Opinion
B307392 B310635
05-02-2022
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN CASTANEDA, Defendant and Appellant; THE PEOPLE, Plaintiff and Respondent, v. EMILIO DELGADO, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant Justin Castaneda. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Emilio Delgado. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Lindsay Boyd and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, No. TA148781 Sean D. Coen, Judge. Affirmed in part, vacated in part, and remanded.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant Justin Castaneda.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Emilio Delgado.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Lindsay Boyd and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
BAKER, J.
Anthony Mendoza-Lopez (Mendoza-Lopez) was shot and killed at a party in 2018. Following a joint trial using two juries, defendant and appellant Justin Castaneda (defendant Castaneda) was found guilty of conspiracy to commit murder and defendant and appellant Emilio Delgado (defendant Delgado) was found guilty of conspiracy to commit murder and a substantive first degree murder charge. Defendants raise a multiplicity of issues on appeal, but, as we will explain, only their arguments concerning gang enhancements the jury found true in connection with the murder and conspiracy charges gain any traction-and that as a result of changes in law worked by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333).
I. BACKGROUND
A. The Offense Conduct
In the evening on October 19, 2018, a local band was performing at a party held in the backyard of a home in Compton, California. The party was advertised online, and guests paid to enter. About 100 people attended. Among those present was Leslie Gonzalez (Gonzalez), who testified at trial pursuant to a grant of immunity.
One attendee testified she was allowed to leave the party "once," but organizers did not permit attendees to go "in and out" at will.
At the time of the party, Gonzalez had been dating William Munguia (Munguia) for a couple months. Munguia was a member of the Lennox 13 criminal street gang (Lennox 13) and so were defendants. Gonzalez knew defendants, who were friends with Munguia, and she had both defendants' telephone numbers saved in her phone.
Gonzalez was still dating Munguia at the time of trial.
Munguia was out of town on the night of the party so Gonzalez went with a group of friends. She communicated with Munguia via phone call and text message during the party. She saw defendant Delgado at the party, but she did not recall speaking to him.
Gonzalez also saw victim Mendoza-Lopez at the party. Gonzalez was previously in a romantic relationship with Mendoza-Lopez, but she was "not too sure" whether Mendoza-Lopez belonged to a gang. Mendoza-Lopez walked by Gonzalez at the party without acknowledging her. Gonzalez informed Munguia that Mendoza-Lopez was at the party in a text message, and Munguia was "upset."
According to Gonzalez, her relationship with Mendoza-Lopez ended on "bad terms" because he "clowned" her by seeing other women.
Gonzalez had been at the party for a couple hours when she heard multiple gunshots. Two men wounded in the shooting, Armando Alonzo and Aleksy Corado, did not see who fired the shots. Officers who responded to the shooting found Mendoza-Lopez had been shot and killed; the officers recovered four bullet casings near his body. An autopsy revealed Mendoza-Lopez was shot three times-in the back, shoulder, and thigh-and the shot to the shoulder, which penetrated his chest cavity, was the one that killed him.
Gonzalez testified she was certain defendant Castaneda was not the shooter. She claimed she was not focused on defendant Delgado but did not think he was the shooter either.
B. Police Investigation, Including Surveillance Video Footage, Phone Records, and Ballistics Evidence
Law enforcement officers investigating Mendoza-Lopez's killing recovered surveillance video from an auto body shop across the street from the home where the party was held. The video showed a car dropping someone off outside the party at 12:58 a.m., a single figure running away a few minutes later, and a crowd of people running away beginning about two and a half minutes after that.
Los Angeles County Sheriff's Department (LASD) deputies arrested defendants, Gonzalez, Munguia, and Jonathan Torres Campos (Torres Campos) in early February 2019. Defendant Delgado, Gonzalez, and Munguia each had a cell phone in their possession when they were arrested. Investigators extracted data from these three phones and analyzed cell phone tower data from service providers. Gonzalez admitted ownership of the phone seized from her and the "contacts" saved in various phones linked defendants and Munguia to certain phone numbers.
Defendant Castaneda's arrest was precipitated, at least in part, because of an unrelated vandalism offense. The record does not reveal what precisely triggered defendant Delgado's arrest, which occurred the following day. Munguia and Gonzalez were separately arrested several days later.
Gonzalez and Munguia exchanged dozens of calls and text messages the night of the party, both before and after the shooting, with Munguia's phone pinging off cell towers in Arizona. Defendant Delgado communicated with Munguia and defendant Castaneda before and after the shooting. Cell tower data indicated defendant Delgado's phone moved toward the location of the party prior to the shooting-arriving by approximately 11:25 p.m.-and away from the party soon after the shooting. Cell tower data indicated defendant Castaneda's phone moved east toward the location of the party prior to the shooting-arriving by approximately 12:38 a.m.-and had moved west again (ending up near Los Angeles International Airport) by 1:25 a.m. An Inglewood Police Department officer who responded to a separate report of gunshots around 1:30 a.m. encountered two men, one of whom was defendant Castaneda, near the scene of that shooting.
The phone number associated with defendant Castaneda was saved under defendant Castaneda's gang moniker in the phone Munguia had in his possession at the time of his arrest.
Two days after Mendoza-Lopez's murder, Hawthorne police arrested three men in a vehicle involved in a separate shooting incident. One of the men arrested was Torres Campos, the car's registered owner. The police found a blue .380 Jimenez Arms semi-automatic handgun in the vehicle. An LASD criminalist analyzed the bullets and casings recovered in connection with Mendoza-Lopez's killing and testified they were fired from the handgun found in Torres Campos's car.
C. Defendants' Recorded Statements
Following their arrests in February 2019, defendants were recorded speaking to one another in a jail transport van. They were subsequently placed in separate jail cells and subject to Perkins operations in which they were recorded speaking with a police informant posing as an inmate. The recordings of these conversations, the highlights of which we next summarize, were later played during defendants' criminal trial.
So named after Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
1. Transport van conversation
The recording of defendants' conversation in the transport van features four male voices: defendant Delgado, defendant Castaneda, and two LASD deputies. Defendants addressed the deputies only in English. Defendants addressed one another in English and in Spanish.
There is significant background noise and some of the speech is unintelligible.
Defendant Delgado was placed in the van first and asked one of the deputies, "If I committed a murder, uh . . . what do you think I'm going to look at? [¶] . . . [¶] You think they might give me life?" The deputy demurred, explaining this was "above [his] pay grade." When defendant Castaneda was placed in the van a short time later, defendant Delgado told him, "I'm going to get everything." Defendant Castaneda replied, "It's the same for me too." Defendant Delgado reassured him, "I'm going to get everything, dog, don't trip."
Defendants discussed what investigators asked them. Defendant Castaneda said he had been asked "what car [he] was in," and defendant Delgado remarked that "they know . . . the auto body shop that was there . . . it's fine though, dog. I'm going to get everything here, dog." Defendant Delgado said investigators asked him about "the thing of that day and everything. How it went down. I told them it was me . . . . [T]hey had everything already. You know, 'cause of Flight, when . . . when . . . he got caught with my [unintelligible] . . . ."Defendant Castaneda's response to this was unintelligible, but defendant Delgado then said, "Me neither. They would have never done [unintelligible] and gave the blower to Hawthorn[e] PD. I wouldn't be right here." Defendant Castaneda "wonder[ed] if the DNA swapped [unintelligible]." Defendant Delgado asked, "On you?" and defendant Castaneda responded, "Yeah, seeing [unintelligible] there's DNA out on the gun. . . ."
A gang expert identified Torres Campos as a member of Lennox 13 who used the moniker "Flight."
Defendant Delgado also told defendant Castaneda "they have uh . . . video tape footage, when we were there, dog. When you and I and Tapatio, dog, when we went out." Defendant Delgado speculated about who might be responsible for their arrest, and defendant Castaneda replied, "now it's [sic] not the time to say whose fault it is, dog. . . . [¶] You may end up in the can, dog." Defendant Castaneda knew he was suspected of a conspiracy crime, but he told defendant Delgado that investigators had not answered his question about what he was said to have conspired to do. He speculated that he might "get fifteen years," and defendant Delgado said "I'm going to get everything." Defendant Castaneda agreed: "Life, dog. It's true, life. With [unintelligible], dog. I hope I'm not here because of that. You think? Yes, right? That's why they're bringing me with you."
The appellate record does not include any additional information about "Tapatio."
After further conversation-much of it unintelligible- defendant Delgado said he was "already fucked" and "[t]he only one I'm going to throw, to the . . . it's Willy, I think. Because he didn't show me anything, dog. He was never . . . he was never real with me." Defendant Delgado told defendant Castaneda "they already knew about your car, I only told them you were there with me. But that you didn't know anything, you know. Well, I didn't tell them you didn't know nothing but you know, it was you and me, you and Tapatio." Defendant Delgado emphasized, "I'm going to eat it, dog," and defendant Castaneda urged him to "[j]ust tell them, I don't know anything . . . ." Defendant Delgado replied he was going to "take . . . down" Willy "[b]ecause he's not . . . doing anything for the hood right now."
Gonzalez referred to William Munguia as "Willie" in her testimony.
2. Perkins operation targeting defendant Delgado
Defendant Delgado was placed in a holding cell with an informant who said he was a "homie" from Lennox 13 in jail for "[c]onspiracy to murder" and "[a]ll kinda shit . . . ." Defendant Delgado told the informant he had been associated with gangs for three years.
Defendant Delgado told the informant, "My homie, they got him for conspiracy and me for a murder." (Defendant Delgado later told the informant defendant Castaneda was "just driving.") When the informant reassured defendant Delgado he would "be all right" because "[t]hey need a lot to . . . get a motherfucker for murder," defendant Delgado responded, "They already got me, though." When the informant asked what defendant Delgado had been told by the police, he replied, "[t]hat, uh, I have court on Monday 'cause I smoked some fool in Compton." The informant asked, "Serious? Oh, you smoked that fool?" and defendant Delgado answered, "Yeah." Defendant Delgado complained "some fool snitched," specifically, "one homeboy and . . . some bitch just making shit up."
When the informant asked which neighborhood the victim was from, defendant Delgado said he was a "Faketeener." ("Faketeen" is a derogatory name for members of the 18th Street gang, one of Lennox 13's rivals.) Defendant Delgado told the informant he used to live in the 18th Street gang's "barrio" and got "jumped" when he was in school. The informant asked if he "hate[d] them motherfuckers," and defendant Delgado replied, "Hell, yeah. I didn't think twice about blowing this . . . pow, pow." The informant asked, "You served him like that?" and defendant Delgado answered, "Yeah."
The informant asked defendant Delgado, "You guys went over there, or what?" Defendant Delgado said, "Hell, yeah. . . . they were at a party." The informant later asked, "How did you know the fools were there, though?" Defendant Delgado explained, "Well, I didn't even know, fool. Some bitch, I was gonna go, uh, dancing . . . . [¶] . . . [¶] It was a party, so I just started getting drunk, and these fools pulled up with a Nos tank and everything. [¶] . . . [¶] And they were just kicking it right there. But it was-it was in, uh, like, Compton. [¶] . . . [¶] And then I seen that fool, and I just let him have it." The informant asked how many shots he fired, and defendant Delgado answered, "I think[ ] three." The other partygoers were "just, like, running like cockroaches."
The informant asked defendant Delgado how he felt after the shooting and whether it was his "first time." Defendant Delgado said he was "scared," his "hand was shaking and shit," and he "went home . . . and told [his] mom" (who was "with the business too").
When the informant again suggested defendant Delgado could "fight" his case "[a]s long as they don't got the gun," defendant Delgado told him "one of the homeboys gave it up." Defendant Delgado clarified, "[h]e didn't give it up, but he got, like, pulled over and-I got stuck." The informant told defendant Delgado he should have disposed of the gun himself, and defendant Delgado explained, "I feel you, but it wasn't even mine. You know?" The informant later speculated that because several months passed between the murder and defendant Delgado's arrest and investigators had "only . . . a little bit of evidence," someone must have snitched. Defendant Delgado replied, "Yeah, they just said they have the blower."
3. Perkins operation targeting defendant Castaneda
Defendant Castaneda was placed in a cell with another informant who identified himself as being "from KAM." Defendant Castaneda said he was from "Barrio Westside Lennox."
The informant told defendant Castaneda "they got me for conspiracy" and, when defendant Castaneda asked whether conspiracy was "bad," the informant explained "[i]t's life, my boy." The informant indicated "it takes a lot" to convict someone of conspiracy, but suggested text messages and phone calls might be sufficient. Defendant Castaneda said, "it was nothing over the phone, bro. It's, like, I was driving." The informant asked, "That's it?" and defendant Castaneda answered, "Yeah, I was driving my homie to the job."
Defendant Castaneda later mentioned that he no longer had "the same phone or the same number" that he had on the night of the murder.
According to defendant Castaneda, his "homie said there was a Faketeen right there" and told him to "'pull up.'" Defendant Castaneda "pulled up . . . with the gun. And this fool just got rushed in, you know I mean, so it was his little job. So, I go pull in. 'I'm gonna wait for you down here.' I pull in with my car." Moments later, defendant Castaneda reiterated this same account, with slightly more detail: "There were some Faketeens at a party. And I was gonna go do my thing, you know, but [¶] . . . [¶] the homie, literally, just got rushed in, like, a week ago. So on the hood, I'm, like-hey, fool, it's his job. I'm, all right. Fuck it. Pull in. And the-the other one didn't step out there, he doesn't-they don't know he was in the car." The informant asked if there were more people in the car, and defendant Castaneda clarified "[t]here was another homie, yeah."
Defendant Castaneda expressed confidence that defendant Delgado planned to take responsibility for the murder and tell investigators defendant Castaneda did not know anything. The informant indicated this would be helpful "[a]s long as [defendant Castaneda's] car just [was] not close by when he did the job . . . ." Defendant Castaneda said he parked about a block away. Defendant Castaneda believed investigators had video of him dropping off defendant Delgado, but the car was not registered to him and "[y]ou can't see me in the car."
When the informant mentioned "they did a DNA swab today," defendant Castaneda said he touched the gun. Defendant Castaneda emphasized that "they didn't catch it on us," but rather "some other homie [who] did another job with it," and asked whether "the fingerprints go over each other." The informant asked what type of gun was used, and defendant Castaneda said it was a .380 Jimenez.
Defendant Castaneda expressed concern that "[t]hey told everybody, fool, 'Oh, yeah, we just smoked a Faketeen.' This one, 'Bouncer took me to smoke a Faketeen.'" Defendant Castaneda complained "[t]oo many people" knew and "it went around on Instagram." "Everybody was talking about it. 'Oh, the fools from Lennox smoked some Faketeen. Fools from Lennox smoked a Faketeen.'"
D. Gang Evidence at Trial
LASD Detective David Chevez testified as the prosecution's gang expert during defendants' trial. He explained Lennox 13 members use various logos featuring the letter "L" and images of airplanes to identify themselves. (The Lennox neighborhood is near Los Angeles International Airport.) Lennox 13's rivals include 18th Street, to which Lennox 13 members refer by the derogatory name "Faketeen."
To satisfy then-prevailing law requiring evidence of predicate offenses to prove gang enhancement allegations, the prosecution introduced records indicating other members of Lennox 13 had been convicted of (1) attempted murder (Pen. Code, §§ 664, 187) for offense conduct committed on or about August 24, 2015, and (2) assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for offense conduct committed on or about April 10, 2018.
Detective Chevez identified several of defendants' and Munguia's tattoos as Lennox 13 tattoos. He also identified defendants, Munguia, and others in photographs displaying Lennox 13 hand signs. Several other law enforcement officers also testified to having encountered defendants in the presence of other Lennox 13 members, including seeing defendants together two days after the murder.
Detective Chevez opined, in response to a hypothetical tracking the facts of victim Mendoza-Lopez's murder, that the crime would be committed for the benefit of, at the direction of, or in association with a criminal street gang. Elaborating, the detective opined communications between the shooter and the person who brought him the gun, as well as the subsequent hand-off of the gun to another gang member who is found in possession of it, would indicate the shooter acted in association with a gang. Detective Chevez opined communications between the shooter and another gang member who did not directly participate in the shooting would indicate it was done at the latter's direction. Finally, Detective Chevez opined the murder would benefit the gang because the victim was a perceived rival and because it would more generally instill fear in the community.
The detective did acknowledge it was generally "frowned upon" to use a gang to settle a personal dispute and that it would "not [be] a good idea" for someone from Lennox 13 to "start a war" in Compton. He opined, however, that the circumstances in this case were "a little different" because Lennox 13 and 18th Street are "big time rivals" who "hate each other."
E. Verdict and Sentencing
Defendant Delgado's jury found him guilty of first degree murder and conspiracy to commit murder. It found true gang enhancement allegations under Penal Code section 186.22, subdivision (b) and firearm enhancement allegations under section 12022.53. At defendant Delgado's sentencing, the trial court acknowledged it had discretion to strike or dismiss the firearm enhancements the jury found true but the court declined to exercise that discretion. The court imposed an aggregate sentence of 50 years to life in state prison: 25 years to life for first degree murder plus a consecutive term of 25 years to life for personal use of a firearm causing death under section 12022.53, subdivision (d). The trial court explained defendant Delgado would not be eligible for parole for 15 years as a result of the gang enhancement. The court also imposed various fines and fees without objection.
Undesignated statutory references that follow are to the Penal Code.
The court imposed and stayed lesser firearm enhancements pursuant to section 12022.53, subdivisions (b) and (c), gang firearm enhancements pursuant to section 12022.53, subdivision (e), and a term of 25 years to life on the conspiracy count.
Unlike defendant Delgado, defendant Castaneda did object to fines and fees imposed on ability to pay grounds. The trial court overruled the objection and explained "there will be earning capacity in prison . . . ."
Defendant Castaneda's jury found him not guilty of murder and guilty of conspiracy to commit murder. It found true gang enhancement allegations under section 186.22, subdivision (b). The trial court sentenced him to 25 years to life for the conspiracy conviction; he too would not be eligible for parole for 15 years as a result of the gang enhancement.
Both defendants appealed from the judgments of conviction, and we consolidated the appeals for decision.
II. DISCUSSION
The Attorney General concedes the jury's gang enhancement true findings should be vacated in light of a change in intervening law. That is correct. The remainder of defendants' various other contentions, however, are unpersuasive as we first summarize and then explain.
Defendants' contention that the trial court abused its discretion in denying their motion to bifurcate trial of the gang enhancement allegations from trial of their underlying offenses lacks merit because much of the gang evidence was relevant to motive and recently enacted legislation requiring bifurcation of a trial where gang evidence is to be presented does not require reversal in this case. Defendants' contention that trial counsel were ineffective because they did not request a limiting instruction as to gang evidence fails because there are valid tactical reasons for the decision. Defendants' reciprocal Aranda/Bruton challenges to admission of the recorded statements made by the other under fail because the statements are nontestimonial and the related challenges that rely solely on state hearsay law are unavailing (as to defendant Delgado's collateral references to defendant Castaneda's co-conspiratorial role) and nonprejudicial (as to defendant Castaneda's statements identifying defendant Delgado as the shooter). The trial court's evidentiary ruling excluding social media messages Munguia sent to unknown parties claiming responsibility for Mendoza-Lopez's murder could not have been prejudicial because the statements were ambiguous and there was strong evidence of defendants' responsibility for the murder. Defendants' related contention that their trial attorneys were ineffective for failing to request a pinpoint instruction on third party culpability lacks merit because the attorneys could reasonably believe no pinpoint instruction was needed for the jury to understand reasonable doubt would exist if someone else were responsible for the killing. Finally, defendant Delgado's sentencing-related contentions, involving a People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) claim and a combined merits and ineffective assistance of counsel attack on the 25-years-to-life firearms enhancement he received, are also meritless.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
A. Gang Enhancements
1. Sufficiency of the evidence under formerly prevailing law
Defendants argue there was insufficient evidence supporting the jury's true findings on the gang enhancements even under former section 186.22, subdivision (b)-i.e., without considering the impact of AB 333's recent changes to the gang enhancement statute. They specifically contend there is no substantial evidence to support a finding that Mendoza-Lopez's murder was committed for the benefit of, at the direction of, or in association with a criminal street gang "with the specific intent to promote, further, or assist in criminal conduct by gang members." (Former § 186.22, subd. (b)(1)), amended by Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022.)
To prove an allegation under section 186.22, subdivision (b)(1), the prosecution must introduce evidence to establish both statutory elements, i.e., that the underlying crime was "gang related" and that the defendant acted with the requisite specific intent. (People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar).) Although defendants believe the murder had nothing to do with Lennox 13 and was motivated by personal jealousy, there is ample evidence supporting a finding that the offense conduct was committed in association with Lennox 13.
A crime is committed "in association with" a gang, and thus qualifies as "gang related," when the perpetrators "c[o]me together as gang members to attack" a victim. (Albillar, supra, 51 Cal.4th at 60, 62.) Here, defendants were called upon by a fellow gang member to kill a person they believed to be affiliated with a rival gang. Defendant Delgado emphasized he did not think twice about killing Mendoza-Lopez due to his perceived "Faketeen" affiliation. Defendant Castaneda characterized the murder as a "job" and explained defendant Delgado carried it out because he had only recently joined the gang. The gun used in the murder was passed around among members of the gang. Defendants had no motive to kill Mendoza-Lopez independent of their gang affiliation, and they relied on their "common gang membership and the apparatus of the gang" to carry out the murder. (Id. at 60.)
The evidence bearing on former section 186.22's specific intent element is even more straightforward. Defendants committed the murder together, and this is substantial evidence that they intended to promote or further criminal conduct (i.e., the charged murder) by gang members. (Abillar, supra, 51 Cal.4th at 68 ["if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members"].)
2. Asserted ineffective assistance of counsel at trial
Defendants contend they received ineffective assistance of counsel at trial because their attorneys did not ask the court to instruct the jury with CALJIC No. 17.24.3. That instruction states evidence of criminal acts by gang members other than the crimes for which the defendant is on trial may only be considered for the limited purpose of determining whether the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. "[A]lthough a court should give [this] limiting instruction on request, it has no sua sponte duty to give one. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez).)
"'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.'" (People v. Carter (2005) 36 Cal.4th 1114, 1189 (Carter); see also Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) We presume that "'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. [The d]efendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.'" (Carter, supra, at 1189.) If the appellate record "'sheds no light on why counsel acted or failed to act . . ., '" a reviewing court on direct appeal must reject an ineffective assistance of counsel claim "'unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.'" (Ibid.; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Much of the gang evidence was relevant to the charged offenses, including to establish defendants' motive to kill Mendoza-Lopez and their connection to the murder weapon. Although "[t]he gang evidence was not admissible, and the jury could not consider it, solely to show that defendants were persons of bad character or had a disposition to commit crimes, . . . an instruction on use of this testimony properly might explain how it could be used as well as how it could not be used." (Hernandez, supra, 33 Cal.4th at 1053.) The prosecution did not suggest the gang evidence showed defendants were generally bad persons, and "[u]nder the circumstances, defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used." (Ibid.)
Defendant Castaneda contends the absence of an objection here is nonetheless inexplicable because his attorney's closing argument emphasized the limited relevance of gang evidence and he thinks this argument had "no bite" without a specific limiting instruction. Defendant Castaneda's assumption that his jury was incapable of applying instructions regarding the prosecution's burden of proof and the elements of the charged offenses is contrary to well established law. (See, e.g., People v. Landry (2016) 2 Cal.5th 52, 95 [jurors are intelligent persons and capable of understanding and correlating all jury instructions]; People v. Yeoman (2003) 31 Cal.4th 93, 139 ["we and others have described the presumption that jurors understand and follow instructions as '[t]he crucial assumption underlying our constitutional system of trial by jury'"].) The decision to forgo an instruction detailing the purposes for which the juries could (and could not) consider gang evidence and to rely instead on the jurors' ability to apply more general instructions can be explained as a matter of trial tactics. That forecloses relief on direct appeal.
3. Denial of bifurcation motion under formerly prevailing law
Defendants moved to bifurcate trial of the section 186.22 gang enhancement from trial of the underlying offenses. Trial counsel contended the killing was motivated by Munguia's personal grievance against Mendoza-Lopez and admission of any gang evidence would therefore contravene relevancy principles and due process guarantees. The trial court denied defendants' bifurcation motion, reasoning defendants' position focused on the weight of the evidence rather than its admissibility. Defendants now contend the trial court's evidentiary ruling was an abuse of discretion and the admission of gang evidence during the non-bifurcated trial deprived them of due process.
In cases tried prior to AB 333's effective date, trial courts had discretion to bifurcate trial of an underlying offense from trial of a section 186.22 gang enhancement if the court believed admission of gang evidence would be too prejudicial. (Hernandez, supra, 33 Cal.4th at 1048.) Such a risk of prejudice, however, is reduced where the gang evidence to be admitted is relevant to "help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at 1049.) A defendant bore the burden to establish the considerations favoring a unitary trial were outweighed by a substantial danger of undue prejudice (id. at 1050), and we review a trial court's ruling on a bifurcation motion for abuse of discretion "based on the record as it stood at the time of the ruling" (People v. Franklin (2016) 248 Cal.App.4th 938, 952).
Here, the gang evidence was highly relevant to proving the charged conspiracy and murder offenses. (Hernandez, supra, 33 Cal.4th at 1049.) Evidence that defendants belonged to the same gang as Munguia, who harbored animosity toward Mendoza-Lopez, was probative of defendants' motive. Evidence of defendants' gang's rivalry with the 18th Street gang and their belief that Mendoza-Lopez associated with that gang provided context for their references to "Faketeens" in recorded statements and additional evidence of motive. Evidence that defendants and Torres Campos all belonged to Lennox 13 established a link between defendants and the gun used to kill Mendoza-Lopez.
In some contrast to the highly relevant evidence of defendants' gang involvement, it is true that the evidence the prosecution presented regarding predicate gang offenses to establish a pattern of criminal gang activity would not have been admissible in a trial of only the underlying offenses. But the predicate offense evidence was "not particularly inflammatory" either (Hernandez, supra, 33 Cal.4th at 1051), especially relative to the charged crimes. It was clear that the predicate offenses "were offered to prove the charged gang enhancement, so no problem of confusion with collateral matters would arise, and they were not evidence of offenses for which a defendant might have escaped punishment." (Ibid.) There was no suggestion that defendants had any role in the 2015 attempted murder or 2018 assault with a deadly weapon, and these convictions were presented without detailed discussion of the offense conduct.
Because much of the gang evidence was probative of the substantive charges and the remaining evidence admitted to prove the section 186.22 allegations was not so inflammatory in comparison to the charged offenses that "it threatened to sway the jury to convict regardless of defendants' actual guilt," the trial court acted well within its discretion in denying the bifurcation motion and no fundamental unfairness resulted from admission of the evidence. (Hernandez, supra, 33 Cal.4th at 1051.) As we have already discussed, the function of the gang evidence was not to show defendants' criminal disposition, but rather to show defendants had the motive and means to kill a man they perceived to be a rival gang member and against whom a fellow gang member bore a grudge.
4. AB 333 and retroactivity
At the time of defendants' trial, section 186.22 defined "criminal street gang" to mean "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [enumerated criminal acts], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Former § 186.22, subd. (f), amended by Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022.) "Pattern of criminal gang activity," in turn, was defined in pertinent part to include commission or conviction of two or more enumerated offenses, "provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense." (Former § 186.22, subd. (e), amended by Stats. 2021, ch. 699, § 3.) There was no statutory requirement that trial of a gang enhancement be bifurcated from trial of the underlying offense; rather, bifurcation was committed to the trial court's discretion. (Hernandez, supra, 33 Cal.4th at 1048-1050.)
While defendants' appeals were pending, the Legislature enacted AB 333, pertinent portions of which took effect on January 1, 2022. Among other things, AB 333 amends section 186.22's definition of "criminal street gang" to require that members collectively (no longer individually or collectively) engage in a pattern of criminal gang activity. (§ 186.22, subd. (f).) AB 333 also amends the definition of "pattern of gang activity" to require proof that a predicate offense relied on by the prosecution to prove the existence of a criminal street gang was a crime that "commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational . . . ."(§ 186.22, subd. (e)(1).) AB 333 also added a new section to the Penal Code, section 1109, that requires, upon a defendant's request, crimes charged against a defendant to be tried separately from a section 186.22, subdivision (b) gang enhancement. (§ 1109, subd. (a).)
As we will later discuss, AB 333 also modified the timeframe within which the predicate offense conduct must have occurred. (§ 186.22, subd. (e)(1).)
We invited the parties to submit supplemental briefs addressing what impact, if any, AB 333 has on these appeals. Defendants contend all of the changes in law worked by AB 333 are retroactive and warrant reversal of their convictions. The Attorney General concedes the retroactive effect of the amendments to section 186.22, but contends section 1109's bifurcation provision should apply only to future trials.
As a general matter, "when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively." (In re Estrada (1965) 63 Cal.2d 740, 746.) However, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at 748 [legislation reducing punishment for escape without force or violence given retroactive effect]; accord, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)
Recent precedent holds, in line with the Attorney General's concession, that AB 333's amendments to section 186.22 apply retroactively. (See, e.g., People v. Lopez (2021) 73 Cal.App.5th 327, 343; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816, 822-823; People v. Delgado (2022) 74 Cal.App.5th 1067, 1087.) That is our conclusion as well. Because the prosecution at trial (understandably) presented no evidence that the predicate gang offenses it relied on to prove Lennox 13 was a criminal street gang were offenses that commonly benefitted Lennox 13-with a benefit that was more than reputational-the gang enhancement findings against both defendants are infirm.
A further consequence also flows from our conclusion that the section 186.22, subdivision (b) gang enhancements cannot stand. The firearm enhancement that the jury found true against defendant Delgado solely on a "principal-armed" theory under section 12022.53, subdivision (e) must also fall. (§ 12022.53, subd. (e)(1)(A) ["The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22"].)
The personal use firearm enhancements (§ 12022.53, subd. (b)-(d)) that the jury likewise found true are unaffected.
Though we shall accordingly vacate the gang enhancements, defendants argue we should not permit retrial of the gang allegations. We have already disposed of several of the arguments they advance in support of that view, which rely on previously existing law. One argument, however, remains: defendants' contention that one of the two predicate offenses was committed too long before the current offense to satisfy AB 333.
Defendants also contend AB 333's new bifurcation-on-request provision, codified at section 1109, warrants reversal. As already explained, however, we have concluded the jury's gang enhancement true findings must be reversed for a different reason. Insofar as defendants further contend that the failure to bifurcate the gang evidence may have influenced the jury's verdict on the conspiracy and murder charges, the contention is not well-taken. For the reasons we have already given, much of the gang evidence was highly relevant to those charges, and the evidence that was not-the proof of the gang predicate offenses- was so circumscribed and relatively unimportant as to be harmless under any standard of review. Accordingly, at least under these circumstances, we do not share the concern of the majority in People v. Burgos (Apr. 15, 2022, No. H045212) __Cal.App.5th__ that it can be "difficult to determine how the outcome of the trial would have been affected if it had been bifurcated to try the gang enhancements separately . . . ."
As amended by AB 333, section 186.22's definition of "pattern of gang activity" requires proof of convictions for at least two enumerated offenses, with at least one of these offenses occurring after the effective date of the Street Terrorism Enforcement and Prevention (STEP) Act (of which section 186.22 is a part) "and the last of th[e]se offenses occurr[ing] within three years of the prior offense and within three years of the date the current offense . . . ." (§ 186.22, subd. (e)(1).) At trial, the prosecution presented evidence that Lennox 13 members were convicted of attempted murder based on conduct occurring in August 2015 and assault with a deadly weapon based on conduct occurring in April 2018.
Defendants misread the statute (as amended by AB 333) to suggest that both predicate offenses must occur within three years of the current offense and contend the August 2015 crime does not qualify because Mendoza-Lopez was murdered in October 2018. Because only one of the predicate offenses need occur within three years of the current offense and the earlier predicate offense need only occur within three years of the later predicate offense (not within three years of the current offense), the predicate offenses presented at trial satisfy section 186.22's temporal conditions. Retrial of the gang enhancements will therefore be permitted.
B. Admission of Defendants' Recorded Statements
The Attorney General contends defendants forfeited their constitutional argument by failing to raise it in the trial court. Because the trial court expressly found Bruton and its progeny did not apply, however, we shall address the issue on the merits. (People v. Thomas (2021) 63 Cal.App.5th 612, 627 ["Given the trial court considered and ruled on the theory now presented on appeal, defendant did not forfeit her claim"].)
The Sixth Amendment's Confrontation Clause, applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." Because "[t]he right to confrontation includes the right to cross-examination[, ] . . . [a] problem arises when a codefendant's confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession." (People v. Lewis (2008) 43 Cal.4th 415, 453.)
The Aranda-Bruton rule declares that the admission of a co-defendant's confession under such circumstances violates the defendant's right of confrontation even if the jury is instructed to consider the statement only against the declarant co-defendant. (Aranda, supra, 63 Cal.2d at 529-531; Bruton, supra, 391 U.S. at 128-136.) As the high court explained in Bruton, the risk that a jury will be unable to disregard such "powerfully incriminating" statements is so great, "and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." (Bruton, supra, at 135.)
The Aranda-Bruton rule rests exclusively on the Confrontation Clause. (See Bruton, supra, 391 U.S. at 125-126; People v. Washington (2017) 15 Cal.App.5th 19, 27 [although Bruton "flirted with the notion that admitting a codefendant's confession under these circumstances might be a denial of due process," it "ultimately [did not] rel[y] upon due process"]; see also People v. Fletcher (1996) 13 Cal.4th 451, 465 [explaining that to the extent Aranda, which did not rely exclusively on the Confrontation Clause, "requires the exclusion of relevant evidence that need not be excluded under federal constitutional law, it was abrogated in 1982 by the 'truth in evidence' provision of Proposition 8 (Cal. Const., art. I, § 28, subd. [(f)(2)])"].) As a consequence, the scope of the rule has contracted along with the scope of the Confrontation Clause more generally, beginning with the high court's holding that the Sixth Amendment's "primary object" is "testimonial hearsay" (Crawford v. Washington (2004) 541 U.S. 36, 53 (Crawford)) and continuing with its clarification that the Confrontation Clause applies only in the testimonial context (Davis v. Washington (2006) 547 U.S. 813, 824 ["It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause"] (Davis); accord, People v. Cortez (2016) 63 Cal.4th 101, 129 (Cortez)).
Because the Confrontation Clause applies only to testimonial hearsay, the question before us is whether defendants' statements in the transport van or their jail cells were testimonial. A statement is not testimonial "unless . . . given in the course of an interrogation or other conversation whose '"primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution."'" (People v. Rangel (2016) 62 Cal.4th 1192, 1214 (Rangel).) Although "'[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers'" under the primary purpose test, the Supreme Court has "'decline[d] to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment.'" (Ibid.) "'In the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to "creat[e] an out-of-court substitute for trial testimony."'" (Id. at 1214-1215.)
Defendants' statements to one another in the jail transport van were non-testimonial. Both our Supreme Court and the high court have explained that statements between prisoners (at least where neither is an informant) are ordinarily non-testimonial. (See, e.g., People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214 ["Private communications between inmates are not testimonial"], overruled on another ground in Rangel, supra, 62 Cal.4th at 1216; Davis, supra, 547 U.S. at 825 [referring to "statements from one prisoner to another" as an example of statements that are "clearly nontestimonial"].) There is nothing about this case that takes it outside of the ordinary rule. Nothing in the appellate record indicates defendants suspected they were being recorded or spoke for any purpose other than to assess the evidence against them. The jail transport van statements are accordingly nontestimonial (see, e.g., People v. Washington, supra, 15 Cal.App.5th at 24, 28), and their admission did not violate the Aranda-Bruton rule.
The statements made by defendants in the context of the Perkins operations, however, require a more detailed analysis. At least from the perspective of the undercover informant working with law enforcement, the primary purpose of the exercise is to solicit statements that may be used at trial. The high court has emphasized, however, that determining whether a statement is testimonial "requires a combined inquiry that accounts for both the declarant and the interrogator." (Michigan v. Bryant (2011) 562 U.S. 344, 367; accord People v. Cage (2007) 40 Cal.4th 965, 984 [testimonial statements are those "given and taken" for the primary purpose of "prov[ing] some past fact for possible use in a criminal trial"].) Thus, the high court placed "statements made unwittingly to a Government informant" alongside statements between prisoners as "clearly nontestimonial." (Davis, supra, 547 U.S. at 825.)
Applying this reasoning, several Court of Appeal opinions have rejected Confrontation Clause challenges to statements obtained in Perkins operations where the declarants were not aware of their interlocutors' role. In People v. Arauz (2012) 210 Cal.App.4th 1394, the Court of Appeal emphasized the declarant "had no belief that his statements were being monitored and would be used in a subsequent trial." (Id. at 1402.) Similarly, in People v. Gallardo (2017) 18 Cal.App.5th 51 (Gallardo), the Court of Appeal held that statements to a jailhouse informant were non-testimonial because "there [was] no evidence indicating [the declarant] knew he was speaking to police informants, or otherwise anticipated his statements would '"be used prosecutorially.'"" (Id. at 68, quoting Crawford, supra, 541 U.S. at 51.) The same is true in this case. Neither defendant Delgado nor defendant Castaneda gave any hint they suspected the Perkins informant was working with investigators. Both appear to have accepted the informant's cover story, there were no sudden changes in attitude or attempts to walk back incriminating statements, and the conversations ended naturally. Under these circumstances, there was no basis to exclude defendants' statements on Confrontation Clause grounds.
Defendants do not attack the Perkins operation statements as inadmissible pursuant to Miranda v. Arizona (1966) 384 U.S. 436.
2. State hearsay rules
Although the Confrontation Clause does not bar admission against one defendant of non-testimonial statements made in the transport van and Perkins operations by the other defendant, such statements still must fall within an exception to state hearsay rules. Hearsay statements are generally inadmissible under California law (Evid. Code, § 1200, subd. (b)), but "the rule has a number of exceptions. One such exception permits the admission of any statement that 'when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.' (Evid. Code, § 1230.) With regard to statements against the declarant's penal interest, the rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.]" (People v. Grimes (2016) 1 Cal.5th 698, 710-711 (Grimes).)
"'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]" (Grimes, supra, 1 Cal.5th at 711.) Although "those portions of a confession inculpating others are not as inherently trustworthy as those portions that are actually disserving to the declarant's interests," courts are not required "to sever and excise any and all portions of an otherwise inculpatory statement that do not 'further incriminate' the declarant." (Id. at 713, 716.) We review the decision to admit evidence under the against-interest exception for abuse of discretion. (Id. at 711.)
Defendant Castaneda's argument that defendant Delgado minimized his own role has no merit. Defendant Delgado consistently claimed primary responsibility for the murder- including by admitting to personally shooting Mendoza-Lopez and emphasizing defendant Castaneda was "just driving." (See, e.g., Cortez, supra, 63 Cal.4th at 126-128 [hearsay statements identifying the defendant as the driver in drive-by shooting were against the declarant's interest because the declarant "'consistently assigned the most blame to himself by admitting he was the shooter'" and references to the defendant "show[ed] premeditation and implicat[ed] [the declarant] in a conspiracy"].)
In his recitation of the procedural history, defendant Castaneda recounts his trial counsel's argument that specific statements defendant Delgado made to the Perkins informant did not disserve his penal interest. It is not clear whether defendant Castaneda means to argue the same points on appeal, but several of the challenged statements were against defendant Delgado's penal interest on their face: acknowledging he "smoked that fool"; he "didn't think twice about blowing this. . . . pow, pow"; and acknowledging investigators had the murder weapon. Other statements regarding defendant Delgado's gang affiliation, his belief that Mendoza-Lopez belonged to a rival gang, his description of the party at which the murder took place, and investigators' attempt "to get [his] homie for conspiracy" all disserved defendant Delgado's penal interest in the context of the other evidence.
Defendant Delgado's contention that defendant Castaneda's statements emphasizing defendant Delgado was the shooter did not specifically disserve defendant Castaneda's penal interest presents a closer question. (See, e.g., Gallardo, supra, 18 Cal.App.5th at 74 [a declarant's hearsay statements identifying himself as getaway driver and co-defendants as shooter and driver in drive-by shooting were too self-serving to satisfy the statement against interest exception]; see also People v. Duarte (2000) 24 Cal.4th 603, 612 [a hearsay statement "'which admits some complicity but places the major responsibility on others[ ] does not meet the test of trustworthiness and is thus inadmissible'"] (Duarte).) Nonetheless, any error concerning the admission of defendant Castaneda's statements against defendant Delgado was harmless.
The erroneous admission of non-testimonial hearsay is state law error analyzed under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Duarte, supra, 24 Cal.4th at 618-619; see also People v. Valencia (2021) 11 Cal.5th 818, 840.) Under Watson, we assess whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, at 836.) It is not reasonably probable that the jury would have reached a different result if it had not heard the statements by defendant Castaneda that defendant Delgado challenges. Defendant Delgado himself admitted to shooting Mendoza-Lopez during the recorded conversations, and the jury surely gave principal weight to these incriminating statements that came from defendant Delgado's own mouth. To be sure, defendant Castaneda's statements might have corroborated defendant Delgado's admissions to a degree, but defendant Castaneda's statements were not even the only corroborative evidence: Gonzalez testified she saw defendant Delgado at the party and cell phone records placed defendant Delgado near the party at the time of the shooting.
Defendant Delgado's contention that defendant Castaneda's testimony was necessary to confirm defendant Delgado's statements referred to the Mendoza-Lopez murder and not to a different incident focuses on a single, ambiguous detail- defendant Delgado's statement that a third person was in the car-and ignores numerous details establishing that his statements concerned the Mendoza-Lopez murder. For example, in his statements to defendant Castaneda and the Perkins informant, defendant Delgado mentioned that the incident occurred in Compton, investigators knew about "the auto body shop that was there," the victim was a "Faketeener, "and investigators had the gun he used. It is not reasonably probable that the jury would have doubted whether defendant Delgado's statements referred to Mendoza-Lopez's murder if it had not heard defendant Castaneda's statements.
C. Exclusion of Evidence of Third Party Culpability
Before trial, the prosecution moved to introduce certain social media posts by Munguia. Among other things, the prosecution sought to introduce a conversation on Instagram between Munguia and an unknown person who said they attended the party where Mendoza-Lopez was killed. When the other person said, "I was right there next to him," Munguia replied, "He had it coming 2yrs ago n now I got em." The other person asked, "Tagger shit?"-apparently inquiring into the motive for the murder-to which Munguia replied, "No he affiliated with pecks n faketeens" and "N talk shit to my girl." The other person said, "Well it's done deal I even checked he's pulse and he was out," and Munguia answered, "Two birds one rock hoe" and "W out even breaking a sweat."
The prosecution's motion included Instagram business records as exhibits. These are not screen shots, but rather metadata indicating the date, time, "item type," "text," author, and recipient(s) of messages sent via Instagram. Although it is not entirely clear from the records, the author and recipient fields-as well as the content of the messages-suggest these were private communications between the designated users as opposed to public posts.
The trial court was not persuaded by the prosecution's argument that these statements by Munguia were admissible as statements by a co-conspirator under Evidence Code section 1223, and the court ruled it would exclude them as hearsay. At trial, defendant Castaneda's attorney asked a detective whether Munguia "bragged about killing" Mendoza-Lopez. The detective answered that he had, and defendant Castaneda's attorney followed up by asking whether Munguia had confessed to killing Mendoza-Lopez. The prosecution objected (despite earlier seeking to admit the statements), and the trial court reiterated its previous ruling that Munguia's statements on social media were not admissible.
Defendant Castaneda's attorney argued the Instagram statements fell under the statement against interest exception to the hearsay rule, but the trial court concluded the exception did not apply. The trial court did not change its ruling when defendant Castaneda's attorney, joined by defendant Delgado's attorney, asked it to reconsider.
Now on appeal, defendants contend the trial court abused its discretion in excluding these statements as hearsay and that this evidence of third party culpability satisfies the threshold relevance requirement. That may be right, but reversal is not required because defendants cannot demonstrate prejudice.
Neither defendant specifically identifies the Instagram messages we have quoted as the focus of these arguments, but these are the only statements we have found in the appellate record to which their arguments apply. (Defendant Delgado refers generally to "Munguia's Instagram statements bragging about the killing"; defendant Castaneda says Munguia "confessed to killing [Mendoza-Lopez] on social media.") In addition to this "confession," defendant Castaneda faults the trial court for excluding text messages in which Munguia apparently told a friend he planned to attend the party. These text messages are not included in the appellate record. Because a detective testified Gonzalez told her Munguia planned to attend the party, however, it is not reasonably probable defendants would have obtained a more favorable result had they been permitted to present text messages to the same effect. (Watson, supra, 46 Cal.2d at 836.)
Defendants contend the Chapman v. California (1967) 386 U.S. 18 (Chapman) standard applies when evaluating the prejudicial impact of the trial court's exclusion of Munguia's statements because they were deprived of their constitutional right to present a defense. "Although completely excluding evidence of an accused's defense theoretically could [infringe on a defendant's constitutional rights], excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Where the trial court has erroneously excluded "'some evidence concerning the defense'" but has not "'refus[ed] to allow [the] [defendant] to present a defense, '" "the proper standard of review is that announced in [Watson], and not the stricter [Chapman] beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension." (Ibid.)
Here, the trial court permitted defendant Castaneda's trial counsel to elicit general testimony that Munguia bragged about killing Mendoza-Lopez. Additionally, Gonzalez testified about her current relationship with Munguia and her past relationship with Mendoza-Lopez, and there was extensive evidence regarding Munguia's membership in Lennox 13 and Mendoza-Lopez's perceived association with a rival gang. Under these circumstances, defendants were not foreclosed from defending on the theory that Munguia personally killed Mendoza-Lopez with no involvement on their part. Reversal is therefore unwarranted unless it is "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at 836.)
Defendants have not demonstrated Munguia's Instagram messages have any greater probative value than the detective's testimony that Munguia bragged about killing Mendoza-Lopez. More important, Munguia's claim that he "got" Mendoza-Lopez must be read in the context of evidence that he communicated with defendant Delgado (a fellow gang member) prior to the murder, cell tower evidence indicating Munguia was in Arizona at the time of the murder, and defendants' recorded admissions of their roles in the murder. Although Munguia's statement is ambiguous viewed in isolation, the only plausible construction in light of all this evidence is that he took credit for arranging the murder, not for personally pulling the trigger. The exclusion of Munguia's Instagram messages was accordingly harmless.
D. Necessity of Pinpoint Instruction Regarding Third Party Culpability
Defendants contend their trial attorneys were ineffective because they failed to request a pinpoint instruction regarding third party culpability. Pinpoint instructions "'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case . . . .'" (People v. Gutierrez (2009) 45 Cal.4th 789, 824 (Gutierrez).) "'They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.' [Citations.]" (Ibid.) Even assuming for argument's sake that it was unreasonable for defendants' trial attorneys to refrain from requesting a pinpoint third party culpability instruction, it is not reasonably probable that this instruction would have produced a different outcome. (Carter, supra, 36 Cal.4th at 1189; see also Strickland, supra, 466 U.S. at 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"].)
Neither defendant details exactly what such an instruction should have said, but such instructions typically emphasize that evidence of third party culpability may support a reasonable doubt as to a defendant's guilt and the defendant need not prove third party culpability beyond a reasonable doubt. (See, e.g., People v. Hartsch (2010) 49 Cal.4th 472, 504 (Hartsch).)
As a general matter, instructions regarding third party culpability "add little to the standard instruction on reasonable doubt." (Hartsch, supra, 49 Cal.4th at 504.) "It is hardly a difficult concept for the jury to grasp that acquittal is required if there is reasonable doubt as to whether someone else committed the charged crimes." (Ibid.) The omission of such an instruction "is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof. [Citations.]" (Ibid.)
The juries in this case were instructed on reasonable doubt and the burden of proof, and the closing arguments focused the jury on defendants' and Munguia's respective roles in the murder. The prosecution argued Munguia directed defendants to target Mendoza-Lopez from Arizona, while defense counsel sought to cast doubt on cell tower evidence establishing Munguia's location and thereby suggest he might have killed Mendoza-Lopez without any involvement by defendants. Both defendants' attorneys emphasized the burden of proof rested solely on the prosecution, and no pinpoint instruction was needed for the juries to understand that reasonable doubt existed if they believed Munguia or Gonzalez killed Mendoza-Lopez. (Gutierrez, supra, 45 Cal.4th at 825 [no reasonable probability of different outcome with third party culpability instruction where "[t]he jury was instructed on reasonable doubt and burden of proof, and could have acquitted [the] defendant had it believed . . . his two unnamed cohorts were responsible for [the victim's] death"].) The ineffective assistance of counsel claim accordingly fails for lack of prejudice.
Defendant Castaneda's trial attorney expressly argued he had no burden to prove third party culpability: "If there is any question in your mind that [Gonzalez] and [Munguia] did it, you have to find my client not guilty. Not saying he's innocent, not saying it. I'm saying they have not proved the charges in this case because if it exists, one reasonable question, by law you would have to find [defendant Castaneda] not guilty." Defendant Delgado's trial counsel was less pithy, but also emphasized the burden of proof and argued Munguia and Gonzalez were "the people that had the motive and bragged about it."
E. Cumulative Error
Defendant Delgado contends that even if the asserted errors in this case are not prejudicial when considered individually, the cumulative effect of those errors requires reversal of his conviction. We have found no errors, and those that we have assumed for the sake of argument would not be significant enough even if considered collectively-and in contrast to the strong evidence of guilt-to warrant reversal. (People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [litmus test for cumulative error is whether defendant Delgado received due process and a fair trial].)
Defendant Castaneda does not specifically join this argument, but because we have assumed one fewer error as to defendant Castaneda's, our reasons for rejecting defendant Delgado's cumulative error argument apply with greater force to defendant Castaneda.
F. Sentencing Claims
1. Firearm enhancement
The jury found true allegations that defendant Delgado personally used a firearm in the murder of Mendoza-Lopez within the meaning of section 12022.53, subdivisions (b) through (d) and also a gang, principal-armed firearm enhancement within the meaning of section 12022.53, subdivision (e). Prior to sentencing, defendant Delgado requested the trial court "depart from the sentencing recommendations and sentence him to no more than 24 years to life in prison so that he will receive his first parole date at 20 years."
As we have already discussed, the section 12022.53, subdivision (e) gang firearm enhancements will be vacated along with the section 186.22, subdivision (b) gang enhancement as a result of AB 333's amendments to the latter statute.
Defendant Delgado was 19 years old when he killed Mendoza-Lopez. He submitted reports by a psychologist discussing his immaturity and "borderline" IQ of 82 and by a social worker discussing his history of drug and alcohol abuse. Although the prosecution's original sentencing memorandum advocated for a sentence of 50 years to life, the prosecution moved to dismiss the firearm and gang allegations at sentencing and recommended imposing a maximum sentence of 25 years to life in prison. The prosecution cited a special directive of the Los Angeles County District Attorney, which, among other things, directs deputy district attorneys to dismiss or withdraw certain enhancements in pending cases.
The trial court acknowledged on the record its discretion to strike or dismiss the firearm enhancements but declined to do so: "I do have discretion to strike and/or dismiss those allegations. Specifically with the gun allegation, I have that discretion pursuant to Penal Code section 12022.53, subdivision (h). And as [defendant Delgado's trial counsel] stated 25 years is a long time, but it's not as long as forever and the actions that [defendant Delgado] took here removed a human life forever. And I cannot fathom what in the interest of justice, if anything, would justify me dismissing these allegations."
The trial court's ruling was within its discretion, particularly in view of section 3051, subdivision (b)(3), which makes defendant Delgado eligible for a youth offender parole hearing during his 25th year of incarceration. (See generally People v. Carmony (2004) 33 Cal.4th 367, 371, 377; People v. Williams (1998) 17 Cal.4th 148, 160-161 [section 1385's concept of "'furtherance of justice'" must be defined "by looking within the [statutory] scheme in question"].) The trial court focused on the gravity of the offense and lack of mitigating circumstances, and this is permissible. While Defendant Delgado emphasizes the trial court's explanation that he "removed a human life forever" would apply in all murder cases, we do not think the court's remark can be torn from the context of the case before it, one involving a premeditated, unprovoked murder of an unarmed stranger in which bystanders were also wounded.
Defendant Delgado's emphasis of the "[e]volving law on sentencing youthful offenders," as reflected in Roper v. Simmons (2005) 543 U.S. 551, Graham v. Florida (2010) 560 U.S. 48, and Miller v. Alabama (2012) 567 U.S. 460, does not compel a different outcome. The trial court acted within its discretion in concluding defendant Delgado's youth was not sufficiently mitigating to warrant a reduced sentence. Defendant Delgado's discussion of the weight the Board of Parole Hearings is to assign to certain mitigating factors at defendant Delgado's youthful offender parole hearing does not control the trial court's exercise of its discretion at sentencing.
Defendant Delgado alternatively contends his trial counsel was ineffective because he did not ask the trial court to strike the 25-to-life enhancement under section 12022.53, subdivision (d) in favor of a 10- or 20-year enhancement under section 12022.53, subdivision (b) or (c). The Attorney General suggests defendant Delgado's trial counsel likely viewed a request to impose a 10- or 20-to-life enhancement as futile in light of the trial court's remarks suggesting it was not inclined to impose anything less than the maximum sentence based on the seriousness of the offense. This argument has merit on direct appeal: defense counsel is not ineffective for failing to make futile requests. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
2. Ability to pay fines and assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant Delgado challenges the trial court's imposition of a $300 restitution fine (§ 1202.4, subd. (b)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8, subd. (a)(1)).
Defendant Delgado does not challenge the trial court's imposition of a $300 parole revocation fine and victim restitution in the amount of $7,743.
Defendant Delgado was sentenced on December 22, 2020, nearly two years after the Court of Appeal issued its opinion in Dueñas. Defendant Delgado did not raise the issue of his ability to pay fines and assessments at his sentencing hearing. That forfeits the issue, and regardless, defendant Delgado will have ample opportunity to attain the ability to pay $370 during his long custodial sentence. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
DISPOSITION
The true findings on the section 186.22, subdivision (b) gang enhancement allegations as to both defendants, and the true finding on the section 12022.53, subdivision (e) firearm enhancement allegation as to defendant Delgado are vacated and remanded for retrial if the People so elect. In all other respects, the judgments of conviction are affirmed.
We concur: RUBIN, P. J., KIM, J.