaway by his mother. Defendant's family advised police defendant was "possibly" a gang member. Because Pena indicated he had not personally contacted defendant prior to the instant case, Pena was relating a case-specific fact about which he had no personal knowledge. (Sanchez, supra, at p. 676 [an expert is generally not permitted "to supply case-specific facts about which he has no personal knowledge"]; Evid. Code, § 702 ["the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter"].)
The record further shows two contacts were testimonial. On June 1, 2000, defendant was arrested for public intoxication. Following his arrest, defendant was found in possession of a neatly folded red bandana. On July 4, 2006, defendant was arrested for brandishing a firearm. Following defendant's arrest, he was documented wearing a red shirt and having gang tattoos. Pena relied upon and related as true these case-specific facts, which were gathered by other officers during the investigation of completed crimes.
As to the remaining two contacts, defendant does not present any argument as to whether these contacts are testimonial or nontestimonial. On May 5, 2005, defendant was contacted by a gang suppression unit officer following a court-ordered requirement he register as a gang member. During this contact, he admitted he was an NSV Norteño and stated he had been a member of the gang for the past three years. On April 23, 2009, following a traffic stop, defendant admitted to an officer in the gang suppression unit that he was an active Norteño gang member. He also admitted he had been housed with Norteño gang members when he was previously in custody.
Because defendant's admissions were made following a criminal prosecution rather than during the course of an ongoing criminal investigation, and the gang registration requirement serves public safety functions unrelated to preserving past facts for future criminal prosecution, we are not persuaded evidence of defendant's admissions are testimonial. The record does not permit us to infer whether defendant's statements were memorialized with some degree of formality, like the California Street Terrorism Enforcement and Prevention Act (STEP) notices in Sanchez (Sanchez, supra, 63 Cal.4th at pp. 696-697). Nonetheless, defendant's admissions are hearsay under state law. Although defendant's admissions presumably come within an exception to the rule against hearsay as a party admission (Evid. Code, § 1220), the record shows the admissions were made to officers who did not testify. Each layer of hearsay must come within an exception to be admissible.
For purposes of assessing prejudice, which we address below, whether these contacts are testimonial or nontestimonial presents a distinction without a difference. Because some evidence of defendant's prior contacts with police are testimonial, we address the cumulative effect of all errors under the constitutional standard. (Sanchez, supra, 63 Cal.4th at p. 697.)
2. Evidence Showing Defendant's Companions and Christopher Diaz and His Companions Were Active Gang Members
Next, defendant challenges the expert's opinion as to the active gang membership status of Christopher Diaz, Danny Diaz, Miguel Quintero, Vincent Hernandez, and Anthony Cortez. Although Pena assumed Christopher Diaz, Danny Diaz, and Miguel Quintero were all active Sureño gang members in various hypotheticals posed by the parties, defendant fails to direct us to specific portions of the record where Pena related case-specific facts to establish as much.
The record shows evidence of Danny and Christopher's active gang membership status was established by the testimony of Danny and Miguel Quintero. Danny testified he and his brother were southern gang members. He also testified he had been in the gang since he was 13 years old. Quintero told police both Danny and Christopher "claim south." This testimony was independent competent evidence of the fact Danny and Christopher were active southern gang members. We find no error with respect to the fact Pena responded to hypotheticals assuming Christopher and Danny were active Sureño gang members.
We express no view as to whether the evidence adduced at trial was sufficient to infer Quintero was an active gang member. Because defendant does not direct us to portions of the record wherein Pena related case-specific facts to establish as much, and we can discern no prejudice from the People's failure to prove Quintero was an active gang member, we do not reach this issue.
Pena further opined defendant, Hernandez, and Cortez were all active Norteño gang members at the time the shooting occurred. To support his conclusion, Pena adduced evidence of several prior police contacts involving Hernandez and Cortez. The record demonstrates some of these contacts were based on hearsay inadmissible under state law and, in some instances, federal law.
Pena described three prior police contacts with Hernandez. During these contacts, Hernandez self-admitted to being an active gang member, he was documented wearing gang colors and in the company of other active gang members, and he disclosed various gang-related tattoos to police. Because Pena had never met Hernandez, all three prior police contacts he described were based on hearsay. Although these contacts may also be testimonial, the record does not permit us to discern as much, nor may we assume as much in the absence of an objection. (People v. Ochoa, supra, 7 Cal.App.5th at p. 584.)
With respect to Anthony Cortez's prior contacts with police, Pena adduced evidence of several police contacts wherein Cortez was documented in the company of Norteño gang members, he self-admitted to being a Norteño gang member, and he was documented wearing red clothing and having gang tattoos. Pena also testified Cortez was "identified" as brandishing a handgun during a robbery case in 2008. Although defendant did not object to Pena's testimony, Pena's testimony shows the contacts he described occurred during the investigation of completed crimes. We are, however, unable to discern whether Pena was personally involved in any of these contacts. Since Pena had previously contacted Cortez, it is possible he was involved in some of these contacts, although the record suggests otherwise.
3. Evidence the Visalia-area Norteños Are a Criminal Street Gang Based on Intergang Cooperation
Defendant argues, "Absent personal contacts with [defendant], testimonial and other hearsay was critical to support Pena's opinions that: ... 'Norteño' was even really a street gang based on inter-gang cooperation (a significant point given the varying subsets of persons in [defendant's] car ...." It is unclear if defendant is challenging the admissibility of the evidence "showing an associational or organizational connection that unites members of [the] putative criminal street gang," given the fact the Visalia-area Norteños comprise various subsets. (People v. Prunty (2015) 62 Cal.4th 59, 67 (Prunty).) Alternatively, defendant's argument could also be construed to challenge the prosecutor's theory that defendant committed the shooting in association with the Visalia-area Norteños because Hernandez and Cortez were not shown to be in the same criminal street gang subset as defendant. Neither claim is persuasive.
Prunty applies where the prosecution theorizes the defendant committed a crime to benefit an overarching umbrella gang, but the existence of that gang turns on the conduct of one or more subsets. (Prunty, supra, 62 Cal.4th at pp. 67-68.) Here, the prosecutor theorized defendant committed the instant crimes for the benefit of the Visalia-area Norteños. Substantial nonhearsay evidence showed defendant identified as a Norteño, he claimed membership to a particular subset, NSV, and he threw Norteño gang signs just prior to shooting a perceived rival gang member during a drive-by shooting. The evidence also showed Victor Tovar, one of the perpetrators of the predicate offenses, belonged to NSV. There is no evidence Brandon Flores, the perpetrator of the second predicate offense, belonged to any particular subset of the Norteños.
We doubt Prunty is implicated by the mere mention of subsets. Particularly where, as was shown here, one of the perpetrators of the predicate offenses claimed membership to the same Norteño subset as defendant, and the second offender was shown to be a member of the overarching Norteño gang rather than any particular subset. Although we are skeptical that Prunty is implicated here, to the extent it could conceivably apply, we conclude there was substantial nonhearsay evidence linking NSV to the overarching Visalia-area Norteños.
Pena described a 2010 wiretap operation he participated in wherein he learned the subsets of the Visalia-area Norteños work together to form hit squads. These hit squads, comprising NSV, NSVY, and MGB subset gang members, work together to commit shootings, home invasions, and to collect debts for the Norteño gang. All members of the hit squad answer to a regiment commander, and the squad trains "as a SWAT team." According to Pena, the squad practices dynamic entry into homes, conducts physical training to prepare for missions, and performs shooting exercises. Evidence showing various subsets collaborating to achieve shared goals, strategizing to carry out activities, or exhibiting loyalty to one another is sufficient to imply the existence of a shared venture. (Prunty, supra, 62 Cal.4th at pp. 78-79.) Assuming Prunty applies, we conclude this evidence was sufficient to show NSV was organizationally connected to other Visalia-area Norteño subsets, as well as the overarching Visalia-area Norteño gang.
Defendant further contends, "officer Pena barely bothered to identify the specific local cliques involved in the current offenses." Defendant does not explain why the prosecutor was required to identify the subset or clique Hernandez and Cortez claimed membership to, if any, for purposes of the criminal street gang enhancement or the gang special allegation. We find no error as a result. (In re S.C. (2006) 138 Cal.App.4th 396, 408 ["When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court'"].)
4. Predicate Offenses
Defendant further challenges the gang expert's testimony as it pertains to the pattern of criminal gang activity committed by the gang. To establish the Visalia-area Norteños have committed a "pattern of criminal gang activity," the prosecutor adduced evidence of two predicate offenses. (§ 186.22, subds. (a), (e).)
On July 17 2007, Victor Tovar, Anthony Nanez (Buddha), and Benjamin Solis went to the home of two known Sureño gang members in Visalia. Tovar fired multiple rounds into the victims' home. Tovar was apprehended following a police pursuit. During police questioning, he admitted the shooting was retaliation for a prior incident perpetrated by a Sureño gang member. Tovar was convicted of attempted homicide and, in addition, the jury found true a criminal street gang enhancement.
Pena was involved in the apprehension of Tovar, but he was not involved in the investigation of Tovar's case. In opining Tovar was an active gang member, Pena explained he based his opinion on Tovar's self-admission to being an active NSV gang member, "and other criteria[] [Tovar] met." Pena also related the gang expert in Tovar's case had determined Tovar was an active gang member.
On August 16, 2007, Pena responded to a shooting in Visalia. The victim, Daniel Saesee, was approached by three northern gang members, Brandon Flores, John Fernandez, and Victor Fernandez. The group questioned Saesee as to whether he was a member of the Oriental Troop gang. A fight ensued and Flores shot and killed Saesee. Flores was convicted of first degree murder and, in addition, the jury found true an allegation Flores committed the murder as an active participant in a criminal street gang and to further the activities of the gang. (§ 190.2, subd. (a)(22).)
Pena based his conclusion that Flores was an active northern gang member on the opinion of the expert who worked on Flores's case, Flores's self-admission, and the fact Flores committed a gang crime in the company of additional gang members. Pena was one of the first responders to the shooting and was involved in the investigation of Flores's case.
Following Sanchez, one Court of Appeal has held evidence of a nonparty's out-of-court admission that he or she is a member of a particular criminal street gang, offered to prove he or she is a gang member, is a case-specific fact. (See People v. Ochoa, supra, 7 Cal.App.5th at pp. 588-589.) Sanchez explained an expert's opinion "[t]hat an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.) Ochoa reasoned, "by analogy, that someone admitted being a gang member is also a case-specific fact." (Ochoa, at p. 589.)
We note Sanchez held "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676, italics added.) However, in our view, this does not cast doubt on Ochoa's holding for several reasons.
First, Sanchez did not directly confront the issue raised in Ochoa. Rather, the defendant in Sanchez challenged the admission of his prior contacts with police, his receipt of a "STEP" notice, and a field identification card documenting his membership in a Delhi gang. (Sanchez, supra, 63 Cal.4th at p. 674.) Thus, the defendant apparently did not challenge the expert's use of testimonial hearsay with respect to the predicate offenses.
Second, to the extent we are guided by Sanchez's explanation of what constitutes a case-specific fact versus general background information, a nonparty's self-admission to being a member of a criminal street gang appears to fall within the former category rather than the latter. We turn to Sanchez's example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact .... That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, at p. 677.) Thus, where an expert testifies that a nonparty self-admitted to being a member of a particular street gang, he is not telling the jury in general terms that he is relying on hearsay to form his opinion or testifying about general knowledge within his field of expertise. (Id. at p. 685.) He is relating a specific statement.
Finally, showing a group has committed a pattern of criminal gang activity is a foundational element to showing it meets the statutory definition of a criminal street gang under section 186.22, subdivision (f). When the expert relates that a perpetrator of a predicate offense has self-admitted to being a member of the criminal street gang alleged to exist, such an admission logically relates to "the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
Here, Tovar's and Flores's admissions were made during the course of an investigation of a completed crime. However, it is unclear what document or documents Pena was relying on in adducing evidence of these admissions. (People v. Dungo, supra, 55 Cal.4th at p. 619 [to be considered testimonial, "the statement must be made with some degree of formality or solemnity"].) Moreover, we are unable to ascertain whether Tovar's and Flores's admissions were made to Pena or to another officer who either related the statements to Pena or memorialized the statements in a police report. (Sanchez, supra, 63 Cal.4th at p. 676 [expert is generally not permitted "to supply case-specific facts about which he has no personal knowledge"].) Regardless, evidence of Tovar's and Flores's admissions was inadmissible hearsay under state law, and, as discussed, we must examine the cumulative effect of all errors under Chapman.
Although we dedicate substantial discussion to Tovar's and Flores's admissions, we note that was not the only hearsay evidence related by Pena with respect to the predicate offenses. Tovar's admission that the shooting was retaliation for an earlier incident perpetrated by a Sureño gang member, as well as the fact that Flores and his accomplices questioned Daniel Saesee about his gang ties also appear to be based on hearsay. --------
The Attorney General contends records of prior convictions are neither hearsay nor testimonial because they are not generated for purposes of memorializing past facts for criminal prosecution. He directs us to People v. Perez (2011) 195 Cal.App.4th 801, 804, and People v. Taulton (2005) 129 Cal.App.4th 1218, 1224-1225, where the courts held prison and jail records are outside the scope of the Sixth Amendment because they are prepared for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial. Here, the certified copies of the indictments, minute orders, and abstracts of judgments admitted to prove Tovar's and Flores's convictions permit us to infer they are active members of a criminal street gang. They do not permit us to infer which criminal street gang they claimed membership to.
D. Prejudice
To summarize, the gang expert related testimonial and nontestimonial hearsay in adducing evidence of the following: defendant's prior contacts with police, Hernandez's and Cortez's prior police contacts, and the offenses committed by Tovar, a self-admitted member of NSV, and Flores, a self-admitted northerner.
Under Chapman, the People must prove the errors were harmless beyond a reasonable doubt; that is, the errors did not contribute to the jury's verdict. (People v. Houston (2012) 54 Cal.4th 1186, 1233; Sanchez, supra, 63 Cal.4th at p. 699; People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) "'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.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; see People v. Leon, supra, at p. 1020.) The judgment must be reversed unless it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error. (People v. Capistrano (2014) 59 Cal.4th 830, 873; People v. Livingston (2012) 53 Cal.4th 1145, 1159.)
Determining whether the error was prejudicial "requires an examination of the elements of the gang enhancement and the gang expert's specific testimony." (Sanchez, supra, 63 Cal.4th at p. 698.) Here, the prosecutor theorized defendant committed the shooting for the benefit of or in association with the Visalia-area Norteños, and with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§§ 186.22, subd. (b).) The prosecutor also theorized defendant committed the murder of Christopher Diaz as an active gang member and in furtherance of the activities of the gang (§ 190.2, subd. (a)(22)).
1. Defendant's Active Gang Membership Status
Although Pena related some testimonial hearsay in discussing defendant's prior police contacts, we are not persuaded evidence of these contacts tainted the jury's finding that defendant was an active member of the Visalia-area Norteños and of the NSV Norteño subset. Hernandez, who self-identified as a northerner, identified defendant as an active northerner at trial. Defendant had multiple gang tattoos, including, an "X4" on his hand, a Huelga bird on his left wrist, and four dots on his left fingers, left thumb, and around his left eye. Defendant also had six contacts of active Norteño gang members in his cell phone, many of whom were high-ranking members of Norteño hit squads.
The most compelling evidence of defendant's active gang status, however, were the circumstances of the crime itself. The evidence showed defendant perceived Christopher Diaz and his companions to be southerners, members of a rival gang. After a confrontation at the Prince Market gas station, defendant instructed Hernandez to catch up to Christopher's vehicle. In so doing, defendant and his companions flashed gang signs at Christopher and his companions. When Christopher and his companions flashed gang signs back, defendant fired 10 shots at Christopher, shooting him in the head, neck and chest. One witness testified he heard a series of gunshots followed by another series of gunshots, suggesting defendant acted not by impulse, but with the intent to kill.
Following the shooting, defendant and his companions fled to the home of defendant's cousin, who was himself an active Norteño gang member. Finally, after their arrest, defendant and Cortez were recorded discussing the possibility of a gang enhancement for the shooting. In view of this evidence, we are persuaded the erroneous admission of defendant's prior police contacts was harmless. The inadmissible evidence was simply "unimportant in relation to everything else the jury considered on the issue." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds by Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.)
2. Evidence Hernandez and Cortez Were Active Gang Members
Pena also related testimonial and nontestimonial hearsay in adducing evidence of three prior contacts Hernandez had with police. We conclude the erroneous admission of this evidence was also harmless.
At trial, Hernandez admitted he was an active northerner at the time of the shooting, but had since dropped out of the gang. Thus, evidence of Hernandez's prior contacts with police was inconsequential in light of the admissible evidence demonstrating his active gang membership status.
With respect to Cortez, there was some nonhearsay evidence showing he was an active Norteño gang member. He displayed gang signs at rival gang members during the incident, he was in the company of two other active Norteños, and Hernandez identified him as a northerner. However, because the evidence failed to show Cortez meaningfully participated in the instant offense, we conclude any error as to the erroneous admission of his prior police contacts was also harmless.
3. The Predicate Offenses
In opining Tovar and Flores were gang members, Pena relied on and related as true case-specific hearsay statements. Although evidence of Tovar's and Flores's self-admissions were case-specific hearsay statements, we are persuaded the verdict would have been the same notwithstanding the erroneous admission of this evidence. (Chapman, supra, 386 U.S. at p. 24.)
A criminal street gang is defined as "an ongoing association of three or more persons with a common name or common identifying sign or symbol [that] has as one of its primary activities the commission of one or more of the criminal acts enumerated in [section 186.22,] and ... includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses ... during the statutorily defined period." (People v. Gardeley, supra, 14 Cal.4th at p. 617, italics omitted.) The People are not required to prove the offenses were gang related. (Id. at p. 621.)
Here, the jury could have concluded the Visalia-area Norteños had committed a pattern of criminal gang activity without relying on Tovar's and Flores's convictions. Because there was overwhelming evidence defendant was a Norteño gang member, his conviction in the current case qualified as one of the predicate offenses. (§ 186.22, subd. (e)(3) [unlawful homicide qualifies as a predicate offense].) Additionally, the jury heard evidence Flores committed the murder of Daniel Saesee with two other northern gang members, including John Fernandez. The certified minute orders show John Fernandez was also charged and convicted of Saesee's murder. The jury found Fernandez committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b), and as an active participant in a criminal street gang. (§ 190.2, subd. (a)(22).) The prosecutor's gang expert opined Fernandez was a northern gang member.
Thus, regardless of the theory relied on by the prosecutor in showing the existence of a criminal street gang, we are convinced beyond a reasonable doubt that the erroneous admission of certain hearsay evidence with respect to Tovar's and Flores's convictions was harmless. "[I]t is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." (People v. Livingston, supra, 53 Cal.4th at p. 1159.)
IX. Primary Activities
Defendant further challenges the evidence showing the primary activities of the Visalia-area Norteños. He contends the expert's opinion as to the primary activities of the group was insufficient to conclude the members commit assault with a deadly weapon, shooting at an inhabited dwelling, shooting from a motor vehicle, attempted murder, or murder, consistently and repeatedly.
The jury was instructed that a "criminal street gang" is "any ongoing organization, association, or group of three or more persons, whether formal or informal: [¶] ... [¶] ... That has, as one or more of its primary activities, the commission of Assault with a Deadly weapon, Shooting at an Inhabited Dwelling, Shooting from a Motor Vehicle, Attempted Murder or Murder."
At trial, Officer Pena did not offer direct testimony as to the primary activities of the Visalia-area Norteños. Nonetheless, he did testify the northerners in Visalia "played a pretty big role ... back in 2009, 2010 there was an increase of gang violence with the northerners, a lot of shootings, and they were all conducted by squad members and some were conducted by nonsquad members." Pena's testimony, based on his extensive personal experience investigating gang crimes in Visalia, was sufficient to permit the jury to infer the Visalia-area Norteños commit assault with a deadly weapon, shooting at an inhabited dwelling, shooting from a motor vehicle, attempted murder, or murder as one of the group's "'chief' or 'principal' occupations." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) We reject defendant's assertion this evidence was insufficient to establish the primary activities of the gang.
X. The 30-year Minimum Parole Eligibility Date
The parties agree a 30-year-to-life minimum parole term (§ 186.22, subd. (b)(5)) was improperly imposed on count 1, which carried an LWOP sentence. The parties also agree the minimum parole term is revivable in the event defendant's LWOP sentence is reversed. We agree the minimum parole eligibility date must be stricken.
Section 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Where the defendant commits a violent felony "punishable by imprisonment in the state prison for life," section 186.22, subdivision (b)(5) applies and imposes a minimum term of 15 years before the defendant may be eligible for parole.
In People v. Lopez (2005) 34 Cal.4th 1002, our Supreme Court held that a defendant who commits a gang-related violent felony punishable by life imprisonment is not subject to the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) but, rather, is subject to a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5). (Lopez, at p. 1010.) Section 186.22, subdivision (b)(5) provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Lopez, however, did not involve a defendant sentenced to life without parole. The defendant there was sentenced to a term of 25 years to life for first degree murder. (People v. Lopez, supra, 34 Cal.4th at p. 1005). Here, on the other hand, defendant was sentenced to life without the possibility of parole for first degree murder with two special circumstances. Because a term of life without parole contains no anticipated parole date, it would be illogical to include a minimum parole date on such a term.
Further, our Supreme Court has suggested the minimum parole eligibility provision was never intended to apply to persons sentenced to life without parole. In Lopez, the court examined the history of the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.; STEP Act) and noted a 1988 enrolled bill report written by the Youth and Adult Correctional Agency analyzing the financial impact of the provision stated: "'"This proposed provision relating to life terms [former section 186.22, subdivision (b)(3), now section 186.22[, subdivision] (b)(5)] would apply to all lifers (except life without possibility of parole)."'" (People v. Lopez, supra, 34 Cal.4th at p. 1010, quoting Cal. Youth & Adult Correctional Agency, Enrolled Bill Rep. on Assem. Bill No. 2013 (1987-1988 Reg. Sess.) prepared for Governor Deukmejian (Sept. 1, 1988) p. 2.) The Lopez court concluded "at the time the STEP Act was enacted, the predecessor to section 186.22(b)(5) was understood to apply to all lifers, except those sentenced to life without the possibility of parole." (Lopez, at p. 1010, italics omitted and italics added.) Thus, Lopez suggests the minimum parole eligibility date does not apply to sentences with terms of life without parole.
The Attorney General asks this court to impose and stay the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) in lieu of the minimum parole eligibility term. Under this section, a 10-year enhancement may be applied to any person who commits a "violent" felony (§ 667.5) for the benefit of, at the direction of, or in association with any criminal street gang. (§ 186.22, subd. (b)(1)(C).)
Defendant replies that a stayed 10-year enhancement is not authorized because "the gang voter initiative provides that other laws carrying a greater term (here a gang special circumstance) should be applied." The authority defendant directs us to, Lopez, supra, 34 Cal.4th at page 1009, does not support his argument. (Ibid. [Prop. 21, the Gang Violence and Juvenile Crime Prevent Act of 1998, amended § 186.22, in part, as follows: "'if any provision in this act conflicts with another section of law which provides for a greater penalty or longer period of imprisonment that the latter provision shall apply, pursuant to Section 654'"].) As we understand Lopez, Proposition 21 was intended to ensure that if another penalty conflicted with a penalty imposed under section 186.22, the latter provision must apply. However, nothing precludes the lesser sentence from being imposed but stayed.
Here, the trial court neither imposed the gang enhancement on count 1, nor exercised its discretion to strike the enhancement under section 186.22, subdivision (g). It was required to do one or the other. We will therefore remand the cause to the trial court to consider whether to impose the gang enhancement on count 1 or to strike the enhancement as to that count under section 186.22, subdivision (g). (§ 186.22, subd. (g) ["Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in [section 186.22] ... if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition"].)
XI. Clerical Error on the Abstract of Judgment
Defendant contends, and the Attorney General agrees, the abstract of judgment must be amended to correct a clerical error. The trial court stayed defendant's sentence for the base term imposed on count 5, as well as all attached sentencing enhancements pursuant to section 654. The April 28, 2014, minute order from defendant's sentencing hearing shows count 5 was stayed, however, the abstract of judgment erroneously shows a 25-year unstayed term was imposed for the section 12022.53, subdivision (d) firearm enhancement attached to count 5. We will order the abstract of judgment amended to correct this error.
XII. Cumulative Error
Defendant seeks reversal on grounds of the cumulative effect of all errors alleged on appeal. Under the "cumulative error" doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844; see In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) With the exception of the errors we have identified, we conclude all other errors alleged were individually and collectively harmless.
DISPOSITION
The 30-year minimum parole eligibility date imposed on count 1 is ordered stricken. The cause is remanded for resentencing to allow the trial court to consider whether to impose the 10-year enhancement on count 1 under section 186.22, subdivision (b)(1)(C) or strike it under section 186.22, subdivision (g). On the abstract of judgment, the 25-year term imposed for the section 12022.53, subdivision (d) firearm enhancement attached to count 5 is stayed. The judgment is otherwise affirmed. Following resentencing, the trial court is ordered to amend the abstract of judgment with service to all appropriate agencies to reflect these changes.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
SMITH, J.