Opinion
H048484
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. IRVIN CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 18CR03985)
Danner, Acting P.J.
A jury convicted defendant Irvin Chavez of premeditated attempted murder, assaulting three people with a firearm, shooting at an inhabited dwelling, and shooting from a motor vehicle during a June 2018 incident in Watsonville. The jury also found true several firearm allegations. The trial court sentenced Chavez to 15 years to life for the premeditated attempted murder, consecutive to 29 years and four months for the remaining offenses and enhancements.
On appeal, Chavez raises six claims of error. He challenges a 96-day midtrial continuance that occurred principally because of the coronavirus disease 2019 (COVID-19) pandemic, the admission of evidence about his gang affiliation, the admission of recorded jail phone calls as adoptive admissions, the admission of an allegedly speculative jail phone call and related expert testimony about the sale of a gun, and the fairness of his trial due to the cumulative prejudice of the alleged errors. Additionally, in supplemental briefing, he requests a remand for resentencing due to recent changes to Penal Code section 654 made by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518). The Attorney General agrees with Chavez's request for remand.
Unspecified statutory references are to the Penal Code.
For the reasons explained below, we reject Chavez's challenges to his convictions but vacate his sentence and remand with directions for resentencing.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In September 2018, the Santa Cruz County District Attorney filed an information charging Chavez with the attempted murder of Edgar R. (§§ 664/187, subd. (a); count 1), four counts of assault with a firearm (on Edgar R., Noe A., Angel F., and Conrado F., respectively) (§ 245, subd. (a)(2); counts 2, 5-7), shooting at an inhabited dwelling (§ 246; count 3), and shooting from a motor vehicle at Edgar R. (§ 26100, subd. (c); count 4). For count 1, the information further alleged that Chavez committed the attempted murder willfully, deliberately, and with premeditation (§ 664, subd. (a)), personally used a firearm (§ 12022.53, subd. (b)), and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). For counts 1, 2, and 5-7, the information alleged that Chavez personally used a firearm (§§ 12022.5, subds. (a) &(d), 1192.7, subd. (c)(8)). For all counts, the information alleged that Chavez was out of custody on bail or his own recognizance at the time he committed the crimes (out-on-bail allegation) (§ 12022.1).
The information identifies the victims by their initials. For greater clarity and to protect their privacy interests, we refer to the victims and other witnesses using their first names and the first initial of their last names. (See Cal. Rules of Court, rule 8.90(b)(4), (10)-(11).)
On February 11, 2020, the trial court called the case for trial, and jury selection commenced eight days later. The district attorney began presenting evidence to the jury on March 6, 2020, and the People's case-in-chief proceeded for another five court days, through March 13, 2020.
On March 16, 2020, the trial court continued the trial due to the COVID-19 pandemic. The presentation of prosecution evidence recommenced more than 90 days later, on June 16, 2020. Three court days later, on June 22, 2020, the jury started its deliberation. The next day, the jury returned its verdicts.
The jury found Chavez guilty on all counts, except count 7 (assault with a firearm on Conrado F.). The jury also found true the allegation that the attempted murder was willful, deliberate, and premeditated (count 1) and all the firearm allegations (except the allegation in count 1 under section 12022.5, subdivisions (a) and (d), which was not included in the jury's verdict forms).
In a court trial, the trial court found true the out-on-bail allegation.
On September 28, 2020, the trial court held a sentencing hearing. The trial court granted the district attorney's request to dismiss the case that underlay the out-on-bail enhancement, which in turn resulted in dismissal of the enhancement by operation of law. The court sentenced Chavez to an aggregate determinate term of 29 years and four months, consecutive to an indeterminate term of 15 years to life.
Regarding the determinate sentence, the trial court selected count 6 (assault with a firearm on Angel F.) as the principal term and imposed a three-year term plus a consecutive four-year term for the attached firearm enhancement. For count 5 (assault with a firearm on Noe A.), the court imposed a consecutive one-year term and a consecutive 16-month term for the attached firearm enhancement. For count 2 (assault with a firearm on Edgar R.), the court imposed and stayed pursuant to section 654 a three-year term and a consecutive four-year term for the attached firearm enhancement. For count 3 (shooting at an inhabited dwelling), the court imposed and stayed pursuant to section 654 a five-year term. For count 4 (shooting from a motor vehicle), the court imposed and stayed pursuant to section 654 a five-year term.
Regarding the indeterminate sentence for count 1 (premeditated attempted murder of Edgar R.), the trial court imposed a consecutive 15-years-to-life term plus a consecutive 20-year term for the section 12022.53, subdivision (c) firearm enhancement.
Chavez timely appealed.
B. Evidence Presented at Trial
1. Prosecution Evidence
A few years before the subject crimes occurred, Edgar R. and Chavez's younger brother, Angel Chavez, were acquainted when they attended high school together. Because Chavez sometimes picked up his brother Angel from school in their family's blue SUV (which was mostly driven by their mother, Maria Serrano), Edgar became familiar with Chavez and the SUV. During the period of their acquaintance, Edgar and Angel Chavez had a "heated disagreement" about a school art project. Edgar had made a drawing for one of his classes and was told by his friends that Angel Chavez had drawn over it.
Edgar testified at trial about two incidents that happened before the current crime. One incident occurred about six months prior to the crime. During that incident, Chavez and three others drove by Edgar (who was walking to his home's door) in the blue SUV and yelled something out the window. Edgar testified that he was certain Chavez was driving the SUV. Regarding the second incident, Edgar said that one day, while he was picking up his girlfriend, a SUV drove by and a passenger yelled something at him. Edgar testified that he was 60 percent sure that the second incident involved Chavez and his family's blue SUV. Edgar testified further that, prior to the current crime, he had reported to authorities that he was being harassed.
In February 2018, Chavez told Santa Cruz County Sheriff's Sergeant Daniel Robbins that he (Chavez) had been associating with Norteno gang members for about one year. In May, Sergeant Robbins contacted Chavez again. Chavez was wearing red shoes and "a red black[-]brimmed baseball hat with the letter N embroidered on the front." Chavez also had a red bandana in his car and was with a person who had Norteno gang-related tattoos.
Unless otherwise indicated, all dates were in 2018.
Law enforcement officers testified about two principal rival gangs in Watsonville and Santa Cruz County, the Norteno criminal street gang (Northerners) and the Sureno criminal street gang (Southerners). The Nortenos use the color red. The Surenos use the color blue.
On the day of the current crime (Saturday, June 30), cell phone records indicated that Chavez's phone was in the vicinity of his and his family's apartment in Watsonville before 6:10 p.m. At 6:11 p.m., security camera footage showed the family's blue SUV leaving their apartment complex parking lot, but the camera did not capture footage of the driver. The SUV had on its window a parking violation sticker (which was used by the apartment complex's management to enforce parking rules). Between 6:26 p.m. and 6:46 p.m., Chavez's cell phone connected with a cell tower in the vicinity of the crime scene. In addition, Chavez's cell phone records indicated that he was in contact with associates named Edwin and Mario prior to the crime.
The parties stipulated that Chavez's brother Angel was working that day from 8:24 a.m. until 3:35 p.m. (at a restaurant), and from 4:02 p.m. to 7:30 p.m. and 8:05 p.m. until 12:01 a.m. (at a supermarket in Scotts Valley). In addition, Chavez's mother testified that she and her husband (Javier Rojas) were napping in the family's apartment from about 3:00 p.m. or 4:00 p.m. until about 6:40 p.m.
Around the same time, Edgar drove his BMW from his house to that of his friend Noe A. Noe got in the front passenger seat of the car, and Edgar drove them to the nearby house of his cousin, Angel F. When they arrived and parked in the house's driveway, Edgar saw some people in a blue SUV behind them yelling and waving their hands at Angel F., who was standing at the home's front door. One of the passengers in the SUV got out of the vehicle, and the driver reached for something. As Edgar got out of his car, he saw the driver of the SUV pointing a gun out the window. Noe noticed (but did not recognize) two people in the vehicle and saw the driver holding a black gun out the window. After Edgar got out of his car, the driver of the SUV started shooting at him. The shooting continued as Edgar ran toward the home's front door (for a total of about six shots). Angel F.'s father, Conrado F., testified that he was in the home's backyard when he heard possible gunfire. He ran into the house after the last gunshot sounded.
Police recovered five expended .40 caliber cartridge cases and several bullet fragments at the crime scene. They also observed bullet strikes on, in, and around the house. No gun was recovered during the police investigation. In addition, no gunshot residue was detected in samples taken from inside the SUV or from a black hat seized during a search of Chavez's bedroom.
Surveillance video cameras at the house captured the shooting. The footage depicted the driver of the SUV (which had a sticker on its window) shooting at the victims and the passenger who alighted the SUV wearing red shoes and "gesturing" with his waistband. In addition, a neighbor testified that the driver was wearing a black hat with a red symbol.
Edgar identified Chavez at trial as the driver of the blue SUV and the shooter. Previously, when Edgar had called 911 soon after the shooting (at 6:46 p.m. on June 30), Edgar identified the blue SUV and said that he had no idea who the men were. Edgar also said that" '[t]his isn't the first time they followed [him] home and this isn't the first time [he] made a complaint.'" Edgar testified that when he called 911, he had a lot of thoughts going through his head, was still scared, and "didn't want to just speak out not knowing exactly what [he] saw." During the 911 call, Edgar also said that he "didn't even see them." At trial, Edgar explained that he meant he had not seen the men following him as he drove to Angel F.'s house.
Edgar testified further that after the police arrived at the crime scene, he was able to piece together who had shot at him. He looked at the surveillance video and "had an idea" that the person was Angel Chavez's brother, but Edgar could not remember Chavez's name. Edgar texted a friend and asked him if he remembered Angel Chavez's older brother. The friend provided Chavez's name, and then it "clicked" for Edgar that Chavez was the "guy who did this and everything and stuff." In addition, Edgar testified that the blue SUV "was probably like the main thing" that helped to make him "100 percent" certain Chavez had shot at him. Edgar had shared this information with the police officers at the scene and, later, identified Chavez in a photo lineup.
Angel F. testified that neither he nor Edgar was in a gang, but people thought Edgar associated with Southerners. Edgar testified that the neighborhood in which he and Angel F. lived was predominately a Northerner area. Although Edgar was not a Southerner and did not hang out with Southerners, he had family members in the area around Watsonville who hung out or associated with Southerners. Edgar thought that the shooting "might have been Northern-related because the other guys in the other car might be Northern related." Around the time of the shooting, Edgar had been "hit up" by gang members asking if he "bang[s]" or associates with either of the two gangs. Furthermore, Noe A. testified that he did not consider himself to be a Southerner, but he had family members in Mexico who were Southerners. Around the time of the current crime, Noe also had friends who associated with Southerners. After the crime, he got into fights at school with Northerners, and the fights were related to his association with Southerners.
Santa Cruz County Sheriff's Deputy Nicholas Solano responded to the scene of the shooting around 7:30 p.m. on June 30 and watched the surveillance video. Based on his earlier work with the gang enforcement team, Deputy Solano was familiar with Chavez, had had prior contact with him, knew where he lived, and knew the car that he drove (a white Mercedes-Benz). Solano also knew that Chavez associated with Northerners. Solano had no prior knowledge of Edgar or Noe A. based on his gang enforcement work. Upon on his review of the surveillance video, and based on his prior knowledge about Chavez, Solano believed that Chavez was the driver of the SUV and the shooter.
Approximately 45 minutes after the shooting, Chavez received a phone call from an inmate named Jonathan Matias. Chavez told Matias that he was at home but was planning to go out of town to San Jose. According to cell phone records, about an hour after the shooting, Chavez's phone connected with cell towers close to Gilroy and, later, in an area near San Jose.
Around 8:30 p.m. on the night of the crime, Deputy Solano and his partner spotted and stopped a blue SUV. Chavez's stepfather, Javier Rojas, was driving the SUV, and Chavez's mother, Maria Serrano, was a passenger. Serrano testified that during the stop, she called Chavez and told him about the police stop. When Serrano had asked Chavez where he was, he said he was in San Jose and did not know what had happened. Serrano gave police officers conflicting information about Chavez's whereabouts. She first said Chavez was at home and then said he was at work. She did not mention anything about him going to San Jose. Police confiscated Serrano's cell phone and impounded the SUV.
Later that night, police searched the Chavez family's apartment. At some point during the search, Chavez's brother Angel walked quickly towards some officers who were standing outside the apartment. From a distance, in the dark parking lot, Deputy Solano briefly mistook Angel for Chavez. In a bedroom shared by Chavez and his brother Angel, the police found a CD case for rap music by a Northerner gang member, red clothing, red shoes, red hats, and hats with red logos. District attorney investigator Noe Rocha (who testified as an expert on gangs) opined that the items found in Chavez's bedroom were consistent with him associating with Northerners.
On July 3, police arrested Chavez at his apartment complex and seized his cell phone from a truck owned by the Chavez family. Chavez was placed in a county jail unit that housed inmates who associated with Northerner gang members. When police examined Chavez's phone, they discovered that on the day after the crime (July 1), the phone had been used to conduct Internet searches for" 'years for a shooting'" and " 'how many years for a drive-by shooting.'" The police also discovered that the phone had been reset and did not include any call-log entries prior to 8:56 p.m. on June 30.
Within a couple of days following the crime (and after Angel F. had viewed the surveillance footage and been told by Edgar that he thought Chavez was the shooter), Angel F. looked at mugshots posted on the Internet, saw a picture of Chavez, and immediately recognized him as the shooter.
The jury heard evidence about numerous phone calls that Chavez had made while in jail before and during his trial.
The jurors heard audio from the recorded jail calls (some of which was in Spanish), and the audio recordings were admitted into evidence. In addition, transcriptions of the recorded audio (with English translations) were provided to the jurors when listening to the recordings but were not admitted into evidence. The unadmitted transcriptions are reproduced in the clerk's transcript on appeal and most bear a designated call number. Both parties in this appeal rely on the unadmitted transcriptions in their briefing, and neither party has requested that the admitted audio recordings be transmitted to this court for consideration. (See Cal. Rules of Court, rule 8.224.) Under these circumstances, we have utilized the transcriptions that appear in the clerk's transcript to decide Chavez's challenge to the admission of the phone calls.
A few hours after his arrest on July 3, Chavez called his brother Angel from the jail's intake area (call No. 3). During the call, Angel asked Chavez, "How many . . . years do you think you're gonna do then?" Chavez responded, "I don't know fool." Chavez also spoke to his mother, Maria Serrano, and asked her if she still had his cell phone. Serrano told Chavez that the police had searched the family's truck and taken his phone. Chavez responded, "I told you to get it. Why didn't you get it?" After Serrano reiterated that the police had "searched everything," Chavez replied, "Hm. Okay, then." Investigator Rocha noted during his testimony about this phone call that Chavez did not deny his guilt or state that he was innocent.
During two calls on July 6 (first to Edwin (call No. 4)) and next to Mario and a person named Marvin (call No. 5)), and during a call on July 8 (to Edwin and a person named Casper (call No. 6)), Chavez described himself variously as "chillin'" in the county jail. In response to mentions of his mugshot and "fresh" haircut, Chavez responded by saying that "nothin' major" was going on. When Marvin mentioned "a little vacation" during their call, Chavez responded, "Yeah, you know, a little quick vacation, nothin' major, out here on Bahamas, you feel me?" Marvin also mentioned that some information "came out on Facebook" and the news. Chavez responded by saying "Aw, for real?" and "Oh yeah, dude we were tryin' to see it but he didn't come out dude."
During another call on July 8, Chavez phoned Mario and Marvin (call No. 7). Mario told Chavez that he (Mario) "went to check there . . . and they do have some there. They have one pointin[']- one there, . . . about two and the other house . . . also had some. I was checking everything. And yes - yes they do have some, dude. But you know?" Chavez responded, "Nah well, anyway, well let's see what happens, dude. [¶] . . . [¶] . . . I'm going to wait until the 19th [(in court)] to see what they tell me." Investigator Rocha explained to the jurors that this phone conversation underscored the secrecy of gangs and the fact that they do not communicate openly about their activities in order to avoid detection by law enforcement.
On July 14, Chavez called Edwin (call No. 8). Edwin said that "everybody is already asking [him] like, 'fucken [sic] crazy Irvin. I didn't know he would do that shit.'" Chavez laughed and said, "it's all good." Edwin said he had told people that Chavez "got caught for something regular." Chavez laughed. In addition, Edwin said, "I told you dude not to do anything . . . bad in your life dude." Chavez responded, "Ah I'll be out soon fool. Straight up (unintelligible). I'll be out (unintelligible) fight that shit dude."
Later on July 14, Chavez called his mother (call No. 9). Chavez told her that he could be sentenced to life in prison but would not know until he goes to court. Chavez also told his mother not to "worry about all of that," he was "going to accept the consequences that come," and that even if he were to die while incarcerated, "so what, oh well, . . . I chose my own destiny all by myself." Chavez's mother told him to read the Bible, and he told her not to worry because he was "going to get out" and that "[e]verything is fine."
During five phone calls in July with Ryan Lara, Edwin, Mario, and Marvin (call Nos. 10-12, 16 &17), Chavez and his associates spoke about selling an item they first referred to as "it" and then as a "television" and "TV." Lara told Chavez that the item had been sold, and $160 had been received for it-an amount less than Chavez expected. Edwin told Chavez that he (Edwin) "got an amount[,] the money, but the homie will pay me on Friday, but [] I went ahead and gave it to him already 'cause I ain't trying to have it at my pad." Edwin said further, "Also, the homie wanted me to get it back dude, no way. I'm like, well how am I gonna get it back dude. Nobody fucking wanted it when I have it, and I had to have it in my pad, all sketch." While discussing the request that had been made to Edwin to get the item back, Chavez said to Edwin, "Fuck that. You be like that television was already sold, fool, and it wasn't even working no more, fool. [¶] . . . [¶] So, fucking I mean, it's cool, it was a good deal." During another call, Mario reported to Chavez that Edwin had given $160 to Chavez's brother Angel. In a subsequent call, when discussing the money, Chavez said, "I don't even know who the hell he sold the TV to" and "I didn't even know until [Lara] told me that my mom had told him that he took the TV and sold it."
Although the trial court excluded the audio recording of call No. 16 from evidence, the court permitted investigator Rocha to testify about that call.
Investigator Rocha testified that when he first heard these phone calls about selling "it," he thought the "it" was contraband because the participants did not mention what exactly the "it" was. Based on his law enforcement experience, and after analyzing the evidence in this case and listening to hundreds of jail phone calls, Rocha formed an opinion that the "it" and "television"/"TV" was a firearm. On cross-examination, Rocha acknowledged that in his experience, he had never heard the word television or TV used to mean gun, and none of the calls' participants ever explicitly equated those words. On redirect examination, Rocha said the following about Chavez's and Edwin's phone conversation: "It's possible they are talking about [a] tv, but looking at the entire case of the calls and context of all the evidence. It's very unlikely they are actually talking about a tv. In my opinion, it wouldn't be sketch to have a tv in the house."
In another jail call in July (call No. 14), Chavez told Edwin that he (Chavez) "ain't gonna take an L-WOP for this shit." Chavez also mentioned a "[c]ool" seven but said "[i]t all depends on how [] it goes in court and shit, dude. Maybe 10, dude, the max." Chavez explained that he would serve about half of the imposed sentence and be out of prison when he was around 26 years old, noting, "It's not that bad .... I'll be big chillin' no choice." When Chavez asked if Edwin's parents had found out about the shooting, Edwin said he had told his parents that he did not know why Chavez was in jail and said "he probably blasted someone." Chavez responded, "Ha. Yeah, it came out on the fuckin' news all serious dude."
A few hours after the call with Edwin, Chavez called his aunt and cousin (call No. 15). During the call, Chavez's aunt told him that she was praying for God to give him another chance and he should think about everything he did and look ahead because "we can't [] turn back time." Chavez responded, "Yes."
On September 18, Chavez called his mother and stepfather, Javier Rojas (call No. 18). Rojas asked Chavez three times, "[h]ow many cats did you fuck up?" After not responding directly twice (i.e., "Huh?" and "Already what?"), Chavez laughed and said, "Something regular."
On December 30, Chavez called Edwin (call No. 19). Chavez said that he was hoping for "a good deal" when next in court but "[t]hey're being total assholes." Edwin remarked, "Fuck not like . . . you left fucking [] [b]odies on the floor, dude. Get outta here." Chavez responded, "I'm like, fuck it, you know?" Chavez also explained that 40 years in prison had been offered, but "they're probably gonna drop it to like, 15 to 20." Chavez suggested that he would be willing to accept a deal of seven or 10 years.
In seven calls made during February and March 2020 while Chavez's case was in trial, Chavez counseled his mother and brother about not answering questions while on the witness stand and providing certain responses to questions (call Nos. 20-26). When he made four of these calls, Chavez used the jail identification number of a different inmate, not his own identification number.
In calls to his mother, Chavez told her "you can go [to court], but you don't have to say anything." He also told her to say" 'I plead the [F]ifth. I don't [] have anything to say, I already said what I said last time in Court." He further asked her to instruct Rojas and Angel Chavez similarly.
In calls to his brother Angel, Chavez told Angel that he (Angel) likely would be questioned about the family's blue SUV, their jail calls, being picked up at school, and whether he "went to school with the victim" (i.e., "[t]hat fool with the 'Beamer' ") and had had "any altercation with him." Angel acknowledged, "Yeah that fool was a dick to me." Chavez suggested that Angel "just be like, 'nah, I never had any problems with him' and 'well we went our own ways, I went to a different school, and I don't know . . . where he went,' you know." Chavez also told Angel not to lie on the stand and suggested that he "try to remember [to] the best of [his] [] ability" and "[j]ust be like . . . honestly, it's been so long I can't remember so I can't tell you guys a straight answer, you know." Chavez explained to Angel that their mother had said she and Rojas used to pick Angel up at school in the SUV and suggested that Angel "just be like, uh, honestly I don't remember my brother picking me up but I do remember sometimes my dad would pick me up or my mom but I'm not 100% sure in what vehicles they would pick me up because we had different vehicles and I wouldn't really pay attention to that." Chavez also gave Angel some suggestions to pass on to their mother and stepfather for questions about the SUV including," 'Uh, just tell her to admit it but be, like, 'But, . . . my actual answer was [] that car looks similar to mine but it's not mine,'" and" 'It looks like my [] wife's vehicle but . . . I can't say it's hers because I can't see the license plate but it does look similar but I'm not gonna say it's ours.' "
During their last call (on March 13, 2020), Chavez told his brother Angel not to "wear any red." When Angel asked why, Chavez said, "Just don't fool, just wear something else . . . [¶] . . . [¶] . . . I mean I don't care but you know it's just fucking cause I'm fighting that shit."
Angel subsequently testified (on June 16, 2020) that he did not recognize or remember Edgar. He also said he did not remember having a phone conversation with Chavez about the victim. After the jail call was played, Angel testified, "There was one person like bullying me in school. Maybe it was him. I don't really got to know him [sic] or anything like that." Angel testified further that he never drew on Edgar's school art project. Rather, Edgar had scribbled some graffiti over Angel's graffiti that was under a bridge. Angel explained that Edgar "grew hate for me over graffiti. That's when he started bullying me, so that's pretty much all I remember." When asked whether Chavez had told Angel to say that he did not remember a lot and should not answer the prosecutor's questions, Angel responded, "Just doing it because I don't remember anything. Just saying it because I don't remember the events."
2. Defense Evidence
Chavez presented one witness in his defense, Santa Cruz County Sheriff's Office Detective Ryan Farogte. Detective Farogte testified that he and Deputy Solano mistook Chavez's brother Angel for Chavez while standing outside the family's apartment during the search on the night of June 30.
II. DISCUSSION
In his opening brief, Chavez raises five claims challenging (1) the midtrial continuance due in large part to the COVID-19 pandemic, (2) the admission of evidence about his gang affiliation, (3) the admission of certain recorded jail phone calls regarding the crime, (4) the admission of five jail phone calls and related expert testimony regarding a firearm, and (5) the fairness of his trial in light of the cumulative prejudice of the alleged errors. Additionally, in supplemental briefing, Chavez requests a remand for resentencing under section 654 as amended by Assembly Bill 518.
We address Chavez's claims in turn.
A. COVID-19 Continuance and Denial of Mistrial Motions
Chavez contends the trial court abused its discretion and violated his due process right to a fair trial when, after five days of testimony, the court continued the trial for 96 days due primarily to the COVID-19 pandemic and denied his motions for mistrial.
1. Background
On March 4, 2020, the Governor of California declared a state of emergency in response to the threat posed by COVID-19.
On March 6, 2020, the trial court instructed the jury with the pattern pretrial jury instructions (including the cautionary admonitions (see CALCRIM No. 101)), the parties made their opening statements, and the prosecutor began presenting evidence to the jury.
During five court days between March 6 and March 13, 2020, the prosecution presented 17 witnesses, including the four alleged victims, two neighbor eyewitnesses, various law enforcement personnel (including two criminalists and a Department of Justice intelligence/cell phone analyst), Chavez's mother and stepfather, and the manager of the apartment complex where Chavez and his family lived.
At the conclusion of the proceedings on Friday, March 13, 2020, the trial court admonished the jurors as follows: "I'll remind you once again, over the weekend, please do not do any form of research regarding any subject matter or people involved in this case and please do not talk about this case with anyone, please don't form an opinion yet about the case, and we'll see you all Monday at 10:30." On that Friday, the President of the United States declared a national emergency due to COVID-19.
In court on Monday, March 16, 2020, the trial court explained that it had discussed the COVID-19 situation with counsel for the parties and the superior court's presiding judge over the weekend and decided to have the jurors appear to address the topic jointly. Chavez's defense counsel noted that she and the prosecutor had "mutually request[ed] a two-week or three-week continuance." The trial court addressed the COVID-19 situation and some potential timelines for the trial with counsel and the jurors. The court determined that the trial should be continued to April 13, 2020, adding, "at that point if things are worse and we need to reassess, we will do so." Defense counsel confirmed that Chavez had no objection to the continuance.
On March 19, 2020, the Governor issued an executive order requiring California residents to stay home except as needed to maintain the operation of critical infrastructure.
On March 23, 2020, the Chief Justice of California found good cause for the following order (among others): "All jury trials are suspended and continued for a period of sixty (60) days from the date of this order. Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate." (See People v. Breceda (2022) 76 Cal.App.5th 71, 82 (Breceda).)
Sixty days from the date of the Chief Justice's March 23, 2020 order was May 22, 2020.
On April 3, 2020, the trial court held a telephone conference with counsel for the parties and continued the trial to June 8, 2020. That same day, Chavez's defense counsel (by e-mail) moved for a mistrial. Defense counsel wrote: "I do not see it appropriate, in light of [the Chief Justice's] order, to resume trial before the end of May (assuming it is safe at that time). As discussed on our phone call, the Court will be instructing jurors to resume in early June. [¶] Although I agree it is inappropriate for jurors to come to court at this time, I also do not acquiesce to [a] further continuance.... Resuming trial in June is approximately two months longer than the delay permitted by our continuance request back in March, and will result in approximately three months of absence in the middle of a trial with life imprisonment consequences. The toll that three months of absence will take on the memories of jurors is such that a fair trial cannot result.... [¶] If the motion for mistrial is denied, my secondary request will be compliance with the Supreme Court's jury trial moratorium and a resumption of trial as we discussed, likely at the beginning of June." The prosecutor opposed the mistrial motion.
On April 6, 2020, the trial court stated its denial of Chavez's mistrial motion (in writing by e-mail): "As discussed last Friday by phone, the court denies the motion for a mistrial at this time, having found no indication that the Chief Justice's order suspending jury trial contemplated that mistrials would be declared in ongoing trials, and having found no showing of good cause specific to this trial.... Counsel should also please place this matter on the record in open court when we resume the trial on (hopefully) June 8, 2020."
On April 6 and 7, 2020, the trial judge called each juror (either speaking to them personally or leaving a voicemail) and followed up with a letter dated April 7, 2020 informing them that the trial would resume on June 8, 2020.
On April 29, 2020, the Chief Justice issued an order extending the jury trial continuance from 60 to 90 days (i.e., from May 22, 2020, to June 21, 2020). (See Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 168 (Stanley); Breceda, supra, 76 Cal.App.5th at p. 83.)
On May 4, 2020, in an order implementing emergency relief pursuant to the Chief Justice's most recent order, the presiding judge of the Santa Cruz County Superior Court stated that "the emergency circumstances created by the COVID-l9 pandemic manifesting in Santa Cruz County [] make it currently impossible for the Court to safely conduct jury trials, [or] open and staff the courtrooms that would be capable of meeting social distancing mandates."
On May 13, 2020, the trial court sent the jurors another letter reminding them of the June 8, 2020 restart date and its prior admonitions, including not to research the case, talk about the case, or form an opinion about the case.
On May 27, 2020, the trial court held a hearing to discuss the continuance and the impending resumption of Chavez's trial. The court provided background on some relevant prior events, including that it had denied Chavez's mistrial motion. The court also noted that the Santa Cruz County Superior Court had deliberated the issue of reopening the court and "ultimately decided to do a phase[d] reopening starting June 8th and more of a full opening June 15th." Additionally, the trial court proposed that, upon resumption of Chavez's trial, it would reinstruct the jury with pattern pretrial instructions (i.e., the CALCRIM 100 series), allow counsel for the parties to give respective summaries of the evidence that had already been presented, and allow the jurors to review their own notes. The court also agreed with counsel that it should admonish the jurors that counsels' evidentiary summaries are not evidence and a juror's own recollection might differ from counsels' summaries, remind the jurors that they are entitled to a readback of testimony during deliberations, and tell the jurors that they would be able to look at the exhibits.
On June 1, 2020, Chavez again moved for a mistrial. He objected to the resumption of trial on June 8, 2020, "on the grounds that the 84-day, mid-trial delay caused undue and irreversible prejudice to his defense and the fairness of his trial." The prosecutor opposed the mistrial motion.
Chavez's motion acknowledged the following about the initial continuance: "On March 16, both counsel sought and received a continuance to April 13, based on the public health emergency and shelter-in-place orders."
On June 5, 2020, the trial court held a hearing at which two jurors who had expressed concerns about continuing their jury service due to the COVID-19 pandemic appeared remotely. Without objection, the court dismissed the two jurors for cause and replaced them with alternate jurors. In addition, the court addressed Chavez's mistrial motion, saying: "[W]e we are taking every possible way in which to ensure that there's not any kind of significant forgetfulness. We've been over what all of those measures are. They include allowing counsel to give a summation of the evidence. They include me reinstructing the jurors. They include giving the jurors time for their notes. They include reminding the jurors that they will have the opportunity to view all of the exhibits, that they have the opportunity to request read back of any testimony. And so just simply based on the delay, I don't think there's been a specific showing of prejudice and I think we've done everything that would rebut any presumption at this point in terms of the delay." After defense counsel asserted that the proposed measures were insufficient and the delay was inherently prejudicial, the court noted that the defense had not yet presented its case to the jury and some of the prosecution's witnesses were "unforgettable." The court denied the mistrial motion to the extent it was "just based on the delay."
On Monday, June 8, 2020, the jurors returned to court in person, and the trial court informed them that a deputy sheriff had been killed in the line of duty during the preceding weekend. Because no witnesses from the Santa Cruz County Sheriff's Office were available to testify, the court continued the trial for one week to June 15, 2020. Defense counsel noted that she was "not waiving any of the claims" made previously regarding the delay in the case and reiterated, "It has been unduly prejudicial."
The trial did not resume on June 15, 2020, as planned. Two district attorney investigators who had been in court during the preceding week were possibly exposed to the COVID-19 virus. Pending their COVID-19 test results, the trial court continued the trial to the afternoon of June 16, 2020.
Trial resumed on June 16, 2020. The trial court noted, inter alia, the enhanced cleaning procedures, socially distant-seating arrangement, and extra television screens in the courtroom. The court told the jurors that they "need to let [the court] know immediately if anything about this doesn't feel right to you to the extent you would no longer be a fair and impartial juror." The court also told the jurors to notify it immediately "if at any time during the trial, whether due to health, safety issue or any other concern, you believe you can no longer be a fair, impartial juror." The court acknowledged "we have been on a break from this trial for about 12 weeks. I am sure some of you are concerned of your ability to recall evidence you previously heard and saw." The court explained that in order to refresh the jurors' recollections, counsel would have the opportunity to summarize the evidence that had been presented previously, but the summaries themselves were not evidence. The court also told the jurors that they would be given the time to review their own notes and, during their deliberation, they would have access to all admitted exhibits and be able to request a readback of any testimony. In addition, the court read pattern pretrial instructions and described how the trial process would proceed in this case.
By this court's calculation, the number of days that elapsed between March 13, 2020 (the last day that evidence was presented) and June 16, 2020, was 96 days (or 13 weeks and five days, including the end date). The number of days that elapsed between April 13, 2020 (the continuance date agreed to by Chavez) and June 16, 2020, was 65 days (or nine weeks and 2 days, including the end date).
After the prosecutor and Chavez's defense counsel gave their summaries of the evidence, the prosecutor continued presenting the People's case-in-chief. At the conclusion of the day's testimony by two witnesses (Chavez's brother Angel Chavez and a Department of Justice criminalist), the trial court gave the jurors an opportunity to review their notes for "as long as [they] need to."
During four court days between June 16, 2020, and June 22, 2020, the prosecution presented testimony from eight witnesses (i.e., Angel Chavez and seven law enforcement personnel, including one who had testified previously). On June 22, 2020, Chavez presented his defense case (i.e., the testimony of one law enforcement officer).
After jury instructions and closing arguments, the jury began deliberating late on the afternoon of June 22, 2020. The next day (June 23, 2020), the jury sent the trial court questions regarding the names of the four alleged victims and the definition of" 'application of force'" (capitalization omitted). The court responded to the jury's inquiry. Later that day, at 12:20 p.m., the jury returned its verdicts. As detailed ante (part I.A), the jury found Chavez guilty of six of the seven charged counts-acquitting him of the alleged assault with a firearm on Conrado F. (count 7).
2. Legal Principles
A continuance in a criminal case "shall be granted only upon a showing of good cause" (§ 1050, subd. (e)). This standard applies to midtrial continuances. (People v. Winbush (2017) 2 Cal.5th 402, 469.) "Although most cases exploring what constitutes good cause involve continuances requested by a party, the good cause requirement is equally applicable to a midtrial continuance or delay occasioned by the trial court itself. Just as the court cannot grant a party's motion to continue without a showing of good cause, it cannot order a continuance on its own motion without good cause." (People v. Santamaria (1991) 229 Cal.App.3d 269, 277 (Santamaria).)
"' "The cases recognize that, as a general matter, a trial court 'has broad discretion to determine whether good cause exists to grant a continuance of the trial' [citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an 'abuse of discretion' standard." [Citation.] "[I]n making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, 'applying principles of common sense to the totality of circumstances ....'" [Citation.]' [Citation.] '"' "The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion."' [Citation.] In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. [Citation.]" [Citations.]' [Citation.] [¶] Health quarantines to prevent the spread of infectious diseases have long been recognized as good cause for continuing a trial date." (Breceda, supra, 76 Cal.App.5th at pp. 90-91; see also Stanley, supra, 50 Cal.App.5th at p. 169.)
"A criminal defendant has a fundamental constitutional right to a fair trial by an impartial jury. [Citations.] 'It is well settled that legal necessity for a mistrial "arises from an inability of the jury to agree, or from physical causes beyond the control of the court, such as the death, illness, or absence of judge or juror, or of the defendant." [Citation.]' [Citations.]' "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" [Citation.] A motion for a mistrial should be granted when"' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." '" '" (Breceda, supra, 76 Cal.App.5th at p. 89.) The moving party bears "the burden of proof to demonstrate this." (People v. Garcia (2022) 83 Cal.App.5th 240, 248 (Garcia).)
"In cases where a defendant's federal constitutional rights to due process and a fair trial are implicated, courts apply the de novo standard of review. [Citation.] Under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, where a constitutional error is found, reversal is required unless the prosecution can show that the error was harmless beyond a reasonable doubt." (Garcia, supra, 83 Cal.App.5th at pp. 248-249.)
3. Analysis
Relying principally on United States v. Hay (9th Cir. 1997) 122 F.3d 1233, 1236 (Hay), Santamaria, supra, 229 Cal.App.3d 269, and People v. Engleman (1981) 116 Cal.App.3d Supp. 14 (Engleman), Chavez argues that the trial court's denial of his objections to the midtrial continuance and his mistrial motions "was an abuse of discretion because continuing trial after a 96-day midtrial delay, particular[l]y where the People had already presented the bulk of their evidence, violated [his] due process right to a fair trial under the Fourteenth Amendment." He further argues that the trial court's error was "structural," and reversal is required without a specific showing of prejudice. Alternatively, he asserts that the error was prejudicial under Chapman and the trial court's attempts to mitigate the prejudice of the delay were insufficient.
As an initial matter, and despite the Attorney General's failure to make any forfeiture argument, we reject Chavez's assertion that the relevant period of delay here is 96 days. That assertion fails to acknowledge that Chavez agreed to the initial continuance of his trial from March 16, 2020, to April 13, 2020. Because Chavez acquiesced to that continuance, he "cannot now complain the pause he agreed to was error." (People v. Kocontes (2022) 86 Cal.App.5th 787, 879 (Kocontes); see also Breceda, supra, 76 Cal.App.5th at p. 97; People v. Gray (2005) 37 Cal.4th 168, 226 (Gray).) Thus, the relevant period of delay for Chavez's claim is the 65-day pause that occurred without his approval, from the end of the agreed-upon continuance (on April 13, 2020) to the resumption of trial (on June 16, 2020).
A number of other Courts of Appeal have considered and rejected arguments like those Chavez makes here. (See Breceda, supra, 76 Cal.App.5th at pp. 89-100; Garcia, supra, 83 Cal.App.5th at pp. 248-256; see also Kocontes, supra, 86 Cal.App.5th at pp. 878-880.)
Chavez asserts in his reply brief that Breceda is distinguishable from the present case. For the reasons discussed post, we disagree.
In Breceda, the appellate court examined a 73-day midtrial delay due to the COVID-19 pandemic (from March 16, 2020 to May 27, 2020) that began near the end of the prosecution's case-in-chief. (Breceda, supra, 76 Cal.App.5th at pp. 81-85, 94-95.) The Breceda court characterized the delay as "long" but "unavoidable due to the pandemic." (Id. at p. 95.) The court also noted that the record did not support the defendant's assertions regarding the jurors having disobeyed the trial court's standard orders and admonitions. (Ibid.) In addition, the court distinguished Santamaria (11-day delay during deliberations due to judge's absence/schedule), Engleman (three-week delay after prosecution rested but before defendant presented his case to accommodate a visiting trial judge's return to his home court), and Hay (48-day delay after instruction but before summation to accommodate juror vacations) because in all three cases there had been no good cause for the midtrial continuance. (Id. at pp. 95-96.) The Breceda court concluded that the trial court's denial of the defendant's mistrial motion (on the day before his trial resumed) "was not arbitrary or capricious and it did not violate [the defendant's] due process rights." (Id. at p. 97.)
In addition, the Breceda court addressed whether the defendant suffered prejudice, assuming arguendo the trial court erred by denying his mistrial motion. (Breceda, supra, 76 Cal.App.5th at pp. 97-100.) The court rejected the defendant's argument that a 73-day midtrial delay during the COVID-19 pandemic "defies harmless error analysis" (id. at p. 97) and amounts to a structural error falling outside of the Chapman standard. (Id. at pp. 97-99.) The court concluded there was neither actual prejudice nor inherent prejudice in the delay. (Id. at p. 99.) The court explained that although the delay was long, several factors weighed against any prejudice, including good cause and the lack of an alternative for the delay due to the COVID-19 pandemic, lack of case complexity, proper admonitions to the jurors before the delay, assurance that the jurors obeyed the trial court's orders during the delay, and the delay occurred prior to jury deliberations. (Id. at pp. 99-100.)
In Garcia, supra, 83 Cal.App.5th 240, the appellate court considered whether "the trial court erred in denying a motion for mistrial made following a mandatory 103-day midtrial delay as a result of court closure orders issued due to public health concerns related to COVID-19." (Id. at p. 243.) Distinguishing Engleman, Santamaria, and Hay, the Garcia court characterized the delay as mandatory based on the orders issued by the Chief Justice suspending jury trials and the Alameda County Public Health Department. (Id. at p. 252.) In turn, the court stated that the "pertinent issue [] is not whether the trial court erred in ordering a midtrial continuance, but whether it erred in denying the motion for mistrial following the mandatory continuance." (Ibid.) The court then proceeded to consider the timing of the continuance, the complexity of the case, and the trial court's communications with and instructions to the jury. (Id. at pp. 252-256.) Ultimately, based on the record before it, the Garcia court found no abuse of discretion or error in the trial court's denial of the motion for mistrial. (Id. at p. 256.)
In accord with Breceda and Garcia, we determine that the decisions in Santamaria, Engleman, and Hay do not mandate reversal here. (See Breceda, supra, 76 Cal.App.5th at pp. 96-97; Garcia, supra, 83 Cal.App.5th at p. 251.) In those decisions, "the reviewing court explicitly or implicitly found a lack of good cause for the continuance in the first place." (Garcia, at p. 251.) Here, by contrast, the reason for the delay was exceptionally good. (See Stanley, supra, 50 Cal.App.5th at p. 170 ["Given the grave risks to court personnel, jurors, attorneys, and defendant himself that would be created by proceeding in accordance with the normal [speedy trial] timeline, any other conclusion would have been unreasonable in the extreme."]; Elias v. Superior Court (2022) 78 Cal.App.5th 926, 941.) The contested continuance from April 13, 2020, to June 8, 2020, was necessary to implement modifications to the court's facilities and practices to ensure the safe resumption of trial, in accordance with the orders of the Chief Justice and public health officials. Further, the additional one-week continuance from June 8 to June 15, 2020 (due to witness unavailability) and one-day continuance from June 15 to June 16, 2020 (due to the investigators' potential COVID-19 exposure) also rested on good cause. (See Elias, at pp. 938-939; Stanley, at pp. 169-170.) We see no abuse of discretion in the trial court's decision to continue the trial from April 13 to June 16, 2020.
We further discern multiple circumstances that support the trial court's denial of Chavez's objections to the continuance and motions for a mistrial based on delay. Chavez's trial was not particularly complex. The disputed identity issue was straightforward, and the crime was recorded by surveillance cameras. The forensic testimony concerning Chavez's cell phone records and the crime scene/firearm evidence, though detailed, was not highly technical. Hence, the evidentiary summaries provided to the jurors and their review of notes after the delay could sufficiently refresh their recollections of the prior testimony by the four victims, other percipient witnesses, law enforcement personnel, and Chavez's parents. Further, a significant amount of prosecution evidence (including testimony about Chavez's jail phone calls and criminal street gangs) and the defense case were presented after the trial resumed. That the prosecution's case was ongoing and incomplete at the beginning of the delay reduces any likelihood that the jurors would have prejudged the case during the delay. (See Breceda, supra, 76 Cal.App.5th at p. 100; cf. Engleman, supra, 116 Cal.App.3d at p. Supp. 21.)
The trial court's instructions to the jurors before, during, and after the pause in Chavez's trial further preempted any potential unfairness. The court repeatedly admonished the jurors about their obligations prior to the delay, and reminded them during the delay, inter alia, not to form an opinion about the case. In the absence of information suggesting otherwise, we presume the jurors followed the court's admonitions. (See Garcia, supra, 83 Cal.App.5th at pp. 255-256; see also Gray, supra, 37 Cal.4th. at pp. 229-230.) When the trial resumed, the court told the jurors to notify it "immediately" if any of them thought they could no longer be fair and impartial. Furthermore, the verdicts here demonstrate that the jurors in fact withheld their judgment about Chavez's guilt during the pause in the prosecution's case. Specifically, the jurors ultimately acquitted Chavez of assaulting Conrado F. with a firearm (count 7). That verdict accorded with defense counsel's suggestion in closing argument that, because Conrado was standing in his backyard during the shooting in front of his house, he "cannot be a victim of assault with a firearm."
In sum, under the present circumstances, there was good cause to continue the trial to June 16, 2020, and Chavez has not shown that his chances of receiving a fair trial were irreparably damaged. We thus conclude the trial court did not abuse its discretion or err by denying Chavez's objections to the continuance and mistrial motions. We further conclude Chavez has not demonstrated that the delay in his trial violated his due process rights. (See Kocontes, supra, 86 Cal.App.5th at p. 880.)
B. Chavez's Gang Affiliation
Chavez contends the trial court abused its discretion and violated his right to due process by admitting irrelevant and prejudicial gang-affiliation evidence. He argues that his gang status was not relevant to any issue at trial and the "trial court's decision to admit [his] gang status simply because two of the four victims might have extended family members who at one point associated with the Sureno gang was a patent abuse of discretion." Chavez argues further that even if his gang status were relevant to the issue of motive, it should have been excluded under Evidence Code section 352 because of its extremely prejudicial nature. Additionally, he asserts that the erroneously admitted evidence was prejudicial and infused his trial with unfairness.
The Attorney General counters that the evidence about Chavez's gang affiliation was relevant to his motive and intent in shooting and attempting to kill someone suspected of having connections to a rival gang and was not unduly prejudicial. The Attorney General argues further that any error by the trial court was harmless and there was no due process violation.
1. Background
Pretrial, the prosecutor moved in limine to admit gang-related evidence concerning Chavez, the victims of the shooting, and the Norteno and Sureno criminal street gangs as relevant to Chavez's motive and intent. Chavez, likewise, filed an in limine motion to exclude any reference to gangs, arguing that gang evidence was irrelevant (Evid. Code, § 350), not supported by the evidence, and unduly prejudicial (id., § 352).
At a pretrial hearing on the motions, the prosecutor noted that although the victims said they were not gang affiliated, they had uncles who were affiliated with the Surenos, people thought the victims were gang affiliated, and the victims and Chavez "know of each other." The prosecutor argued that Chavez's gang affiliation and the victims' perception that the crime might have been a "Northern affiliated shooting" demonstrated a potential motive to shoot at perceived gang rivals. The trial court ruled that gang evidence was relevant. Regarding the victims' awareness or belief that Chavez was affiliated with Nortenos, the court explained that the prosecutor "does need to lay the foundation before that can come in." The court further explained that it would allow only "very explicit testimony" about a prior contact Chavez had with police during which he wore red shoes and a red hat and was with a person who had Norteno gang-related tattoos. The court also accepted a proposal from defense counsel that the parties would confer "regarding sanitization of how that contact is going to be described to the jury." Further, at defense counsel's request, the court ruled that an Evidence Code section 402 hearing (402 hearing) would be held regarding gang expert testimony.
Later, the prosecutor filed a document listing eight categories of proposed gang evidence, and the trial court held a 402 hearing. Deputy Solano testified at the 402 hearing about the classification of jail inmates who associate with the Norteno gang and the jail's gang housing unit. Based on Deputy Solano's testimony and the gang evidence that the court had deemed admissible, the court ruled that evidence about Chavez having been housed in the jail's gang unit was admissible. The court, however, excluded evidence regarding gang member "regulation of the gang unit," because such evidence would be unduly time consuming or "create a substantial danger of undue prejudice confusing the issues or misleading the jury."
As detailed ante (see part I.B.1), at trial, the prosecution presented evidence regarding Chavez's gang affiliation. The evidence included that Chavez had admitted associating with Norteno gang members, had a prior interaction with police during which he wore red clothing, possessed a red bandana, and was with a person who had Norteno gang-related tattoos, had red clothing and a case for a music CD produced by a Northerner gang member in his bedroom, and was housed in jail with inmates who associated with Northerner gang members. In addition, Deputy Solano testified that he knew Chavez associated with Northerners, and district attorney investigator Rocha testified that the items found in Chavez's bedroom were consistent with such an association. Solano and Rocha also testified generally about the Nortenos/Northerners and Surenos/Southerners in Watsonville and Santa Cruz County. Additionally, victim Edgar R. testified that he thought that the shooting might have been perpetrated by Northerners.
2. Legal Principles
Only relevant evidence is admissible at trial. (Evid. Code, § 350.)"' "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." '" (People v. Jones (2013) 57 Cal.4th 899, 947 (Jones); see also Evid. Code, § 210.) The inferences drawn from the evidence must not be "merely speculative." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)
"In general, '[t]he People are entitled to "introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent." [Citation.]' [Citation.] '[E]ven where gang membership is relevant,' however, 'because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it.' [Citations.] On the other hand,' "[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' [Citation.] On appeal, we review for abuse of discretion a trial court's ruling on whether evidence is relevant, not unduly prejudicial, and thus admissible." (People v. McKinnon (2011) 52 Cal.4th 610, 655 (McKinnon); see also People v. Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun); People v. Albarran (2007) 149 Cal.App.4th 214, 223224 (Albarran).)
Evidence Code section 352" 'requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. "Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.'" '" (Jones, supra, 57 Cal.4th at p. 948.)
"We will not reverse a court's ruling on [relevance and admissibility under Evidence Code section 352] unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Merriman (2014) 60 Cal.4th 1, 74.) Further," '[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.'" (Jones, supra, 57 Cal.4th at p. 949.)
3. Analysis
We are not persuaded that the trial court erred by admitting evidence of Chavez's affiliation with Nortenos/Northerners. We acknowledge that there was no specific evidence that Chavez knew that victims Edgar R. and Noe A. had relatives who were Southerners, people in the community believed Edgar associated with Southerners and had queried him about possible gang association, Noe had friends who associated with Southerners, or the Watsonville neighborhood in which the crime occurred was predominately a Northerner area. Nevertheless, Chavez, through his brother, Angel Chavez, had a prior connection to Edgar and Chavez had previously harassed Edgar in the area of the crime scene. In addition, at the time of the crime, Chavez wore a hat with a red symbol, and the passenger who got out of Chavez's SUV wore red shoes.
Although" 'trial courts should carefully scrutinize [gang] evidence before admitting it,'" (McKinnon, supra, 52 Cal.4th at p. 655), under these circumstances, the trial court could reasonably infer that Chavez at least suspected Edgar was associated with the rival Sureno/Southerner gang. In turn, the court could reasonably conclude that Chavez's own gang affiliation was probative, in that it provided an explanation for why Chavez would shoot at Edgar in that area of Watsonville. While motive was not an element of Chavez's offenses, "it was an intermediate fact" probative of his intent. (See People v. Thompson (2016) 1 Cal.5th 1043, 1114; see also Chhoun, supra, 11 Cal.5th at p. 29.)
Furthermore, the evidence about Chavez's gang affiliation was not unduly prejudicial. Although the evidence was detailed as to both Chavez and the gang culture in Watsonville and Santa Cruz County, the evidence did not include any specific information about other crimes committed by Nortenos/Northerners. Hence, none of the evidence was such a nature that it would inflame the emotions of the jurors or mislead them from their task of deciding whether the prosecution proved Chavez's guilt of the charged crimes. (See People v. Scott (2011) 52 Cal.4th 452, 491; People v. Cowan (2010) 50 Cal.4th 401, 475.)
The circumstances in this case are not like those in Albarran, supra, 149 Cal.App.4th 214, upon which Chavez relies. In Albarran, the defendant was charged with multiple offenses based on his participation in a shooting at the victim's home. He was not charged with a substantive gang offense, but gang enhancements were alleged. (Id. at pp. 217-220.) The trial court permitted the prosecution to introduce gang evidence to prove the gang enhancements and the defendant's motive and intent. (Id. at p. 220.) The jury convicted the defendant of the charged offenses and found the attached gang enhancements true. Thereafter, the court granted a motion to dismiss the gang enhancement allegations for insufficient evidence but rejected the defendant's argument for a new trial on the underlying charges because, absent the gang enhancements, the gang evidence was irrelevant and overly prejudicial. (Id. at pp. 222, 225-226.)
The majority in Albarran held that the trial court erred when ruling on the new trial motion as to the underlying charges because the gang evidence was irrelevant to the shooting's purported motive, i.e., to gain respect and enhance the shooter's reputation. (Albarran, supra, 149 Cal.App.4th at p. 227.) The majority noted that the victim's gang did not have any known or relevant gang rivalries, there was no evidence the shooters ever announced their presence or purpose, and there was nothing inherent in the facts of the shooting to suggest any specific gang motive. (Ibid.) In addition, the majority observed that even if "evidence of [the defendant]'s gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes." (Ibid.) The irrelevant evidence included threats to kill police officers, descriptions of crimes committed by other gang members, and references to the Mexican Mafia prison gang. (Id. at pp. 227-228.) The Albarran majority characterized the irrelevant gang evidence as "overkill" and "so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of [the defendant]'s actual guilt." (Id. at p. 228.) Having decided that the "[c]ertain gang evidence . . . had no legitimate purpose" and "the prosecution did not prove that this gang evidence had a bearing on the issues of intent and motive" (id. at p. 230), the majority further concluded that "[t]his case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232.)
By contrast, in the present case, there was a logical nexus between Chavez's gang affiliation and the shooting: Chavez and his confederate wore red-colored clothing during the crime, and Chavez had previously contacted and harassed Edgar. Also, both Edgar and Noe had relatives and friends who associated with a known rival gang, and people believed that Edgar associated with that rival gang. Thus, unlike the situation in Albarran, the gang evidence was relevant to Chavez's motive and intent. Moreover, the gang evidence was not comparable to "extremely and uniquely inflammatory" evidence admitted in Albarran. (See Albarran, supra, 149 Cal.App.4th at p. 230.) Hence, Albarran does not compel a conclusion that the trial court here abused its discretion under Evidence Code section 352.
Likewise, there was no violation of Chavez's constitutional rights to due process. The admission here of probative evidence was both appropriate and unexceptional, and it did not render Chavez's trial fundamentally unfair. (See Jones, supra, 57 Cal.4th at p. 949; see also People v. Lindberg (2008) 45 Cal.4th 1, 26 (Lindberg); Jammal v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 920.)
C. Jail Phone Calls Regarding the Crime
Chavez contends the trial court erred in admitting 11 jail phone calls as adoptive admissions (call Nos. 3-9, 14, 15, 18 &19). He asserts that the trial court abused its discretion because, during the calls, no one directly or implicitly accused him of committing the charged crimes. He argues further that the court's error violated his due process right to a fair trial and was prejudicial under any standard of prejudice, i.e., under Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818 (Watson).
1. Background
During the COVID-19 continuance, Chavez's defense counsel submitted written objections to the prosecutor's proposed use of phone calls that Chavez had made (before and during trial) from jail. Through his counsel, Chavez asserted generally that the calls contained inadmissible hearsay, lacked relevance, and were unduly prejudicial, time consuming, confusing, and distracting. More specifically, Chavez stated two "global objections" to the calls: "[T]hese clips are hearsay and include hearsay by multiple speakers and at multiple levels," and "the effect of the cumulative presentation of these clips, most of which are meaningless small-talk, emphasizes the way that Irvin Chavez speaks, which comes across to many as 'sounding like a gangster.'" Chavez also raised specific objections to the proposed calls, but most of his objections did not detail precisely which statements within the calls were objectionable.
In turn, the prosecutor filed a motion to introduce portions of several of Chavez's jail phone calls. The prosecutor argued that the calls were admissible as a statement of a party (Evid. Code, § 1220), an adoptive admission (id., § 1221), or a statement of the declarant's then existing mental state (id., § 1250). The prosecutor further asserted "that the statements from the other individuals on the line are not offered for the truth of the matter asserted, and thus are not hearsay, but provide context to the conversation." In addition, the prosecutor explained the relevance and probative value of each call.
The trial court held an extensive hearing on the phone calls, considering each call and the parties' arguments and making rulings about which portions of the calls could be admitted.
At the hearing, Chavez's defense counsel argued that in call No. 3, a question Angel Chavez posed about how much prison time Chavez would get was not a "conclusive" reference to the present prosecution because Chavez had another pending criminal case at that time. The court rejected counsel's argument stating that a conclusive admission of guilt was not necessary and "this [call] comes in essentially within the doctrine of admission."
As to call No. 4 (between Chavez and Edwin), the trial court excluded a portion of the call after defense counsel argued that the excerpt was irrelevant because it captured people other than Chavez talking. The court, however, admitted the rest of the call during which Chavez said he was "chillin'" and had responded dismissively to Edwin's mention of his mugshot.
Regarding call No. 5 (between Chavez, Mario, and Marvin), the trial court explained that "a reasonable person would sort of make some statements denying involvement" in the crime upon being told about information appearing on Facebook and the news.
The trial court excluded (under Evidence Code section 352) a portion of call No. 6 wherein Chavez responded to Casper by saying "yeah, allegedly" when Casper said, "I heard." The court explained that this exchange between Chavez and Casper was too speculative to conclude that Casper was referring to the shooting. The court, however, admitted another portion of the call.
Regarding call No. 7 (between Chavez, Mario, and Marvin), the trial court excluded a portion of the call, rejecting the prosecutor's assertion that it demonstrated Chavez had adopted what other people had said about the shooting. The court explained that that portion of the call was not understandable. As to a second portion of call No. 7, in which Mario seemingly described himself visiting the crime scene to check for cameras, Chavez's defense counsel argued that Chavez did not make "any adoptive admission" in response to Mario's statements. Counsel asserted that, instead, Chavez simply asked follow-up questions (i.e.," 'what happened'" and" 'Oh, for real' ") in response to Mario's hearsay statements. The prosecutor countered that Chavez's questions and additional statement about waiting to see what would happen next in court indicated that Chavez knew they were talking about surveillance cameras and, thus, constituted an adoptive admission. The court agreed with the prosecutor that the second portion of call No. 7 was admissible, ruling that Chavez's response to Mario's statements amounted to "an admission to, I know what house you're talking about and I was there, there was an incident where cameras could have captured what I was doing."
Regarding call No. 8 (between Chavez and Edwin), defense counsel argued that the phrase" 'that shit'" (uttered by Edwin) was too vague to assume the phrase referred to the shooting. The prosecutor retorted that the context of the call indicated that Chavez and Edwin were talking about the shooting. The trial court agreed with the prosecutor.
Regarding call No. 9, defense counsel argued that this conversation between Chavez and his mother about what his prison sentence might be was not "necessarily reflective upon [Chavez's] own guilt or innocence" and alternatively requested that an additional statement by Chavez (telling his mother he was "going to get out . . . don't worry") be included for context. The trial court ruled that the call was admissible and permitted inclusion of the additional statement.
Defense counsel argued that call No. 14 (between Chavez and Edwin) was "vague, confusing and prejudicial, and not particularly valuable" because it was not clear from the call what Chavez and Edwin were talking about. The trial court rejected counsel's argument, explaining that the statements in the call "do tend to show admissions or adoptive admissions."
Regarding call No. 15 (between Chavez and his aunt about, inter alia, praying to God to give him another chance), the trial court rejected defense counsel's argument that the call was not probative because "there's plenty of people who feel like they did something in their past and then receive some kind of punishment in their present that's unrelated but . . . sort of metaphysically appropriate." Nevertheless, the court excluded a portion of this call that it deemed "more speculative."
We reject Chavez's interpretation of the reporter's transcript as indicating the "trial court ruled that [call No. 15] was not admissible." Based on the entirety of the record, we conclude that the trial court admitted one portion of call No. 15 and excluded another.
Regarding call No. 18 (between Chavez, his mother, and stepfather Rojas), defense counsel argued that the word" 'cats'" in the Rojas's repeated questions to Chavez (in Spanish) about how many cats he had" 'fucked up'" was vague and Chavez's responses indicated that he did not understand what Rojas was asking. The trial court rejected counsel's argument and admitted the call-but also ordered that the word "kill" be removed from the transcription because of some uncertainty in the translation from Spanish to English.
Regarding call No. 19 (between Chavez and Edwin about his potential punishment in this case), the trial court ruled the call was admissible with edits to remove a portion it found to be speculative.
As detailed ante (see part I.B.1), the prosecution played audio recordings of call Nos. 3 through 9, 14, 15, 18, and 19 to the jurors.
At the close of evidence, the trial court instructed the jurors regarding adoptive admissions (using CALCRIM No. 357) and evidence of the defendant's statements (using CALCRIM No. 358). The adoptive admissions instruction read as follows: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [and] [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements not been met, you must not consider either the statement or the defendant's response for any purpose." (CALCRIM No. 357.)
2. Legal Principles
"Hearsay is 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' (Evid. Code, § 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule." (People v. Davis (2005) 36 Cal.4th 510, 535 (Davis).)
"The statement of a party is the most straightforward of the hearsay exceptions. Simply stated, and as a general rule, if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under Evidence Code section 352, the statement is admissible against that party declarant. 'The exception to the hearsay rule for statements of a party is sometimes referred to as the exception for admissions of a party. However, Evidence Code section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions.'" (People v. Castille (2005) 129 Cal.App.4th 863, 875-876, fns. &italics omitted (Castille); Evid. Code, § 1220.)
"The adoptive admissions exception generally permits hearsay to be admitted against a party, when that party has adopted it or agreed that a statement, originally made by someone else, is true. The statute contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence, equivocal or evasive conduct. 'Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.' (Evid. Code, § 1221.)" (Castille, supra, 129 Cal.App.4th at p. 876, fns. omitted.)
" 'In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under circumstances that normally would call for a response; and (b) by words or conduct, the defendant adopted the statement as true.' [Citations.] If so, the jury then determines whether these preliminary facts actually occurred." (People v. Dalton (2019) 7 Cal.5th 166, 229 (Dalton); see People v. Riel (2000) 22 Cal.4th 1153, 1189; Evid. Code, § 403.)
"For the adoptive admission exception to the hearsay rule to apply, no 'direct accusation in so many words' is necessary. [Citation.] Rather, it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so." (Davis, supra, 36 Cal.4th at p. 539, citing People v. Fauber (1992) 2 Cal.4th 792, 852.) "Whether the statement constitutes an adoptive admission is 'determined upon the facts and circumstances therein presented.'" (People v. Roberts (2011) 195 Cal.App.4th 1106, 1121.)
"[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and '[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto[.]' [Citation.] We review the trial court's conclusions regarding foundational facts for substantial evidence. [Citation.] We review the trial court's ultimate ruling for an abuse of discretion [citations], reversing only if' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
3. Analysis
We decide that there was substantial evidence to support the admission of call Nos. 3 through 9, 14, 15, 18, and 19, and the trial court did not abuse its discretion in admitting them.
In call No. 3, Angel Chavez's questions about the potential length of Chavez's incarceration and Chavez's responses expressing uncertainty on that sufficiently demonstrate that Chavez understood his brother Angel was talking about incarceration for the shooting and provided Chavez an opportunity to deny involvement in the crime if he believed he had been wrongfully arrested for it.
In the next three calls with his associates (call Nos. 4-6), Chavez responded to mentions of his mugshot by saying that nothing "major" was going on, said he was in jail "chillin'" and on "vacation" when asked about what he was doing, and said "for real?" and that he had tried "to see it" when he was told that some information appeared on Facebook and the news. These exchanges tended to connect Chavez to the crime and offered him an opportunity to deny responsibility for it, but he did not utter any denial.
Call No. 7 included a conversation between Chavez and Mario about Mario's excursion to check if there were "some there" and Mario's resultant discovery that houses in the area he inspected had some "pointin[']." This conversation provides substantial evidence for the trial court's conclusion that the call concerned surveillance cameras at the crime scene, tended to connect Chavez to the crime, and Chavez would have denied involvement in the face of Mario's statements were he not involved.
The references in call No. 8 to" 'that shit,'" getting "caught for something regular," and Edwin's prior advice to Chavez that he "not to do anything . . . bad in [his] life" sufficiently suggest that Chavez and Edwin were talking about the shooting. Chavez responded to these remarks with laughter and by saying he would be "out soon" and would "fight that shit." The trial court could reasonably have concluded that a person in Chavez's position would deny involvement in the shooting when confronted with these statements.
The trial court properly admitted call No. 9 because it contained relevant statements by Chavez about "accept[ing] the consequences that come" from his prosecution and that he "chose [his] own destiny all by [him]self." These statements tended to show Chavez's consciousness of guilt. (See People v. Smith (2015) 61 Cal.4th 18, 48; Evid. Code, § 1220.)
Similarly, the trial court properly concluded that call No. 14 included "admissions or adoptive admissions." Chavez's statements that he would not take a sentence of life for "this shit" and expected to receive a lesser sentence and "be out when [he's] like 26" showed his consciousness of guilt. In addition, Chavez's statement about the crime having been reported "on the fuckin' news all serious" when Edwin commented that Chavez "probably blasted someone" evinces a failure by Chavez to dissociate himself from the crime in the face of Edwin's comment.
In call No. 15, Chavez's aunt alluded to the crime when she talked about God giving Chavez another chance, Chavez reflecting on everything that he had done, and needing to look ahead because they could not turn back time. Chavez responded to his aunt's statements by saying "Yes." The aunt's statements and Chavez's responses sufficiently support the trial court's conclusion that this exchange implied Chavez committed the crime and thus amounted to an adoptive admission.
In call No. 18, Chavez's laughter and ultimate response (i.e., "Something regular") in the face of his stepfather's repeated questions about how many people he had "fuck[ed] up" sufficiently demonstrates that Chavez understood his stepfather's questions about the crime and evaded them.
Finally, the trial court properly admitted call No. 19, in which Chavez talked about his hope for a good plea deal and expressed a willingness to accept about seven or 10 years. Chavez also did not refute Edwin's assertion that Chavez's crime was not as bad as murder. These statements amount to relevant statements of a party (i.e., admissions) and an adoptive admission.
In sum, the circumstances surrounding call Nos. 3 through 9, 14, 15, 18, and 19 supported their admission into evidence, thus permitting the jury to decide whether they should be used against Chavez. We conclude that the trial court did not err in admitting these jail calls and there was no violation of Chavez's constitutional rights to due process. (See Jones, supra, 57 Cal.4th at p. 949; Lindberg, supra, 45 Cal.4th at p. 26.)
D. Jail Phone Calls Regarding a Gun
Chavez contends that the trial court abused its discretion by admitting evidence of five jail calls in which he and his associates discussed selling an item they referred to as" 'it'" and a" 'television'" or" 'TV'" (call Nos. 10-12, 16 &17). Chavez further asserts that the trial court abused its discretion by allowing the prosecution's gang expert to opine that Chavez and his associates were referring to a firearm. In addition, Chavez argues that the erroneous admission of these jail calls violated his due process right to a fair trial and, in combination with the erroneous expert testimony, was prejudicial under both Chapman and Watson.
1. Background
In his motion to introduce Chavez's jail calls, the prosecutor argued that call Nos. 10, 11, 12, 16, and 17 (occurring in July 2018, within one month of the crime) "deal[t] with the sale of [] guns from the shooting." The prosecutor asserted that "[t]hese calls all assist in proving that [Chavez] in fact had the guns, sold them, and wanted the money from their sales. Further, the fact that these calls heavily involve Edwin and Mario, the people who the defendant had significant contact just prior to the shooting is also of extreme relevance and supports the People's position - as the two of them would be the most privy [sic] to the defendant[']s actions at and around the time of the shooting since they were in contact with each other at that time."
At the hearing on the jail calls, the prosecutor further requested that the prosecution's gang expert (district attorney investigator Rocha) be permitted to opine that Chavez and his associates were "talking about the sale of the gun."
Chavez's defense counsel objected to the calls, arguing that they were "vague" because "[n]obody ever says gun, and just because they know what each other is talking about doesn't mean that they are talking about a gun." Counsel noted that on the calls the participants discussed a TV and differing amounts of money and further argued that it would be unfair to infer that the calls were about the sale of a gun because Chavez's various jail calls included "a lot of talk about money" for inmate commissary accounts. In addition, defense counsel objected to investigator Rocha opining that the words used in the calls referred to a gun. Counsel asserted "[t]here's just no expertise for that."
The trial court admitted call No. 10, stating "I think it's a reasonable argument [the] People can make regarding [] getting rid of the gun and I think the defense can argue that we don't know [] that's what it mean[s]." Regarding call Nos. 11 and 12, the court similarly concluded that the discussion in those calls "seems to be relevant with respect to the gun." The trial court excluded under Evidence Code section 352 the audio recording of call No. 16 because of its limited probative value but ruled that investigator Rocha could testify about the call. Regarding call No. 17, the court excluded as cumulative a portion of the call that involved discussion of "getting money to" Chavez's brother but admitted another portion of the call that included references to "selling the TV." In addition, the court said that Rocha could testify to his experience listening to jail calls and "often hear[ing] people using code words for items like guns." The court further stated, "I don't think [Rocha] can say that in this case he believes TV means gun."
Later, the trial court held a 402 hearing regarding whether investigator Rocha could offer his opinion that the discussion in the calls referred to a gun. Defense counsel objected, stating that Rocha had "no more than a hunch" and his expertise could not provide a basis for knowing what "it and tv refers to." Counsel conceded that the prosecutor could "argue they were talking about a gun" but asserted that Rocha's proposed testimony would be "prejudicial speculation." Before Rocha testified at the hearing, the court explained that the word "it comes in as lay opinion based on circumstantial [inference] and tv comes in as expert opinion, . . . if foundation is laid for both of those things."
At the 402 hearing, investigator Rocha testified about his personal and professional experience with Northerners and Southerners and their use of coded language to describe contraband (including firearms) to avoid detection by police. Rocha said his opinion about "tv" being a reference to the gun was based on everything he had reviewed in this case and the timing of these jail calls in relation to the crime. On cross-examination, Rocha acknowledged that he had "never heard of a gun being referred to as a tv before" and "no gangster ever told [him] when I say 'tv' it means gun." Rocha further explained that gangsters had "mentioned [to him that] they come up with different words depending on [what] situation arises." Regarding this case, Rocha said, "You'll hear from the . . . first call, . . . as the gang [is] talking about guns it's the word 'it.' [¶] Eventually as the calls continue[,] they continue to discuss this it. Mr. Chavez [then] brings up that word of television. It takes awhile for the people on the other side of the phone to realize what he's talking about. Lot of times they have a predesignated name and lot of times it's just on the fly."
At the close of investigator Rocha's 402 hearing testimony, defense counsel reiterated her objection, saying: "I stand by the fact [that Rocha] has no evidence of this word being gun. It's just a contextual guess and that's something the jury's at liberty to do when they have the transcripts of phone calls." The trial court responded, "I overrule the objection and allow the opinion testimony to be given."
As detailed ante (see part I.B.1), the prosecution played audio recordings of call Nos. 10, 11, 12 and 17 to the jurors. In addition, investigator Rocha (who was designated as an expert in gangs) testified about those calls, as well as call No. 16. Based on his law enforcement experience and analysis of the evidence and various calls in this case, Rocha opined that when the participants in these calls talked about "it," "the item they [we]re talking about was a firearm." Rocha further opined that, based on the references to "it" and "television" in call No. 12 (between Chavez and Edwin), as well as all the evidence and circumstances of this case and Rocha's own professional experience, the word "television" referred to a gun.
In call No. 12, after Chavez asked Edwin how much money he had received from the sale of an unidentified item, Edwin explained that he had only received some of the money but "went ahead and gave it to [the buyer] already 'cause I ain't trying to have it at my pad." Later in the call, Chavez used the word "television" after Edwin explained that no one "wanted it when I have it, and I had to have it in my pad, all sketch." Days later, when Chavez talked with Mario (in call No. 17), Chavez used the term "TV" again while discussing the sale and money.
2. Legal Principles
Only relevant evidence is admissible at trial. (Evid. Code, § 350.)" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) "Evidence is irrelevant, however, if it leads only to speculative inferences." (People v. Morrison (2004) 34 Cal.4th 698, 711.)
Although lay witnesses are allowed to testify only about matters within their personal knowledge (see Dalton, supra, 7 Cal.5th at p. 231; Evid. Code, §§ 702, subd. (a), 800), expert witnesses are given greater latitude. "An expert may give opinion testimony '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) 'That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] . . . Rather, expert opinion testimony" 'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [those with] ordinary education could reach a conclusion as intelligently as the witness." '" '" (People v. Brown (2014) 59 Cal.4th 86, 101, italics omitted (Brown).)
An expert may testify about "generalized information to help jurors understand the significance of [] case-specific facts. An expert is also allowed to give an opinion about what those facts may mean." (People v. Sanchez (2016) 63 Cal.4th 665, 676.)" 'The subject matter of the culture and habits of criminal street gangs . . . meets [the Evidence Code's] criterion'" for expert opinion testimony. (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) This includes the meaning of such things as tattoos, graffiti, hand signs, and attire. (See People v. Ochoa (2001) 26 Cal.4th 398, 438-439, abrogated on other grounds as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657, disapproved on another ground in Vang, at p. 1049.) Nevertheless, "an expert opinion based on speculation or conjecture is inadmissible." (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) "[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770; see also Evid. Code, §§ 801, subd. (b), 802.)
We review for abuse of discretion a trial court's ruling on whether evidence is relevant. (McKinnon, supra, 52 Cal.4th at p. 655.) Likewise," '[t]he trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (Brown, supra, 59 Cal.4th at p. 101; see also People v. Azcona (2020) 58 Cal.App.5th 504, 513.)
3. Analysis
We are not persuaded that the trial court erred in admitting evidence concerning call Nos. 10 through 12, 16 and 17. These calls included participants who were in contact with Chavez proximate to the shooting and occurred within weeks of the crime. In the third call (No. 12), made 16 days after the crime, Edwin expressed his reluctance about having "it" at his home and explained why he offloaded it for less than full payment. Edwin's statements indicate that the item he and Chavez were discussing placed him in jeopardy. Further, the police did not recover a gun during their investigation. Under these circumstances, the trial court properly concluded that a reasonable inference arising from these calls was that the item first referred to by Chavez and his associates as "it" and then as a "television"/"TV" was a gun used during the crime. We thus conclude that the court appropriately exercised its discretion when it allowed the jurors to consider these five jail calls that involved the sale of this item. We further conclude that the admission of these relevant calls did not violate Chavez's due process right to a fair trial. (See Jones, supra, 57 Cal.4th at p. 949; Lindberg, supra, 45 Cal.4th at p. 26.)
Although the trial court properly admitted the jail calls, we agree with Chavez that the trial court erred by allowing investigator Rocha to opine about the meaning of the terms "it" and "television"/"TV." Rocha's ultimate opinion equating those terms with a gun went beyond opining about" 'the culture and habits of criminal street gangs'" (Vang, supra, 52 Cal.4th at p. 1044) and was too speculative to be admissible. We acknowledge that the evidence shows Edwin and Mario were in contact with Chavez around the time of the crime, and the discussion in call No. 12 between Chavez and Edwin about Edwin's "sketch" predicament supports that the item was contraband and possibly a gun. However, there is nothing that specifically weighs in favor of the contraband being a gun. Further, that gang members and associates use coded language also does not directly bolster Rocha's specific opinion equating a gun with the words used in the calls. For these reasons, we conclude that Rocha's ultimate opinion about the meaning of the terms "it" and "television"/"TV" should have been excluded.
Nevertheless, we are persuaded on this record that the error in allowing investigator Rocha to opine about the meaning of "it" and "television"/"TV" was not prejudicial. Applying the Watson standard to this evidentiary error (which does not amount to a constitutional due process violation), it is not reasonably probable that a result more favorable to Chavez would have been reached in the absence of the error. (See People v. Pearson (2013) 56 Cal.4th 393, 446; see also Lindberg, supra, 45 Cal.4th at p. 26.)
There was abundant evidence presented by the prosecution supporting Chavez's identity as the shooter. Edgar R. and Deputy Solano testified about their identification of Chavez soon after the crime occurred. The surveillance video from Chavez's apartment complex and the crime scene, as well as the cell phone record evidence corroborated that Chavez was the perpetrator. In addition, Chavez made statements in his jail calls that further substantiate his culpability for this crime. Furthermore, the trial court instructed the jury with CALCRIM No. 332, which reminded the jurors that they need not accept investigator Rocha's testimony as true or correct.
In sum, given the overwhelming evidence that Chavez was the shooter, it is not probable that he would have obtained a more favorable result absent investigator Rocha's opinion about the meaning of the terms "it" and "television"/"TV" in the jail calls.
E. Cumulative Prejudice
Although we have concluded that the trial court erred in admitting investigator Rocha's opinion that the reference in the calls to "it" and "television"/"TV" was to a gun (see part II.D.3, ante), we have determined that Chavez was not prejudiced and discerned no other error regarding Chavez's convictions. We in turn reject Chavez's claim of cumulative prejudice resulting from the asserted errors. There is no prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
F. Section 654 and Assembly Bill 518
At Chavez's September 2020 sentencing hearing, the trial court sentenced him on count 1 (premeditated attempted murder of Edgar R.), count 5 (assault with a firearm on Noe A.), and count 6 (assault with a firearm on Angel F.). In addition, the court imposed and stayed prison terms, pursuant to section 654, for count 2 (assault with a firearm on Edgar R.), count 3 (shooting at an inhabited dwelling), and count 4 (shooting from a motor vehicle).
In supplemental briefing, Chavez requests that we remand his case for resentencing based on recent changes to section 654 made by Assembly Bill 518. Effective January 1, 2022, section 654 was amended by Assembly Bill 518. (Stats. 2021, ch. 441, § 1.) As amended, section 654, subdivision (a), provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Italics added.) Previously, where section 654 applied, the sentencing court was required to impose the term that "provides for the longest potential term of imprisonment" and stay execution of the other term. (§ 654, former subd. (a).)
The Attorney General concedes that the legislative changes to section 654 apply to Chavez because his judgment is not yet final. We agree. (See People v. Mani (2022) 74 Cal.App.5th 343, 379; People v. Sek (2022) 74 Cal.App.5th 657, 673.)
In addition, Chavez and the Attorney General agree that this case should be remanded for resentencing. The present record does not" 'clearly indicate[]'" that the trial court necessarily would have sentenced Chavez the way it did had it possessed the discretion afforded by amended section 654. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also People v. Jones (2019) 32 Cal.App.5th 267, 273.) We agree with the parties that remand is appropriate so the trial court may fully resentence Chavez anew under current law with the benefit of that discretion. (See People v. Henderson (2022) 14 Cal.5th 34, 56.) We express no opinion on how the court should exercise its sentencing discretion.
III. DISPOSITION
The judgment is reversed, Chavez's sentence is vacated, and the matter is remanded to the trial court solely for resentencing consistent with this opinion under current law, including Penal Code section 654 as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.). Chavez's convictions are affirmed.
I CONCUR:
Lie, J.
WILSON, J., Concurring.
I concur in the result reached in the majority opinion that the judgment against Chavez must be reversed for the limited purpose of resentencing under current law. I write separately to express my concerns about the admission of gang evidence in this case. As discussed below, I conclude the admission of gang evidence was erroneous but reversal is not required because it is not reasonably probable that Chavez would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
During pretrial motions, the prosecutor requested that limited gang evidence be admitted because the "victims say . . . their uncles are Sureno affiliated . . . but [the victims are] not gang members." Moreover, the victims "said they felt like this was gang affiliated based on how it all went down." The prosecutor went on to explain that "[t]he fact that the other individual in [Chavez's] car that gets out is wearing red shoes" and the police later find Norteno indicia in Chavez's home "is consistent with someone who backs Northerners." Assuming proper foundation could be established, the trial court allowed the admission of limited gang evidence.
Three victims testified during the jury trial. Edgar R. testified that a few years prior to the subject shooting, Chavez's younger brother, Angel C., and he attended the same high school. Angel C. and Edgar R. "would hang out . . . a lot" between class breaks. At some point, Angel C. and Edgar R. were involved in a "heated disagreement" about a high school art project and they ultimately stopped talking. Following that disagreement, Edgar R. testified about two incidents involving Chavez. Within six months prior to the shooting, Chavez and three others drove by Edgar R.'s home and yelled something out the window. On a different occasion, while Edgar R. was on his way to pick up his girlfriend, he was 60 percent certain that Chavez again drove by and a passenger yelled something at him. On both occasions, Chavez was driving a blue SUV which Edgar R. associated with Chavez's family. After the shooting, Edgar R. testified that he had previously complained to the authorities about being "harassed."
When asked by the prosecutor about gangs in his neighborhood, Edgar R. testified he saw more "Northern" graffiti. Edgar R. stated that, although he had family members who associated with Southerners, he was not a gang member and did not associate with people who associated with Southerners, including those family members. Edgar R. thought the shooting "might have been Northern-related because the other guys in the car might be Northern related," but he did not believe he was being targeted because of his relatives. Edgar R. never had issues with Nortenos.
Edgar R.'s cousin and victim, Angel F., testified that he and Edgar R. were not in a gang and they both stayed away from gangs. In fact, Angel F. was not aware of any of Edgar R.'s other relatives who were "Southerners" or "Southsiders." The prosecutor asked, "To your personal knowledge, do people think he associates with Southerners?" After the trial court overruled a defense objection to that question based upon "foundation and speculation," Angel F. responded "Yes." The prosecutor next asked "Do you know why people think that?" and Angel F. responded, "No." Angel F. testified that the other victim, Noe A., also stayed away from gangs.
The third victim, Noe A., testified that Edgar R. and Angel F. do not associate with gangs. When interviewed by the police after the shooting, Noe A. was asked if he had any gang affiliation and he told them that he had family members in Mexico who were "Southerners." Noe A. testified he was not a gang member but had friends who were "Southerners." After the shooting, he got into fights at school with people who he believed were "Northerners."
"Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case. (Evid. Code, § 210.) Inferences drawn from the evidence must be logical and reasonable, not merely speculative." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) The California Supreme Court has made clear that gang evidence is admissible, even in non-gang cases, so long as that evidence is"' "relevant to an issue of motive or intent." '" (People v. McKinnon (2011) 52 Cal.4th 610, 655.) However," '[e]ven where gang membership is relevant,' . . . 'because it may have a highly inflammatory impact on the jury trial courts should carefully scrutinize such evidence before admitting it.'" (Ibid.) In such cases, the probative value of such evidence in establishing a defendant's motive"' "generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." '" (Ibid.)
For the sake of this discussion, I will assume that Chavez is a Norteno or closely associated with Nortenos. I will also assume that one or more of the victims has family or friends associated with Surenos. The problem in this case is that there is no evidence of a direct or indirect connection between these two disparate facts. Both facts can be true and still be entirely unrelated to the shooting. Unfortunately, in some of our communities, having family members who are associated with gangs is not uncommon. Confirming this reality, the district attorney investigator and gang expert, Noe Rocha, testified that he grew up in the Watsonville area and had family members who were both "Northerners" and "Southerners." Allowing gang evidence to be introduced against a defendant by simply connecting the victim to an unnamed relative in a rival gang would undoubtedly create a dangerously wide pathway for the admission of this impactful evidence.
Furthermore, there was no evidence that Chavez personally believed or was in a position to know Edgar R. was associated with Surenos or had relatives who were Surenos. There was no evidence that Angel F. was associated with Surenos or that Chavez believed or would have associated him with Surenos. Although Noe A.'s fights after the shooting involved Nortenos and he was friends with Surenos, there was no evidence that any of his school fights were related to the subject shooting or were in any way associated with Chavez.
The evidence was devoid of any logical and reasonable indicators of gang motivation. For example, there was: (1) no evidence that any of the victims have worn clothing or other indicia associated with Surenos before, during, or after the shooting. (People v. Williams (1997) 16 Cal.4th 153, 193-194 [motive to shoot victim based upon him wearing colors of opposing gang]); (2) no evidence that either before or after the shooting anyone made statements, hand gestures, or any other cues which could associate the shooter or victims with this being a Norteno- or Sureno-motivated crime. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1222 [defendant" 'threw his fingers up'" and said" 'E.Y.C.'" shortly before shooting victim]); and (3) no evidence that the dwelling which was being fired upon was known to be associated with Nortenos or Surenos. (People v. Duong (2020) 10 Cal.5th 36, 42 [shooting occurred at a known gang hangout].)
The evidence of what Chavez likely knew about Edgar R. was, as follows: Chavez's younger brother and Edgar R., who attended the same high school, did not get along and had on one occasion gotten into a "heated disagreement" about a school art project. Chavez's motivation for the shooting could thus easily have been simply to retaliate against his brother's enemy, whether that person was associated with Surenos or not. If gang evidence is being utilized against a defendant to establish motive or intent alone in a criminal case, courts must ensure that such an inference can be supported by sufficiently non-speculative and admissible evidence.
I am also not persuaded that Edgar R.'s belief that the shooting was gang related and evidence that one of the shooters wore red shoes is sufficient to move this outside the realm of mere speculation. In my opinion, allowing gang evidence without any indication of how Chavez could reasonably have had knowledge of the victims' direct or indirect gang associations or any other non-speculative gang motivated purpose, caused any "probative value [to be] substantially outweighed by the probability that its admission . . . [would] create substantial danger of undue prejudice ...." (Evid. Code, § 352.) Notwithstanding our deferential abuse of discretion standard of review, I believe it was error to admit gang evidence for the purpose of motive or intent in light of these facts.
The import of what Chavez and his passenger were wearing during the shooting is equally ambiguous. One assumes gang members wear their colors frequently and not just when they are committing gang related offenses.
I am mindful that, in many cases, gang evidence may be relevant to the circumstances of the charged offenses, including for the purpose of establishing motive, and therefore properly admitted. However, as our courts have found, gang evidence is inherently prejudicial, and a jury may be more readily disposed to (improperly) consider it as evidence of a defendant's criminal disposition. In addition, the danger that a jury could have used the gang evidence in this case as proof that Chavez had a criminal disposition was not insignificant, particularly since it does not appear that the jury was explicitly instructed that the evidence should only be considered for a limited purpose.
Recognizing the inflammatory nature of gang evidence, the Legislature recently enacted Penal Code section 1109 which permits defendants to request a bifurcated trial of gang offenses and gang enhancements. While this statute has no application to this case, I mention it merely to emphasize the increasing recognition of the bias that is often attached to this type of evidence.
CALCRIM No. 1403 provides in relevant part: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related [offenses or enhancements] charged [¶] [OR] [¶] The defendant had a motive to commit the crime[s] charged] [¶] . . . [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime." The record does not reflect that Chavez requested this instruction, and the trial court has no sua sponte duty to read it. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.)
Error in the admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (People v. Partida (2005) 37 Cal.4th 428, 439 [absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test].) Although I believe it was error to admit gang evidence in this case, it is equally clear that there was overwhelming evidence of Chavez's guilt as detailed in the majority opinion. The jail calls, the cell phone evidence, the surveillance video, and the eyewitness testimony leave very little doubt that he committed the offenses for which he was convicted and that there is no reasonable possibility a more favorable result would have occurred without the error. It is also worth noting that the jury acquitted Chavez on count 7, related to Conrado F., further demonstrating that any erroneous admission of gang evidence did not impede their ability to carefully consider the evidence and apply the law to the facts.
Although I respectfully part ways with my learned colleagues on the admission of gang evidence in this case, in all other respects I concur in the majority's analysis and disposition.