People v. Escobar

Full title: THE PEOPLE, Plaintiff and Respondent, v. JONATHAN LEONIDES ESCOBAR et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 10, 2020

No. B259309 (Cal. Ct. App. Jan. 10, 2020)

Opinion

B259309

01-10-2020

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN LEONIDES ESCOBAR et al., Defendants and Appellants.

Wegman & Levin, Debra J. Wegman, and Michael M. Levin for Defendant and Appellant Jonathan Leonides Escobar. William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Gutierrez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Chung L. Mar and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

HANASONO, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA127185) APPEALS from judgments of the Superior Court of Los Angeles County, Ricardo R. Ocampo, Judge. Judgments of convictions affirmed and remanded with directions. Wegman & Levin, Debra J. Wegman, and Michael M. Levin for Defendant and Appellant Jonathan Leonides Escobar. William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Gutierrez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Chung L. Mar and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Defendants and appellants, Jonathan Leonides Escobar and Jorge Gutierrez, appealed their convictions for attempted premeditated murder and shooting at a person from a vehicle with gang and firearm enhancements. They raised multiple claims, including instructional error related to the kill zone theory of liability for attempted murder in CALCRIM No. 600. Other claims included insufficiency of evidence, violation of the confrontation clause and evidentiary error, Griffin ¹ and Doyle ² error, and sentencing error. Gutierrez also requested an independent review of an in camera hearing related to his pretrial motion for discovery. On November 17, 2016, a nonpublished opinion was issued, affirming the convictions for both Escobar and Gutierrez. (People v. Escobar et al. (Nov. 11, 2016, B259309) [nonpub. opn.].)

1 Griffin v. California (1965) 380 U.S. 609 (Griffin).

2 Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).

On December 13, 2016, a rehearing was granted. Both Gutierrez and Escobar raised the same issues raised in the original appeal, including the claim of instructional error related to the kill zone theory. On March 1, 2017, a nonpublished opinion was issued, affirming the convictions in part, vacating the sentences and remanding for resentencing. (People v. Escobar, et al. (Mar. 1, 2017, B259309) [nonpub. opn.].)

On June 14, 2017, the Supreme Court granted review and deferred further action pending consideration and disposition of People v. Canizales (rev. granted Nov. 19, 2014, S221958). On June 24, 2019, the Supreme Court filed People v. Canizales (2019) 7 Cal.5th 591 (Canizales), which limited the application of the kill zone theory for attempted murder. On September 11, 2019, the Supreme Court transferred the matter to us with directions to vacate the previous opinion and reconsider the cause in light of Canizales.

In accordance with our Supreme Court's order, we vacate the March 1, 2017 nonpublished opinion. After considering the parties' supplemental briefs, we conclude sufficient evidence supported instructing on the kill zone theory and any deficiencies in CALCRIM No. 600 were harmless beyond a reasonable doubt. We therefore affirm the convictions of both Escobar and Gutierrez. As to the other issues, our prior decision regarding Escobar's and Gutierrez's previously raised claims of error remains the same. As in the prior opinion, we vacate Escobar's and Gutierrez's sentences and remand for resentencing with directions to the trial court to clarify whether it is aware of its discretion to impose concurrent sentences on counts 1 and 2, and to expressly exercise that discretion and resentence accordingly.

FACTS AND PROCEDURE

I. The facts

A. Prosecution evidence

1. The incident and subsequent investigation

On February 27, 2013, at about 9:00 p.m., Justin P. was in the backyard of his home, which was located on Grand Avenue and Imperial Highway in Los Angeles. He was playing basketball with Diego F. The basketball hoop was attached to the back of the house.³

3 Diego F. referred to Justin P.'s residence as a house. Witness Billy Lee referred to it as an apartment complex. The attorneys referred to it as a house and as an apartment building. For consistency, we will refer to it as a house.

Justin P. was standing at the fence of his backyard when a car drove up. The car pulled over at a red curb on Grand Avenue. The car was about 21 feet from Justin P. It was about 29 feet from Diego F. The passenger side of the car faced them. Escobar was driving and Gutierrez was in the front passenger seat. The front passenger window was down. Gutierrez wore a scarf or bandana on his face. Justin P. heard him ask, "Where you guys from?" Although Gutierrez's face was covered, Justin P. could see his lips move under the scarf when he spoke. Diego F. heard Gutierrez say, "Fuck you." Neither Justin P. nor Diego F. said anything in response. Justin P. began to resume playing basketball.

After Gutierrez spoke, he started shooting. Diego F. heard more than five shots fired, but less than 15. He heard bullets hit the gate. When Justin P. heard the shots, he ran to the side of the house. Justin P. heard eight to 10 gunshots. One bullet struck his ankle. Another hit his buttocks. Diego F. heard Justin P. fall. Diego F. turned back to help him. Justin P. was able to get up and enter the house.

Neither Justin P. nor Diego F. ever pulled out any weapon. Neither were gang members. Neither had seen the car prior to the incident. Neither knew Escobar or Gutierrez.

Justin P. went to the hospital for his wounds. He had surgery and remained in the hospital for three days. He used crutches for seven months.

Los Angeles Police Officer Billy Lee was driving toward Imperial Highway when he heard gunfire. Lee was off-duty at the time. He initially heard two to three shots, then an additional six to eight. He saw the shots coming from the front passenger side of a car about a block and half in front of him, at the corner of Imperial Highway and Grand Avenue. The car's passenger was shooting. The car was pulled over along a red curb.

Lee called 911 to report the shooting. Once the shots ceased, the car drove away. Lee followed it. As Lee pursued the car, he saw Los Angeles Police Officers Phil Sudario and Gil Padilla appear in a marked patrol car. Lee informed them that the car contained a shooting suspect and instructed them to follow it. Lee and the other officers pursued the car. At one point, it collided with another car, but continued driving. The pursuit lasted for about six to eight miles, until Gutierrez and Escobar finally abandoned the car. They ran until the officers caught them.

The pursuit was recorded by Officer Sudario's digital in-car video camera or dash camera. During the pursuit, Officer Sudario saw a black object thrown from the driver's side of the car. He notified Officer Marcos Mercado. At the location specified by Sudario, Mercado found parts of a .40-caliber semiautomatic handgun.

Detective Rosa Torres went to the location of the shooting and found eight .40-caliber casings on Grand Avenue, close to Justin P.'s home. The casings were the same brand, indicating to her that a semiautomatic firearm was fired eight times. She also discovered damage from bullets hitting the fence outside the home. Torres found one bullet fragment on the fence. She found bullet marks in the middle of the fence and bullet damage to the fence toward the back of the home.

Officers later met with Diego F. They pointed out parts of the gate that appeared damaged by gunfire. Diego F. saw one bullet hole at the bottom of the gate or fence.

On the day after the incident, at Kelmark Tow, a police garage, Detective Manuel Moreno searched the car driven by Escobar. He did not find any casings inside. He found a gray scarf, a baseball cap, and three cell phones on the front seat.

2. Gang evidence

a. Prior contacts with law enforcement officers

On March 4, 2011, Los Angeles County Sheriff's Deputy Anthony Fernandez contacted Escobar, Eric Diaz, and Luciano Islas for littering on 106th Street in Los Angeles. Fernandez asked Escobar if he was a gang member, what his moniker was, and if he had any tattoos. According to a field interview card, or F.I. card, Escobar admitted that he was a member of the Junior Mafia gang, his moniker was Smiley, and he had a tattoo of "SCLA." Islas also admitted membership in Junior Mafia.

On October 13, 2011, Los Angeles County Sheriff's Deputy Jeremiah Hooper contacted Gutierrez, Gustavo Reyna, Javier Alvarez, and Abdiel Morales at 107th Street and Budlong Avenue in Los Angeles.

On May 23, 2012, Los Angeles Police Department Officer Jose Bonilla spoke with Gutierrez, Javier Alvarez, and one other person. Gutierrez and Alvarez admitted membership in the Junior Mafia gang. Gutierrez's moniker was Speedy. Alvarez's moniker was Huero.

b. Detective Arevalo

Los Angeles County Sheriff's Detective Albert Arevalo was assigned to the Gang Investigative Unit known as Operation Safe Streets at the South Los Angeles station. He had spoken to hundreds of gang members and investigated hundreds of gang-related crimes. Since 2009, Arevalo investigated crimes committed by members from the Junior Mafia gang in South Los Angeles. He had testified as an expert on Junior Mafia six to ten times.

According to Arevalo, Junior Mafia started as a tagging crew before becoming a gang. As of February 2013, it had about 80 documented members. It was comprised of two cliques, the South Central clique and the Bell Gardens clique. The South Central clique had about 30 members. Arevalo had contacted about a dozen of them. In February 2013, Junior Mafia's South Central clique claimed the area of Vermont Avenue on the east, Normandie Avenue on the west, 104th Street on the north, and 109th Street or 110th Street on the south. Junior Mafia's common signs included "JRM 13" or "JM13." They wore New York Mets or Florida Marlins hats. The primary activities of Junior Mafia members included drug sales, vandalism, and illegal possession of firearms.

Around the date of February 27, 2013, Junior Mafia was engaged in a gang war with its rival, South Los. At 7:00 a.m. on the day of the incident involving Diego F. and Justin P., members of South Los shot Javier Alvarez and another Junior Mafia member named Carlos Reyna. This shooting occurred on Imperial Highway and Vermont Avenue. Alvarez was injured. Reyna was killed.

Arevalo reviewed a report prepared by Officer Bonilla about a contact with Gutierrez on May 23, 2012. Gutierrez admitted gang membership and provided the moniker of Speedy. Arevalo also reviewed an F.I. card prepared by Deputy Hooper about a contact with Gutierrez, Gustavo Reyna, and Javier Alvarez on October 13, 2011. Gustavo Reyna was the brother of Carlos Reyna, who was killed by the South Los members on February 27, 2013 at 7:00 a.m. Javier Alvarez was with Carlos Reyna during that shooting.

Arevalo opined that Gutierrez was an active member of Junior Mafia. Arevalo based his opinion on Gutierrez's admission of membership in Junior Mafia to Officer Bonilla. Additionally, during the contact with Deputy Hooper, Gutierrez was in Junior Mafia territory with Reyna and Alvarez, who were also Junior Mafia members. Arevalo also testified that in May 2013, he spoke with Gutierrez's half-brother, Manuel Mendoza, who was a Junior Mafia member with the moniker of Flaco.⁴ Mendoza confirmed that Gutierrez was a Junior Mafia member with the moniker of Speedy.

4 During the trial, Arevalo referred to Mendoza as Manuel Mendoza and Manny Mendoza. But at one point, the reporter's transcript shows Arevalo also referred to him as Emmanuel Mendoza. For consistency, we will refer to him as Manuel Mendoza or by his last name only.

Arevalo reviewed an F.I. card for Escobar, which was prepared by Deputy Fernandez on March 4, 2011. Arevalo noted that Escobar admitted his gang membership to Fernandez. He also saw that at the time of Fernandez's contact, Escobar was with Eric Diaz and Luciano Islas. Both Diaz and Islas admitted membership in Junior Mafia to Arevalo. Diaz was the subject of the predicate act which established that Junior Mafia was a criminal street gang.

In Arevalo's opinion, Escobar was also a member of Junior Mafia. He based this opinion on Escobar's admission to membership to Deputy Fernandez. Escobar also had a tattoo which indicated the South Central clique of Junior Mafia.

Based on conversations with unidentified Junior Mafia members, Arevalo opined that Escobar and Gutierrez were active Junior Mafia members. Arevalo characterized them as respected members and soldiers.

The prosecutor asked Arevalo to answer a hypothetical question derived from the evidence of the shooting incident involving Diego F. and Justin P. Arevalo opined that the crime was committed for the benefit of, and in association with Junior Mafia. He explained that by committing the shooting in South Los territory, the Junior Mafia members retaliated for the shooting by South Los which occurred earlier in the day. The shooting also strengthened Junior Mafia's reputation for violence. The citizens in the neighborhood would be less likely to report criminal activity conducted by Junior Mafia.

Arevalo also opined that even if the shooting was not committed in retaliation for the earlier shooting, it would still enhance the reputation of the gang members involved. The shooting would also enhance the reputation of the gang.

Additionally, even though the victims were not affiliated with South Los, the crime still benefited Junior Mafia because it was committed within South Los territory. The shooting would instill fear within the community and among South Los gang members.

Arevalo further explained that the shooting was committed in association with Junior Mafia because both the driver and shooter were members. One backed up the other in the event something went wrong during their mission.

B. Defense evidence

1. Gang expert

Martin Flores testified as a gang expert for the defense. He had spoken to thousands of gang members. He was familiar with Junior Mafia and South Los.

Flores discussed typical facts associated with gang shootings. Sometimes, gang members yelled out their gang name during shootings. Flores had worked on drive-by shooting cases where the passenger gang member committed the shooting without the prior knowledge of the driver. He also expected gang members to seek out members of a rival gang in a location they frequented or the heart of their territory. He stated that retaliation shootings are governed by the gang's rules because gang members are held accountable to their gang leaders for crimes they commit.

In response to a hypothetical question which tracked the evidence, Flores opined that the crime could benefit the gang, but other motives were possible. He suggested that the shooter could have targeted the victims for personal reasons. He also offered that the shooting was not necessarily committed in association with the gang because the driver might have had no prior knowledge of the shooter's plan. Flores also believed that gang members would not immediately retaliate for the killing of their fellow member by rival gang members because the police presence would be high.

2. Character witnesses for Gutierrez

Alfonso Ibarez and Jose Ramirez were Gutierrez's cousins. Both disputed that Gutierrez was affiliated with a gang. Both described him as not violent. Both believed the allegation of shooting was uncharacteristic of him.

Similarly, Gutierrez's friend, David Hidalgo, also disputed that he was a gang member. Hidalgo also believed the charged crime was inconsistent with his character. II. Procedure

The jury convicted Escobar and Gutierrez of attempted murder of Justin P. (Pen. Code, §§ 664, 187, subd. (a);⁵ count 1), attempted murder of Diego F. (§§ 664, 187, subd. (a); count 2), and shooting at a person from a motor vehicle (§ 26100, subd. (c); count 3). For both Escobar and Gutierrez, the jury found true the allegation that each count of attempted murder was committed with premeditation. (§ 664, subd. (a).)

5 All further undesignated statutory references are to the Penal Code.

On each count of attempted murder for Escobar, the jury found that a principal personally and intentionally discharged a firearm causing great bodily injury to Justin P. (§ 12022.53, subds. (d), (e)(1).) On each count of attempted murder for Gutierrez, the jury found true that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally and intentionally discharged a firearm causing great bodily injury to Justin P. (§ 12022.53, subd. (d)). On count 3, the jury also found true that Gutierrez personally used a firearm. (§ 12022.5, subd. (a).)

The jury also found that Escobar and Gutierrez committed each crime for the benefit of, at the direction of, or in association with, a criminal street gang, within the meaning of section 186.22, subdivision (b).⁶

6 Because attempted premeditated murder is "a felony punishable in the state prison for life," the gang penalty provision under section 186.22, subdivision (b)(5), should have applied, instead of the gang enhancement under subdivision (b)(1)(C), which was found true by the jury. (People v. Lopez (2005) 34 Cal.4th 1002, 1006-1007.) Section 186.22, subdivision (b)(5) was alleged in the information, but not included on the verdict form.

The trial court imposed identical sentences for Gutierrez and Escobar. On each of counts 1 and 2, the trial court imposed consecutive terms of 15 years to life.⁷ For Gutierrez, the trial court imposed an additional term of 25 years to life each on counts 1 and 2 for the firearm enhancement under section 12022.53, subdivision (d).⁸ For Escobar, the trial court imposed an additional term of 25 years to life each on counts 1 and 2 for the enhancement that a principal personally and intentionally discharged a firearm causing great bodily injury to Justin P., under section 12022.53, subdivisions (d) and (e)(1). As to count 3 for both Escobar and Gutierrez, pursuant to section 654, the trial court imposed and stayed the midterm of five years, plus an additional term of 25 years to life.⁹ The total aggregate term for Escobar and Gutierrez was 80 years to life each.¹⁰

7 The trial court commented that the gang enhancement had no effect on the sentences on counts 1 and 2. However, the gang penalty provision imposes a 15-year minimum parole eligibility period for the indeterminate sentence of the underlying crime. (§ 186.22, subd. (b)(5).) Without the gang penalty provision, the punishment for attempted premeditated murder is life with the possibility of parole after serving a term of at least seven years. (§§ 664, subd. (d), 3046, subd. (a)(1).) For Gutierrez, the trial court did not rely on the gang penalty provision to impose the minimum parole eligibility term for each attempted premeditated murder at 15 years. For counts 1 and 2 for Escobar, the trial court did not account for the sentencing limitation under section 12022.53, subdivision (e)(2), which prohibits the imposition of both the vicarious firearm enhancement and the gang penalty provision. (People v. Brookfield (2009) 47 Cal.4th 583, 595; People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1427.) In such situations, only the punishment on the firearm enhancement can be imposed because it was the greater penalty. (§ 12022.53, subd. (j).)

8 On counts 1 and 2 for Gutierrez, the trial court did not impose and stay the 20-year term for the firearm enhancement under section 12022.53, subdivision (c), even though it was found true by the jury. (§ 12022.53, subd. (f).)

9 On count 3 for Gutierrez, the jury found true the firearm enhancement under section 12022.5, subdivision (a), rather than section 12022.53, subdivision (d), which was alleged in the information. Section 12022.5 cannot apply to a violation of section 26100, subdivision (c) because it contains the use of a firearm as an element. (§ 12022.5, subd. (a).) On count 3 for Escobar, the verdict form did not permit a jury finding as to any firearm enhancement. Additionally, on count 3 for both Escobar and Gutierrez, the trial court did not address the gang enhancement under section 186.22, subdivision (b)(1)(C), which was found true by the jury.

10 The trial court did not address the following allegations which were alleged in the information but not included on the verdict forms: (1) on counts 1 and 2 for Escobar, section 12022.53, subdivisions (b), (c), and (e); (2) on count 3 for Escobar, section 12022.53, subdivisions (b), (c), (d) and (e)(1); (3) on counts 1 and 2 for Gutierrez, section 12022.53, subdivisions (b); and (4) on count 3 for Gutierrez, section 12022.55. Because the jury did not make any findings on these allegations, they must be dismissed at resentencing.

DISCUSSION

I. Sufficiency of evidence to instruct on the kill zone theory

Gutierrez and Escobar first argue that the trial court improperly instructed the jury on the kill zone theory of liability for the attempted murder of Diego F. because insufficient evidence supported its application. We disagree.

Attempted murder requires "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) When a defendant attempts to kill two or more persons by a single act, the element of intent to kill must be examined independently as to each alleged victim. (People v. Bland (2002) 28 Cal.4th 313, 327-328 (Bland).) Intent to kill cannot transfer from one attempted murder victim to another. (Ibid.)

Although intent to kill cannot transfer among victims, the Supreme Court in Bland provided for concurrent intent to kill to establish attempted murder against each person a defendant tries to kill by his or her single act. (Bland, supra, 28 Cal.4th at p. 329.) Concurrent intent would be established when the defendant, while targeting a specific person, tried to kill everyone in the area in which that person was located to ensure his or her death. In doing so, the defendant specifically intended to kill everyone in that area. (Ibid.) The Court labeled this area around the primary target victim as the "kill zone."¹¹ (Ibid.) This theory allows for a conviction of attempted murder against any victim who was in the specified area but was not the defendant's primary target. (Id. at pp. 329-330; People v. Smith (2005) 37 Cal.4th 733, 745-746 (Smith).)

11 The Supreme Court adopted the term "kill zone" from the Maryland case of Ford v. State (1993) 330 Md. 682, 717, 625 A.2d 984, 1000-1001. (Bland, supra, 28 Cal.4th at p. 329.)

People v. Canizales, supra, 7 Cal.5th at page 607, limited the application of the kill zone theory. Under Canizales, the kill zone theory may only be applied when: "(1) the circumstances of the defendant's attack on a primary target, including the type and extent of the force [he or she] used, are such that the only reasonable inference is that [he or she] intended to create a zone of fatal harm . . . around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of [fatal] harm." (Ibid.)

Canizales further instructs that the determination of the intent to create a kill zone and the scope of the kill zone requires consideration of the circumstances of the attack, including "the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, supra, 7 Cal.5th at p. 607.)

For a jury to be instructed that it may draw an inference, as the instruction on the kill zone theory does, the record must contain evidence that would support the suggested inference, if believed by the jurors. (Canizales, supra, 7 Cal.5th at p. 609.)

First, substantial evidence supported the inference that Escobar and Gutierrez intended to create a kill zone around Justin P. Escobar positioned their car close to Justin P. and Diego F. He drove up to the curb and stopped 21 feet from Justin P. and 29 feet from Diego F. Escobar and Gutierrez selected targets within the confined area of the backyard of the home where Justin P. and Diego F. were playing basketball. The adjoining structure was the only place to seek safety. The structure provided a finite boundary to the kill zone. From this close stationary position, Gutierrez fired at least eight shots at Justin P. and Diego F. He used a .40-caliber semiautomatic handgun. Two bullets struck Justin P. Diego F. heard a bullet strike a gate that was near him when he ran. Other bullets struck the fence separating them from Gutierrez and Escobar.

These facts differ from those in Canizales. Unlike Gutierrez, the shooter in Canizales fired five shots at the primary target from 100 to 160 feet away. None of the shots hit the primary target or the other alleged attempted murder victim. Bullets were described as " 'going everywhere.' " (Canizales, supra, 7 Cal.5th at p. 610.) The shooting occurred at a block party on a wide city street, open and unconfined by any structure or fencing as we have here. (Ibid.)

Second, Diego F. was located within the kill zone. He was near Justin P. When Escobar and Gutierrez appeared, they were playing basketball in an area around a single hoop. Diego F. and Justin P. were close enough to Gutierrez to hear his statements. One heard his verbal gang challenge. The other heard his cursing. When Gutierrez began shooting, they both ran toward the house. When the bullet struck Justin P., Diego F. was close enough to hear him fall and to turn back to help him.

Consistent with Canizales, the only reasonable inference from the evidence is that Gutierrez and Escobar intended to create a kill zone around Justin P., and Diego F. was located within that zone. Accordingly, we conclude that substantial evidence supported the instruction on the kill zone theory. II. Instruction on the kill zone theory

Escobar and Gutierrez next argue that the paragraph on the kill zone theory in CALCRIM No. 600 did not comply with Canizales. As we will discuss, the instruction was deficient. However, the omissions were harmless.

A. Omissions in CALCRIM No. 600

Originally, the Supreme Court identified the kill zone theory as "simply a reasonable inference the jury may draw in a given case," rather than "a legal doctrine requiring special jury instructions." (Bland, supra, 28 Cal.4th 313, 331, fn. 6; Smith, supra, 37 Cal.4th at p. 746.) Canizales did not disapprove of the kill zone theory or this characterization of it, or otherwise overrule Bland. (Canizales, supra, 7 Cal.5th at p. 607.) The Attorney General also correctly notes that Canizales explicitly declined to reach a due process challenge to the instruction on the kill zone theory in CALCRIM No. 600.¹² (Canizales, at p. 618.)

12 In Canizales, the defendants specifically argued that the instruction on the kill zone theory improperly permitted the jury to reach guilt on the attempted murder of a nontargeted victim without a finding of his or her intent to kill. Addressing the argument was unnecessary because the court concluded that insufficient evidence supported the instruction and reading it to the jury amounted to prejudicial error. (Canizales, supra, 7 Cal.5th at p. 618.)

But the Supreme Court suggested that when the kill zone theory applies to the facts of a case, CALCRIM No. 600 "should be revised to better describe the contours and limits of the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 609.) After concluding that the trial court erred in instructing on the factually unsupported kill zone theory, the Supreme Court reviewed language in the instruction to determine whether the error was prejudicial. (Canizales, supra, 7 Cal.5th at pp. 613-615.) The trial court in Canizales utilized the standard instruction in CALCRIM No. 600, as did the trial court here.¹³

13 As instructed to the jury, CALCRIM No. 600 stated, "A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the Attempted Murder of Diego [F.], the People must prove that the defendant not only intended to kill Justin [P.] but also either intended to kill Diego [F.], or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Diego [F.] or intended to kill Justin [P.] by killing everyone in the kill zone, then you must find the defendant not guilty of the Attempted Murder of Diego [F.]

The Court noted two omissions in CALCRIM No. 600. (Canizales, supra, 7 Cal.5th at p. 613.) First, the instruction did not define the term "kill zone." When introducing the term, the instruction merely referred to it as a " 'particular zone of harm.' " (Ibid.)

Second, CALCRIM No. 600 did not direct the jurors to consider the circumstances of the attack. (Canizales, supra, 7 Cal.5th at p. 613.) Canizales requires such consideration for the jurors to evaluate whether Escobar and Gutierrez intended to create a kill zone and to determine the scope of that zone. (Id. at p. 607.) The scope of the kill zone must be confined to the area in which the defendant intended to kill everyone.¹⁴ It cannot reach an area where the defendant "merely endangered everyone," or "acted with only conscious disregard of the risk of serious injury or death for those around a primary target." (Id. at pp. 607-608.)

14 Canizales had no occasion to determine the scope of the zone because the evidence was insufficient to apply the kill zone theory. (Canizales, supra, 7 Cal.5th at p. 611.)

Without these clarifications, CALCRIM No. 600 did not explicitly convey the limited applicability of the kill zone theory, as established by Canizales.

B. Prejudice

Instructional error regarding the elements of the offense "requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Aledamat (2019) 8 Cal.5th 1, 12; Neder v. United States (1999) 527 U.S. 1, 18; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) The Chapman standard applies because the deficiencies in the kill zone theory instruction amounted to a "misdescription" of the intent element of attempted murder. (Aledamat, at pp. 9-10; Chun, at p. 1201.) As we will discuss, the two omissions from CALCRIM No. 600—the definition of kill zone and consideration of the circumstances of the attack—were harmless beyond a reasonable doubt.

First, even though CALCRIM No. 600 omitted an explicit definition for the term "kill zone," it began with a description of the kill zone as an area in which a defendant intended to kill everyone present in it. This description was substantially similar to the definition of the kill zone in Canizales as "an area in which the defendant intended to kill everyone present to ensure the primary target's death." (Canizales, supra, 7 Cal.5th at p. 607.) The latter portion of ensuring the primary target's death is communicated in the second sentence of CALCRIM No. 600, which requires an intent to kill Justin P., the primary target, as well as an intent to kill Diego F. or everyone in the kill zone. In other words, under the kill zone theory, a conviction for the attempted murder of Diego F. requires the intent to kill Justin P.

CALCRIM No. 600 also properly explained that the kill zone is an area in which the non-primary target victim must be located. By permitting the alternative requirements of either an intent to kill Diego F. or an intent to kill everyone in the kill zone, the instruction implies that Diego F. must be included among "everyone within the kill zone." (CALCRIM No. 600.) Requiring the nonprimary target to be within the kill zone sufficiently constitutes the second prong of the test formulated in Canizales. (Canizales, at p. 607.)

Gutierrez asserts that the omission of the definition of the kill zone, combined with the prosecutor's closing remarks, "equated attempted murder with implied malice murder." The prosecutor commented, "[Gutierrez] pulls out that gun and he starts firing at [Justin P.], he doesn't care who else is there. He doesn't care that there's going to be other people hit, whether he saw them or not." Gutierrez seems to argue that the requisite intent was reduced to acting with conscious disregard of the risk of serious injury or death for someone around the primary target.

We reject Gutierrez's argument. CALCRIM No. 600 did not minimize, omit, or affirmatively misstate the requisite intent to kill each victim, whether as a primary target or otherwise. It properly required proof of an intent to kill Diego F., or alternatively, an intent to kill everyone within the kill zone. (Canizales, supra, 7 Cal.5th at p. 607.) Moreover, CALCRIM No. 600 confirmed the necessity of an acquittal of the attempted murder of Diego F., if the jurors had a reasonable doubt as to the intent to kill him or the intent to kill Justin P. by killing everyone in the kill zone.

The prosecutor also explicitly confirmed the requisite intent to kill applicable to the kill zone theory. She stated that the kill zone theory applies when a person intends to kill a specific victim and at the same time intends to kill everyone in a particular zone.¹⁵ This comment properly described the concept of concurrent intent. (Canizales, supra, 7 Cal.5th at p. 603; Bland, supra, 28 Cal.4th at p. 329.)

15 We reject Gutierrez's contention that defense counsel's reference to transferred intent in explaining the kill zone theory also reduced the requisite intent to kill. Transferred intent does not apply to attempted murder. (Bland, supra, 28 Cal.4th at p. 317.) But the crux of defense counsel's argument was that the kill zone theory still required proof of intent to kill.

Second, although the instruction did not explicitly direct the jurors to consider the circumstances of the attack, the only reasonable inference to be drawn from the evidence was the intent to create a kill zone by Escobar and Gutierrez. They created a zone which was confined to a backyard, bounded by a structure and fencing. This was not an open city street. (Canizales, supra, 7 Cal.5th at p. 611.) Escobar cornered the victims by positioning his car against the red curb along the fence line of the property. The only avenue of escape was entering the house itself.

If the kill zone centered around Justin P, Diego F. would have necessarily been located within it. Diego F. was the only other person present in the confined space. He was near Justin P. He was playing basketball with Justin P. before the shooting. He was within earshot of Justin P. when the bullet struck him. There were no obstructions between them. There was no crowd of people.

Gutierrez fired within close range of both Justin P. and Diego F. He fired from a stationary position. He did not fire from a moving car. (People v. Perez (2010) 50 Cal.4th 222, 232.) He fired at least eight shots, using a .40-caliber semiautomatic handgun. This was not a single shot case. (Ibid.) Nor was this a close case. Eight shots were excessive when only two targets were available. Moreover, his chosen method of attack was effective with two of the shots striking one of the targets.

The evidence supported an intent to kill Diego F., as well as an intent to kill Justin P. The facts did not present a situation where intent to kill one victim was less clear than the intent to kill another.¹⁶ No appreciable distinctions existed between Diego F. and Justin P. to suggest that one was excluded as a target and thus outside the zone of fatal harm. During closing argument, the prosecutor merely suggested Justin P. was the intended target because he was closer to Gutierrez when he began firing the shots. But either Justin P. or Diego F. could have been the primary target. Neither Gutierrez nor Escobar had any personal animus against one and not the other. Neither Gutierrez nor Escobar had a prior relationship with either victim. Justin P. and Diego F. were not rival gang members. Neither responded to Gutierrez's verbal challenge. When neither responded, Gutierrez began firing. If Escobar and Gutierrez each had an intent to kill Justin P., no evidence refutes that they each also would have had an intent to kill Diego F.

16 Gutierrez argues that the evidence was insufficient to support the existence of a primary target because there was no reason to target Justin P. We reject his argument. According to Arevalo, Justin P.'s presence in rival gang territory was sufficient to establish motive to kill him.

Based on the entirety of CALCRIM No. 600 and the evidence of the circumstances of the attack and separate intent to kill Diego F., the instruction's omissions did not contribute to the verdict. Accordingly, we conclude that the omissions were harmless beyond a reasonable doubt. III. Sufficiency of evidence

Gutierrez contends that insufficient evidence supported the convictions for attempted murder committed with premeditation and the gang allegation.¹⁷ We disagree.

17 Escobar did not raise this issue. However, Escobar and Gutierrez attempt to join one another's claims, including those for which they failed to provide any argument. The Supreme Court disapproves of this tactic. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.) "Purporting to join in a claim when no colorable argument can be made that the claim is applicable and preserved is akin to raising a frivolous claim in the first instance." If an appellant's brief does not provide legal argument and citation to authority on each point raised, the court may treat it as waived. (Ibid.)
We would reject any claim on this issue, even if Escobar had raised it. Escobar assisted in the commission of the attempted murders by driving his fellow gang member, Gutierrez, to the location, stopping close to the victims. He demonstrated his knowledge of Gutierrez's intent to kill by remaining during the verbal confrontation of the victims. He further displayed his intent to assist in the attempted murders by remaining while Gutierrez fired eight shots at the victims. Finally, Escobar attempted to drive Gutierrez to safety, evading police officers who eventually apprehended them. These actions support Escobar's culpability as an aider and abettor in the attempted murders. (People v. Perez (2005) 35 Cal.4th 1219, 1225; People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

Our standard of review is well settled. For a challenge of the sufficiency of the evidence, the record must contain "substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357; People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We review the evidence in the light most favorable to the judgment. (Zamudio, at p. 357.) We must "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) We do not resolve credibility issues or conflicts in the evidence. (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)

A. Attempted murder

Gutierrez argues he had no intent to kill Justin P. or Diego F. Instead, Gutierrez suggests he merely intended to frighten them. He reasons that the shots were fired at a low level or in a downward direction and Justin P. was only accidentally injured.

We disagree. As previously discussed, Gutierrez demonstrated his intent to kill Justin P. and Diego F. by firing at least eight shots at them at close range. (Smith, supra, 37 Cal.4th at p. 741.) Gutierrez's shots struck Justin P. and nearly struck Diego F. He could have inflicted a mortal wound on either had his marksmanship been better. Gutierrez's failure to kill Justin P. and Diego F. does not equate to a lack of intent to kill in the first instance. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) These facts sufficiently supported Gutierrez's intent to kill both.¹⁸ (People v. Ramos (2011) 193 Cal.App.4th 43, 48.)

18 We also reject Gutierrez's argument that an intent to kill was inconsistent with his character for intelligence, humility, and non-violence. The jury was free to disbelieve each of Gutierrez's character witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " '[W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (Ibid.)

B. Deliberation and Premeditation

An attempted murder committed with deliberation and premeditation requires more than a showing of an intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz); People v. Mendoza (2011) 52 Cal.4th 1056, 1069 (Mendoza).) "Premeditated" means " 'considered beforehand.' " (People v. Mayfield (1997) 14 Cal.4th 668, 767.) "Deliberate" means " 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citation.]' " (Ibid.) An attempted murder is deliberate and premeditated if it resulted from "preexisting thought," rather than "rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) "The process of premeditation and deliberation does not require any extended period of time." (Mayfield, at p. 767.)

Traditionally, to assess the sufficiency of evidence to support deliberation and premeditation, the Supreme Court has established three factors or categories of evidence: planning activity, motive to kill, and the manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); People v. Wharton (1991) 53 Cal.3d 522, 546; Mendoza, supra, 52 Cal.4th at p. 1069.) A murder or attempted murder committed with deliberation and premeditation typically entails any one of the following: (1) extremely strong evidence of planning, (2) a combination of evidence of motive and either evidence of planning or evidence of a calculated manner of killing or attempting to kill, or (3) evidence of all three factors. (Anderson, at p. 27; Wharton, at pp. 546-547; People v. Memro (1995) 11 Cal.4th 786, 863.)

Preliminarily, the Supreme Court has clarified that the Anderson factors need not be present in any special combination. (People v. Booker (2011) 51 Cal.4th 141, 173.) The Anderson factors remain useful to review the evidence. But they are not required to find deliberation and premeditation. (Koontz, supra, 27 Cal.4th at p. 1081; People v. Cole (2004) 33 Cal.4th 1158, 1224.)

Here, the tactics leading up to the shooting showed planning. Escobar and Gutierrez drove into rival gang territory to commit their retaliatory shooting. They stopped within close range of Justin P. and Diego F. with the front passenger window open. Gutierrez concealed his face. They remained in the car, facilitating a quick and successful escape. Anderson suggested that planning evidence included the defendant taking measures to avoid detection. (Anderson, supra, 70 Cal.2d at p. 27.) Gutierrez's arrival with a semiautomatic firearm also demonstrated planning. (People v. Thomas (1992) 2 Cal.4th 489, 517.) Firing the gun immediately after the initial verbal contact suggested they arrived with the gun loaded and ready to use.

We can reasonably infer the motive for this shooting from Escobar's and Gutierrez's hatred of their rival gang. (See People v. Sanchez (2001) 26 Cal.4th 834, 849; People v. Rand (1995) 37 Cal.App.4th 999, 1001.) Escobar and Gutierrez were Junior Mafia gang members. They sought to retaliate against rival gang members for shooting at their fellow members. Even though Justin P. and Diego F. did not declare affiliation with the rival gang, shooting in the rival gang's territory would have still motivated Escobar and Gutierrez. As Detective Arevalo explained, a shooting in South Los territory would benefit Junior Mafia even if the victims were not South Los gang members.

Finally, the manner of shooting supported deliberation. Gutierrez fired at least eight times from a .40-caliber semiautomatic handgun, after Escobar positioned him in close range in a stationary car. This manner of attempted killing suggests "a 'preconceived design' " to kill. (Anderson, supra, 70 Cal.2d at p. 27.)

Based on all three of the Anderson factors, substantial evidence supported findings that the attempted murders were deliberate and premeditated.¹⁹

19 Again, although Escobar did not specifically challenge the findings of deliberation and premeditation as to his convictions, we conclude that they were supported by substantial evidence.

C. Gang allegation

We apply the same standard of review on a challenge to the sufficiency of the evidence of an enhancement as to the sufficiency of the evidence of a conviction. (People v. Weddington (2016) 246 Cal.App.4th 468, 483; People v. Wilson (2008) 44 Cal.4th 758, 806.) Accordingly, the record must disclose substantial evidence to support the enhancement. (People v. Franklin (2016) 248 Cal.App.4th 938, 947 (Franklin).)

The gang allegation, under section 186.22, subdivision (b), first requires proof that the defendant committed the offense "for the benefit of, at the direction of, or in association with a criminal street gang." (§ 186.22, subd. (b)(1); People v. Abillar (2010) 51 Cal.4th 47, 59 (Abillar); Franklin, supra, 248 Cal.App.4th at p. 948.) Second, it requires that the defendant commit the offense "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1); Abillar, at p. 64; Franklin, at p. 948.)

To prove these elements, Detective Arevalo testified as the prosecution expert witness on gangs, as permitted by People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048. An expert's opinion may sufficiently support the gang enhancement. (Abillar, supra, 51 Cal.4th at p. 63; People v. Vang (2011) 52 Cal.4th 1038, 1048.) He established that Junior Mafia was a criminal street gang under section 186.22, subdivision (f). As we will further discuss, Arevalo believed that Escobar and Gutierrez were Junior Mafia gang members. He based this opinion on their admissions to membership to other witnesses who testified at trial.

Additionally, Arevalo based his opinions regarding the crimes on hypothetical facts which were derived from the facts of the case. He first opined the hypothetical crimes were committed for the benefit of a criminal street gang. Specifically, the shooting was committed in retaliation for a shooting committed earlier in the day by rival gang members. The gang still benefited from the shooting even though the victims were not members of the rival gang. Arevalo explained that because the shooting occurred in rival gang territory, it strengthened the gang's reputation for violence. (People v. Margarejo (2008) 162 Cal.App.4th 102, 110; People v. Miranda (2011) 192 Cal.App.4th 398, 412-413 (Miranda).)

Arevalo also opined that the hypothetical gang members committed the shooting in association with their gang. He explained that the two gang members could back up one another in the event something went wrong during their mission. The jury could reasonably infer the association element from one gang member's commission of the offenses in association with his fellow gang member. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Accordingly, substantial evidence supported the first element of the gang enhancement on the association theory, as well as the benefit theory.

The mental state for the gang enhancement consists of a specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b).) The criminal conduct to be promoted, furthered, or assisted includes the criminal conduct underlying the offense sought to be enhanced. (Abillar, supra, 51 Cal.4th 47, 66.) The jury could reasonably infer the requisite specific intent for the gang enhancement based on substantial evidence that one gang member intended to, and did, commit the crime with another gang member. (Id. at p. 68; People v. Ewing (2016) 244 Cal.App.4th 359, 379; Miranda, supra, 192 Cal.App.4th at p. 412.)

Accordingly, we conclude that the evidence sufficiently supports the gang allegation for each offense for both Escobar and Gutierrez. IV. Admissibility of gang expert's basis evidence

Escobar and Gutierrez argue that Detective Arevalo relied on inadmissible case-specific and testimonial hearsay to conclude they were Junior Mafia members and the crimes were gang-related. They assert that because this information was stated before the jury, it violated California hearsay law and the Sixth Amendment right of confrontation, as established by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).²⁰

20 Sanchez was decided after argument in this case. We invited further briefing from the parties addressing the impact, if any, of Sanchez on this case. We have reviewed and considered the supplemental briefs submitted by the parties.

The pertinent portions of Arevalo's testimony include: (1) statements that Carlos Reyna was killed by South Los members; (2) statements by Deputy Hooper and Officer Bonilla; (3) statements by Manuel Mendoza that Gutierrez was a Junior Mafia member; and (4) statements by unidentified gang members to support the characterization that Escobar and Gutierrez were soldiers in Junior Mafia.

A. Case-specific hearsay and testimonial hearsay

Under prior law, an expert witness could render an opinion and explain the basis upon which he or she relied to form an opinion, even if the evidence for that basis consisted of out-of-court statements. (Evid. Code, §§ 801, subd. (b), 802; Sanchez, supra, 63 Cal.4th at p. 679.) But there was a question as to how much substantive detail the expert could provide about those statements and how jurors could consider them in evaluating his or her opinion. (Sanchez, at p. 679.) The trial court would cure any hearsay problems by instructing jurors that such evidence related only to the basis of the expert's opinion and should not be considered for its truth. (Ibid.) As nonhearsay, the statements would not implicate the hearsay rule or the confrontation clause. Alternatively, the trial court could exclude unreliable or incompetent hearsay evidence under Evidence Code section 352. (Ibid.)

Sanchez changed this paradigm. Specifically, Sanchez concluded, "If an expert testifies to case-specific out-of-court statements to explain the bases for his [or her] opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay."²¹ (Sanchez, supra, 63 Cal.4th at p. 684.) Our Supreme Court added, "Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth." (Ibid.) The Court instead prescribed that the hearsay contained within the expert's basis evidence "must be properly admitted through an applicable hearsay exception." (Ibid.) Or, an appropriate witness can testify to it, and the expert may assume its truth in a hypothetical question. (Ibid.)

21 Sanchez adopted the reasoning of a majority of justices in Williams v. Illinois (2012) 567 U.S. 50. The Supreme Court in Williams considered an expert's opinion that the defendant's DNA matched a profile produced from DNA collected from a rape victim by a third-party laboratory. (Id. at pp. 61-62.) The expert had no personal knowledge of the DNA analysis by the laboratory. No one from the laboratory independently testified that the DNA tested was taken from the rape victim. Five justices, comprised of one concurring justice and the four-member dissent, rejected the characterization of the basis evidence as not hearsay because the expert's opinion depended on the truth of the laboratory's analysis. (Id. at pp. 108-109 (conc. opn. of Thomas, J.); id. at pp. 125-126 (dis. opn. of Kagan, J.).)

The admissibility of testimony incorporating hearsay as the basis for an expert's opinion depends on whether it includes "case-specific" facts or is part of "general background" information. (People v. Stamps (2016) 3 Cal.App.5th 988, 995 (Stamps); People v. Ochoa (2017) 7 Cal.App.5th 575, 588 (Ochoa).) Facts are case-specific when they relate "to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) When an expert testifies to an out-of-court statement to establish a case-specific fact, the statement is inadmissible hearsay under state law, unless a hearsay exception applies, or it is independently proven by competent evidence. (Id. at p. 686; Ochoa, at p. 589.) General background information consists of the premises generally accepted in the expert's field. (Sanchez, at p. 685.) It is not "subject to exclusion as hearsay, even though offered for its truth." (Ibid.)

The admission of testimonial hearsay by the prosecution expert violates the confrontation clause, unless the declarant of the hearsay was unavailable, and the defendant had a prior opportunity to cross-examine him or her. (Crawford v. Washington (2004) 541 U.S. 36, 68; Sanchez, supra, 63 Cal.4th at p. 687.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, at p. 689.) "[N]ot all statements made in response to police questioning would constitute testimonial hearsay." (Id. at p. 687; Davis v. Washington (2006) 547 U.S. 813, 822.) Nontestimonial statements are made primarily "to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, at p. 689.) The test is objective. (Id. at p. 688.) It considers "the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." (Michigan v. Bryant (2011) 562 U.S. 344, 360 (Bryant); Sanchez, at pp. 688-689.)

Circumstances other than ongoing emergencies may suggest that a statement is "not procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Bryant, supra, 562 U.S. at p. 358; Sanchez, supra, 63 Cal.4th at p. 689, fn. 14.) The ongoing emergency factor is merely one of the circumstances to determine the primary purpose of the questioning. (Bryant, at p. 366.) The informality of the statement is an additional factor. (Id. at p. 377; People v. Dungo (2012) 55 Cal.4th 608, 619; Sanchez, at pp. 692-694; Ohio v. Clark (2015) 576 U.S. ___ [135 S.Ct. 2173, 2180].)

Thus, Sanchez applied a two-step analysis, determining (1) whether the case-specific statements were inadmissible hearsay and (2) whether the statements were testimonial hearsay, implicating Crawford. (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246-1247 (Iraheta); Sanchez, supra, 63 Cal.4th at pp. 680, 694; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 409-410 (Vega-Robles).) Improperly admitting hearsay amounts to statutory error. (Iraheta, at p. 1247; Sanchez, at p. 685; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Admitting testimonial hearsay of an unavailable declarant without prior cross-examination amounts to prejudicial error, unless harmless beyond a reasonable doubt. (Sanchez, at p. 685; Chapman, supra, 386 U.S. at p. 24.)

B. Statements on which Detective Arevalo relied

1. Statements that Carlos Reyna was killed by South Los members

Before the jury, Detective Arevalo testified that Junior Mafia and South Los were engaged in a "turf war." He further testified that he based this opinion on an incident that occurred at 7:00 a.m. on the date of the shooting in this case. The earlier incident involved South Los members shooting Javier Alvarez and Carlos Reyna, who were two Junior Mafia members. Arevalo repeated this information in response to the prosecutor's hypothetical question derived from the facts of this case. This information formed the basis of Arevalo's opinion that the shooting of Justin P. and Diego F. was committed in retaliation for the earlier shooting, and thus benefited the gang. Escobar and Gutierrez complain that this information was improperly presented to the jury.²²

22 Escobar also complains about Arevalos's testimony that "everyone in the neighborhood who's a gang member, from Junior Mafia or South Los, knew that Carlos Reyna, Dodger, had been killed, knew that Dodger was shot by South Los gang members." Although this testimony was originally stated before the jury, the trial court struck it as speculative. We see no error because jurors are presumed to understand and follow the court's instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)

During a hearing outside the presence of the jury (Evid. Code, § 402) prior to his trial testimony, Arevalo testified about the shooting of Reyna and Alvarez. Members from Junior Mafia advised him that South Los gang members were responsible for the shooting.²³ South Los members also told Arevalo that their gang was taking credit for the shooting. Apparently, the persons involved in the shooting had admitted their culpability to other South Los members and to upper level members of Junior Mafia. Arevalo testified that he learned this information during consensual encounters with the gang members and relatives of gang members. Citizens from the area also informally told Arevalo this information because they were too afraid to make crime reports. Arevalo never testified about the sources of this information in front of the jury.

23 During the hearing, Arevalo also testified that he joined homicide detectives in speaking with Alvarez while he was in the hospital. Alvarez stated that he recognized one of the persons involved to be a South Los member. The trial court ruled that this testimony was admissible. However, at trial before the jury, Arevalo never testified to these statements by Alvarez. Neither Escobar nor Gutierrez claim otherwise.

These statements that South Los was responsible for killing Reyna were not testimonial hearsay. Arevalo engaged in the conversations with the gang members during consensual encounters. Similarly, the circumstances under which he spoke to the citizens from the area was also informal. They spoke to him in confidence to avoid making formal reports. None of the conversations were memorialized. None of the declarants had any expectation that they were to be used like trial testimony or for later use at trial.

The statements also did not amount to hearsay. The statements were not offered for their truth. It was immaterial whether South Los was responsible for shooting at Reyna and Alvarez. What mattered was that Junior Mafia members believed South Los was responsible. Such a belief by Junior Mafia members would fuel their motivation to commit the retaliatory shooting against the hypothetical victims, who were substituted for Justin P. and Diego F. Accordingly, the trial court did not err in admitting these statements.

Even if the trial court improperly admitted these statements, the admission was harmless under any standard. Detective Arevalo testified that he would arrive at the same opinion even if the motive for the shooting was not retaliatory. Arevalo reasoned that the commission of the crimes would still enhance the reputations of the gang and the individual members who committed the crimes.

2. Statements by Deputy Hooper and Officer Bonilla

Detective Arevalo opined that Gutierrez was an active member of Junior Mafia. The basis of this opinion included two facts.²⁴ The first was Gutierrez's admission to membership, indicated in a report by Officer Bonilla. The second was Gutierrez's association with Javier Alvarez and Gustavo Reyna in Junior Mafia territory, as indicated in Deputy Hooper's F.I. card.²⁵ Further, Arevalo personally knew that Alvarez and Reyna were also Junior Mafia gang members.

24 Arevalo later testified that he also considered statements by Manuel Mendoza, which we will discuss below.

25 Escobar argues that Arevalo testified to statements by two unidentified police officers who saw Gutierrez in 2011 and 2012 with Junior Mafia members. But as we discuss, Arevalo did identify the officers as Officer Bonilla and Deputy Hooper.

Prior to Arevalo's testimony, Bonilla testified that on May 23, 2012, he spoke with Gutierrez who was again with Javier Alvarez.²⁶ Gutierrez admitted to Bonilla that he was a Junior Mafia member with a moniker of Speedy. Bonilla further testified that an F.I. card was prepared after the encounter. He documented on the F.I. card that Gutierrez self-admitted his gang membership. He also documented Gutierrez's gang membership and moniker in a police report.

26 Arevalo did not initially consider Gutierrez's association with Javier Alvarez as part of the basis of his opinion. During cross-examination, Arevalo testified that he did not know if Gutierrez was with other gang members during the contact by Officer Bonilla. Arevalo testified that he relied primarily on Gutierrez's admission of gang membership to Bonilla and providing a gang moniker. However, on further direct examination, Arevalo testified that he did consider Gutierrez's association with Alvarez during the contact by Bonilla.

Also prior to Arevalo's testimony, Hooper testified that he contacted Gutierrez on October 13, 2011. Gustavo Reyna, Javier Alvarez, and Abdiel Morales were with Gutierrez at the time. Gutierrez was a passenger in a car which was pulled over for a traffic stop.

The facts presented by Bonilla and Hooper were admissible. Although Bonilla's testimony about Gutierrez's admission to gang membership was case-specific hearsay, the exception for an admission of a party applied. (Evid. Code, § 1220.) During their respective contacts, Bonilla and Hooper also personally observed Gutierrez with the other Junior Mafia members. These observations were not hearsay. (Iraheta, supra, 14 Cal.App.5th at p. 1248.) They were based on their personal visual observations.

Bonilla's and Hooper's testimony independently proved the facts upon which Arevalo relied. Sanchez permitted an expert to relate as true case-specific facts asserted in hearsay statements if "they are independently proven by competent evidence." (Sanchez, supra, 63 Cal.4th at p. 686; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139.) Additionally, because Bonilla and Hooper testified at trial and were subject to cross-examination, Arevalo's testimony about the information they provided did not violate the confrontation clause.²⁷ (Sanchez, at p. 684; Iraheta, supra, 14 Cal.App.5th at p. 1248.)

27 Neither Hooper's F.I. card nor Bonilla's report were admitted. The references to the F.I. card and the report by Arevalo duplicated their respective testimony. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1176.)

3. Statements by Manuel Mendoza that Gutierrez was a Junior Mafia member

Before the jury, Detective Arevalo stated his opinion about Gutierrez's gang membership was partially based on information provided by Manuel Mendoza.²⁸ Arevalo revealed that Mendoza was Gutierrez's brother. Mendoza disclosed Gutierrez's first name, membership in Junior Mafia, and gang moniker of Speedy. Mendoza was not in custody at the time he provided this information to Arevalo. Arevalo stated that, in trust, Mendoza gave him this information, as well as other information. Arevalo specifically told Mendoza that he was not going to write down anything and the information would remain confidential.

28 Escobar complains about statements by Manuel Mendoza that a turf war existed between Junior Mafia and South Los. But Arevalo never testified before the jury that Mendoza told him about the turf war. In the hearing outside the jury's presence, Arevalo discussed four incidents involving Junior Mafia and South Los. The first occurred on February 25, 2013. It involved the shooting of South Los member by a Junior Mafia member. The second was the shooting of Reyna and Alvarez. The third was the shooting of Justin P. and Diego F. The fourth incident involved the shooting of two South Los members. Mendoza was implicated in this shooting. Arevalo explained that Mendoza was recorded in a jail cell, stating the motive for this shooting was to retaliate for the murder of Reyna. None of this information was communicated to the jury.

In the earlier hearing outside the presence of the jury, Arevalo revealed additional details about this information. During two conversations, Arevalo explained that Mendoza told him that his half-brother, Jorge, was a Junior Mafia member with a moniker of Speedy. Arevalo later discovered Gutierrez was Speedy from confidential informants who were Junior Mafia members. The report prepared by Officer Bonilla also indicated that Gutierrez provided the moniker of Speedy. The trial court ruled that Mendoza's statements to Arevalo were admissible.

Arevalo further testified that these conversations with Mendoza occurred during consensual encounters. Arevalo did not document these conversations. During consensual encounters with gang members, to establish rapport, Arevalo often told them that he would not divulge the information they discussed. Arevalo would merely want to learn more about the gang. None of the information here was documented. None of it was produced in the course of an ongoing criminal investigation. (Sanchez, supra, 63 Cal.4th at p. 697; Vega-Robles, supra, 9 Cal.App.5th at p. 413.) Mendoza's statements were thus not testimonial. Accordingly, their admission did not violate the confrontation clause.

However, the statements were hearsay. Arevalo partially relied on them to reach his opinion that Gutierrez was a Junior Mafia member. Thus, they were asserted for their truth. Because no hearsay exception applied, their admission was error.

Although these statements were inadmissible as a matter of state hearsay law, it is not reasonably probable Escobar or Gutierrez were prejudiced by their admission. (Ochoa, supra, 7 Cal.App.5th at p. 589; Stamps, supra, 3 Cal.App.5th at p. 997; Watson, supra, 46 Cal.2d at p. 836.) Officer Bonilla independently testified that Gutierrez admitted to him that he was a Junior Mafia member. Accordingly, any error under state hearsay law was harmless.

4. Statements by unidentified gang members that Escobar and Gutierrez were soldiers in Junior Mafia

Detective Arevalo described Gutierrez and Escobar as "trusted" or "respected" members and "soldiers" of Junior Mafia. He based this description on conversations with other members of Junior Mafia. The other members merely characterized Gutierrez as an "active member." Arevalo did not testify about what the other members said about Escobar.

There were no details as to the circumstances of the conversations that Arevalo had with these other gang members. The record does not indicate these statements were compiled during an official police investigation of a completed crime. Accordingly, we cannot conclude they were testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 695.)

Additionally, because the basis evidence for Arevalo's opinion was so vague, it did not amount to inadmissible case-specific hearsay. Sanchez did not bar an expert from relying on hearsay to form an opinion and telling the jury in general terms that he or she did so. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) Arevalo did just that. He did not specify the details of the conversations he had with the unidentified gang members, other than testifying that they described Gutierrez as an active member.

Even assuming these statements amounted to inadmissible case-specific hearsay, their admission was harmless. Other evidence revealed both Escobar's and Gutierrez's gang membership. As discussed, both admitted to other officers who testified at trial. Thus, it is not reasonably probable Escobar and Gutierrez were prejudiced by the statements of the unidentified gang members. (Ochoa, supra, 7 Cal.App.5th at p. 589; Stamps, supra, 3 Cal.App.5th at p. 997; Watson, supra, 46 Cal.2d at p. 836.) V. No due process violation of Escobar's right to post-arrest silence

Escobar contends that the prosecutor improperly drew attention to his pretrial invocation of the right to silence. He points out two acts by the prosecutor. First, the prosecutor elicited testimony that disclosed Escobar was interviewed by the police. Second, the prosecutor argued to the jurors that Escobar failed to protest his innocence when stopped by the police.

A. Reference to Escobar's interrogation

Los Angeles Police Department Detective Joseph Kirby testified that he participated in the investigation of this case. He was at the police station after Escobar and Gutierrez were arrested. The prosecutor asked, "What role did you have in the investigation?" Kirby responded, "I interviewed the two defendants that night." Counsel for Escobar objected.

The trial court conducted a hearing outside the jury's presence. Escobar argued that the testimony violated Griffin because it implied he had invoked his right to remain silent when interrogated.²⁹ The prosecutor intended to elicit only Escobar's statement to Gutierrez, which was observed by Kirby at the police station. Kirby confirmed to the trial court that the prosecutor told him that he would not be questioned on Escobar's interview.

29 Any claim of Griffin error is misplaced. Under Griffin, a prosecutor may not comment on the defendant's failure to testify. (Griffin, supra, 380 U.S. at pp. 610-611; United States v. Robinson (1988) 485 U.S. 25, 33-34.) Neither Kirby's testimony nor the prosecutor's argument commented on Escobar's failure to testify. There is no reasonable possibility the jurors would have understood it to refer to Escobar's failure to testify at trial.

When the jury returned, the trial court struck the question and Kirby's response. The trial court also admonished the jurors to not consider the answer or question for any purpose. Kirby resumed his testimony. As Escobar was moved to a different part of the station, he yelled at Gutierrez, "You better not snitch."

Under Doyle, a prosecutor may not use a defendant's post-arrest silence following his Miranda advisement to impeach his or her testimony at trial. (Doyle supra, 426 U.S. at pp. 617-618; People v. Clark (2011) 52 Cal.4th 856, 959.) Due process is violated when an arrestee is promised that his or her silence will not be used against him or her and that silence is used to impeach his or her testimony. (Clark, at p. 959.) Doyle specifically prohibits a prosecutor from using a defendant's silence during examination of an interrogating officer before the defendant testifies. (Doyle, at pp. 617-618; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.)

Doyle error has two components. First, the prosecutor must use the defendant's post-arrest silence for impeachment purposes by questioning or by reference in closing argument. Second, the trial court permits that use, legitimizing the prosecutor's conduct to the jurors. (People v. Evans (1994) 25 Cal.App.4th 358, 368.) Doyle error "does not occur unless the prosecutor is permitted to use a defendant's post-arrest silence against him [or her] at trial." (Clark, supra, 52 Cal.4th at p. 959; Greer v. Miller (1987) 483 U.S. 756, 764-765 (Greer).)

Here, neither component was established. Detective Kirby never testified that Escobar invoked his right to silence during his interview. The prosecutor's question also did not imply Escobar invoked his right to silence or evaded any questions during the police interview. Additionally, the trial court did not permit the prosecutor to use Escobar's post-arrest silence. It struck the question to Kirby and his response. It also instructed the jurors to disregard both. There was no risk the jurors would improperly infer Escobar had invoked his right to silence. (Clark, at p. 959; Greer, at pp. 764-765.)

B. Prosecutor's argument about Escobar

In closing argument, counsel for Escobar suggested he was innocently driving when Gutierrez unexpectedly fired shots. In rebuttal argument, the prosecutor disputed this claim. She argued that Escobar did not willingly pull over for the police, exit the car with his hands up, and declare, "I did not know that was about to go down. I am a witness, not a crime partner."

The prosecutor's argument established a pre-arrest, pre-Miranda scenario, not a post-arrest or post-Miranda scenario. The prosecution may use a defendant's silence as impeachment, if he or she has not been advised under Miranda. (People v. Tom (2014) 59 Cal.4th 1210, 1223.) In such a context, the police would not have induced Escobar's silence. Thus, use of the silence would not violate due process.

Most significantly, the trial court did not legitimize the prosecutor's argument. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) The trial court admonished the jurors that counsel's argument is not evidence and they are to only consider the evidence. The trial court also struck the prosecutor's argument about what Escobar could have said. Accordingly, we conclude the prosecutor's comments did not amount to Doyle error. VI. The trial court fulfilled its responsibilities under Pitchess.³⁰

30 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

Gutierrez filed a pretrial discovery motion seeking information from the personnel file of Detective Arevalo under Pitchess. The supporting declaration of defense counsel reflected that on May 15, 2013, Arevalo told a deputy district attorney that Gutierrez had admitted his gang membership to him. Defense counsel, on information and belief, denied Gutierrez made any statement to Arevalo. On May 21, 2014, the trial court granted the motion, limited to the issues of "dishonesty and moral turpitude." The trial court conducted an in camera hearing and ordered the transcript sealed. Following the in camera hearing, the court indicated that it was not ordering discovery.

At Gutierrez's request, with no opposition from the Attorney General, we have reviewed the sealed record of the in camera proceedings. We conclude the court below satisfied the minimum requirements in determining whether to disclose information from the personnel records for Detective Arevalo. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) No abuse of discretion occurred. VII. Discretion to impose concurrent sentences

Escobar and Gutierrez claim the trial court erred by imposing consecutive sentences of 40 years to life on counts 1 and 2 because it was unaware of its discretion to impose concurrent sentences.

Under section 669, a trial court has discretion to impose sentences consecutively or concurrently. "Unless otherwise prohibited by statute, sentences for crimes that carry indeterminate life terms may be imposed concurrently." (People v. Leon (2016) 243 Cal.App.4th 1003, 1025 (Leon); In re Maes (2010) 185 Cal.App.4th 1094, 1099.) The trial court further retained discretion under section 669 to impose concurrent sentences for multiple convictions subject to the alternate penalty provision under section 186.22, subdivision (b)(5). (Leon, at p. 1025.)

"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that [it] may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1480 (Woodworth).)

Here, the record is unclear as to whether the trial court was aware of its discretion to impose concurrent sentences on counts 1 and 2. There was some evidence the trial court was aware of its discretion, including the following actions: reviewing the probation report³¹ and district attorney's sentencing memorandum,³² inviting argument from counsel at the sentencing hearing, ³³ inquiring into whether the prosecution submitted a victim impact statement,³⁴ and discussing mitigating factors. (People v. Leung (1992) 5 Cal.App.4th 482, 501 [concluding the trial court would not have stated reasons for imposing consecutive terms, if it believed they were mandatory].)

31 Escobar's and Gutierrez's probation reports did not expressly address the issue of consecutive versus concurrent sentences. However, they did address aggravating and mitigating factors pertinent to any exercise of discretion in sentencing.

32 The district attorney's three-page sentencing memorandum recommended a prison sentence for both Escobar and Gutierrez of "40-Life" on each of counts 1 and 2. The memorandum noted that "[u]nder this computation, the total sentence for each defendant is 80 to life." Although the memorandum did not use the word "consecutive," it effectively asked the trial court to impose consecutive sentences. The memorandum did not argue in favor of imposing the sentences consecutively, as opposed to concurrently.
Neither Escobar nor Gutierrez filed a sentencing memorandum.

33 Gutierrez's defense counsel stated, "I know that we're in a position where the statute and the court's -- the limitations of the sentence are pretty clear, and it's a very high sentence." Defense counsel then recited mitigating factors that Gutierrez was "a young man with a supportive family," and a "good kid" who did not get into trouble. Letters of recommendation were submitted to the trial court, although they are not part of the record on appeal. As argued by defense counsel, the letters discussed Gutierrez's "exemplary" life. Gutierrez's counsel also stated, "to the extent that the court has any discretion, which I know in this case there isn't much, I'd ask you to exercise that because basically, he, if given the opportunity, could have been anything."
Escobar's counsel submitted the matter without comment.

34 No victim impact statement was submitted.

On the other hand, there was evidence the trial court was unaware of its discretion. On the first day of trial, the trial court stated, "If you are convicted on this type of case, there's not much a judge can do. . . . Because the sentencing requirements are mandated by statute. Most of them are. There's very, very little discretion. In other words, there's little I can do with your sentence." More significantly, before imposing sentence, the trial court addressed the mitigating and aggravating factors for Gutierrez. It noted he was "sort of the good child." But commented, "[I]t was Mr. Gutierrez who had the gun in his hand. It was Mr. Gutierrez who decided to pull the trigger. Although that does not make a difference, I did need to address that issue because this is, as [Gutierrez's counsel] states, it's mandatory sentencing. And the court will follow the mandatory sentence and sentence the defendants as follows."

In light of the above ambiguity, the record does not conclusively show the trial court realized it had discretion to impose a concurrent sentence.³⁵ (Woodworth, supra, 245 Cal.App.4th at p. 1480.) A limited remand for resentencing is appropriate to allow the court to exercise its discretion in deciding whether to impose concurrent or consecutive sentences. (Leon, supra, 243 Cal.App.4th at p. 1026; People v. Carrasco (2008) 163 Cal.App.4th 978, 995.)

35 We reject the Attorney General's argument that the record shows remand is unnecessary because the trial court would impose the same sentence even if it exercised its discretion. (People v. Coelho (2001) 89 Cal.App.4th 861, 889; People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195.)

We will vacate Escobar's and Gutierrez's sentences and remand for sentencing. On remand, the trial court shall exercise its discretion to impose consecutive or concurrent sentences on counts 1 and 2 and resentence Escobar and Gutierrez. If the trial court imposes consecutive sentences, it must state the reasons for its decision. (Cal. Rules of Court, rule 4.406(b)(5); Leon, supra, 243 Cal.App.4th at p. 1027.) The trial court may consider the full range of options available upon resentencing.³⁶ We express no opinion as to which alternative, concurrent or consecutive sentences, the trial court should choose.³⁷

36 Upon resentencing, the trial court should address the terms provided by the gang penalty provision for counts 1 and 2, as noted above. For Escobar, this includes addressing the limitation established by section 12022.53, subdivision (e)(2). The trial court should also address any enhancements that were found true by the jury but not previously addressed. The trial court should further dismiss any enhancements which were alleged in the information but not found true by the jury.

37 In light of the above analysis, there is no need to reach the issues of (1) whether the sentences constituted cruel and unusual punishment, and whether that issue was preserved for appellate review, (2) whether the trial court abused its discretion by imposing consecutive instead of concurrent sentences on counts 1 and 2, or erred by failing to state reasons for imposing consecutive sentences, or (3) whether Escobar or Gutierrez received ineffective assistance of counsel regarding these matters.

DISPOSITION

Escobar's and Gutierrez's sentences are vacated and the matter is remanded with directions to the trial court to clarify whether it is aware of its discretion to impose concurrent sentences on counts 1 and 2, and to expressly exercise that discretion and resentence accordingly. The trial court may consider the full range of options available to it at that time. Thereafter, the Clerk of the Superior Court is directed to forward a new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HANASONO, J.^* We concur:

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

EDMON, P. J.

LAVIN, J.