Opinion
E073047
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN GUADALUPE FLORES, Defendant and Appellant.
Cameron Jay Talley for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1704220) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Cameron Jay Talley for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
On October 2, 2017, a member of the 1200 Blocc Crips was in front of a house, talking to his uncle, when he was shot. Three bullets struck him — in the chest, in the shoulder, and in the back — but he survived. In his statements to the police, he identified defendant Esteban Guadalupe Flores as one of the two Hispanic males who walked up to him and fired shots at him. He knew defendant from school and knew that he was a member of East Side Riva. He added that defendant and the other Hispanic male threw East Side Riva gang signs and yelled "East Side Riva" before shooting. At trial however, the victim claimed he did not remember seeing the shooter(s) or talking to the police.
In a jury trial, defendant was found guilty of willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)), with a gang enhancement (§ 186.22, subd. (b)(1)) and an enhancement for personally and intentionally discharging a firearm and causing great bodily injury (§ 12022.53, subd. (d)). He was sentenced to a total of 40 years to life in prison.
These and all further statutory citations are to the Penal Code, unless otherwise indicated.
Defendant's appellate contentions focus on the gang enhancement — and specifically, on the evidence that defendant's fellow gang members had committed "predicate offenses," which was a necessary element of the gang enhancement. First, he contends that the trial court erred by allowing the prosecution to reopen in order to substitute certified copies for uncertified copies of the court records of the predicate offenses. Second, he contends that there was insufficient evidence of the predicate offenses.
We disagree with both contentions. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Testimony About Exhibits 19 and 20.
The prosecution gang expert authenticated Exhibit 19 as "the case print for People versus Andrew Mu[ñ]oz, case RIF1506396[.]"
Exhibit 19 consisted of (1) a complaint charging Muñoz with attempted murder, allegedly committed on October 19, 2015, and (2) a plea form in which Munoz agreed to plead guilty to assault with a deadly weapon. It was not a certified copy.
The gang expert identified Muñoz as a member of East Side Riva. When asked when Muñoz's crime was committed, he answered July 2015. The prosecutor asked him to refresh his recollection by looking at his report. He then answered October 19, 2017.
Next, the gang expert authenticated Exhibit 20 as "the People versus Isaac Sanchez case[.]"
Exhibit 20 consisted of (1) a complaint charging Sanchez with, among other things, assault on a police officer by means of force likely to cause great bodily injury, allegedly committed on July 19, 2015, and (2) a plea form in which Sanchez agreed to plead guilty to assault on a police officer by means of force likely to cause great bodily injury. It, too, was not a certified copy.
The gang expert identified Isaac Sanchez as a member of East Side Riva. He was not asked when the crime was committed.
B. Admission of Exhibits 31 and 32.
After both sides rested, the trial court held an exhibits conference.
When the prosecutor moved to admit Exhibit 19, defense counsel did not object. The trial court, however, said it did not recall any evidence that the copies were certified. It added, "[I]t's hearsay. It's flat-out hearsay with no exceptions, unless they're certified."
The prosecutor asked the trial court to take judicial notice of the records. Defense counsel objected, "The evidence is now closed."
The prosecutor then asked to reopen. Initially, the trial court denied the request. However, it took a recess to allow both sides "to look into the issue."
After the recess, in response to the trial court's questions, defense counsel conceded that he knew the prosecution intended to use Muñoz and Sanchez's convictions as predicate offenses. He also conceded that allowing the prosecution to reopen would not prejudice the defense and was "within the Court's discretion."
The trial court then ruled that it would allow the prosecution to reopen in order to substitute certified copies for the uncertified copies. It observed, "All that's missing is the red stamp."
The next day, the prosecutor moved to admit Exhibits 31 and 32. Exhibit 32 was identical to Exhibit 19, except that it was certified and it attached Muñoz's abstract of judgment.
Likewise, Exhibit 31 was identical to Exhibit 20, except that it was certified and it attached Sanchez's abstract of judgment.
The trial court noted for the record, "I do have the amended felony complaints in [Muñoz and Sanchez's cases]. Attached to those are the abstracts of judgment, and they are certified." Defense counsel did not object. Accordingly, the trial court admitted Exhibits 31 and 32.
II
REOPENING TO SUBSTITUTE CERTIFIED COPIES
Defendant contends that the trial court erred by allowing the prosecution to reopen and to substitute the certified copies for the uncertified copies.
"'A "motion to reopen [is] one addressed to the [trial] court's sound discretion." [Citation.] In determining whether an abuse of discretion occurred, the reviewing court considers four factors: "'(1) the stage the proceedings had reached when the motion was made; (2) . . . diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.'" [Citation.]' [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1069.)
Taking these four factors from last to first:
The evidence was highly significant. As we will discuss in more detail in part III, post, without the exhibits, the prosecution could not prove the gang enhancement.
There was no likelihood that the jury would accord the new evidence undue emphasis. It had already heard the gang expert's testimony about Exhibits 19 and 20, without objection. As the trial court observed, the only difference between a certified copy and an uncertified copy is a red stamp; while this is crucial to the admissibility of the copy (see Evid. Code, § 452.5), it is a stuffy formality to the jury.
We recognize that Exhibits 31 and 32 ended up including abstracts of judgment, which had not been included in Exhibits 19 and 20. When the trial court granted the prosecution's request to reopen, however, Exhibits 31 and 32 were not yet before it. It indicated that it was giving the prosecution leave to introduce identical copies.
The next day, when the prosecution actually introduced Exhibits 31 and 32, defense counsel did not object on the ground that they included the abstracts of judgment. Indeed, he did not object at all. Accordingly, he forfeited any error arising out of the inclusion of the abstracts of judgment.
The trial court could find that the prosecution was reasonably diligent. The prosecutor made defense counsel aware that he was going to rely on the predicate offenses, he produced the uncertified copies, and he elicited testimony about them without objection. He made a mistake, but an inadvertent one.
Finally, the prosecutor moved to reopen at almost the earliest possible moment. Defense counsel had made a motion for acquittal (§ 1118.1), but it had not focused on the gang enhancement; indeed, defense counsel had not offered any argument in support of it at all. In any event, "'[t]he court always has discretion to allow the prosecution to reopen after a [motion for acquittal] so long as the court is convinced that the failure to present evidence on the issue was a result of "inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant]." [Citation.]' [Citation.]" (People v. Riley (2010) 185 Cal.App.4th 754, 764-765.) The jury had not yet been instructed, the attorneys had not yet delivered their closing arguments, and the jury had not begun deliberating. The proceedings were not significantly delayed.
Defendant argues that reopening is allowed only for the purpose of presenting evidence to the jury. Here, however, the prosecution did present the evidence to the jury; it was admitted, and presumably it went to the jury room. Indeed, if the prosecution were allowed to reopen but did not present evidence to the jury, any error would be harmless.
Defendant's point seems to be that there was no testimony about Exhibits 31 and 32. However, the gang expert had already authenticated Exhibits 19 and 20. To the extent that Exhibits 31 and 32 were identical to Exhibits 19 and 20, that testimony necessarily also authenticated Exhibits 31 and 32. Moreover, even aside from his testimony, a certified copy of a public record is self-authenticating. (Evid. Code, § 1530, subd. (a)(2); People v. Skiles (2011) 51 Cal.4th 1178, 1186.)
Admittedly, Exhibits 31 and 32 also included abstracts of judgment. We repeat, however (see fn. 2, ante), that defense counsel forfeited any objection to this. In any event, the certification sufficed to authenticate the abstracts of judgment, as well, even without any witness testimony.
Defendant asserts that his appellate counsel "could not find a single case in support of reopening of evidence to admit evidence that was not presented to the trier of fact." Such a case exists, however. In People v. Berryman (1936) 6 Cal.2d 331, disapproved on unrelated grounds in People v. Green (1980) 27 Cal.3d 1, 28-34, after both sides had rested, the prosecution moved to reopen to admit a bottle, which had been marked for identification but not offered into evidence. There had already been testimony that a bottle, with the defendant's fingerprints on it, had been found in the deceased victim's car. (Id. at pp. 338-339.) The Supreme Court held: "There was no error in permitting the case to be opened for the purpose of admitting this exhibit in evidence." (Id. at p. 339.) It noted that the bottle had already "been properly identified by competent evidence during the progress of the trial." (Ibid.)
Defendant also argues that the uncertified copies were inadmissible hearsay. That is correct. An uncertified copy of a record of conviction is an out of court statement, and hence inadmissible when used, as here, to prove the truth of the matters stated in it. (Evid. Code, § 1200.) By contrast, under a specific hearsay exception, a certified copy of "[a]n official record of conviction" is admissible "to prove the commission . . . of a criminal offense, prior conviction, . . . or other act, condition, or event recorded by the record." (Evid. Code, § 452.5, subd. (b).) Here, however, the uncertified copies were not admitted, so there was no error.
In his reply brief, defendant expands on — and somewhat alters — this argument. He argues that, because Exhibits 19 and 20 were hearsay, the gang expert's testimony, to the extent that he relied on Exhibits 19 and 20, was also hearsay.
The obvious answer to this is that defense counsel forfeited this argument by failing to object to the gang expert's testimony on hearsay grounds. (Evid. Code, § 353, subd. (a).) "'Under a[] long-standing rule, "incompetent hearsay admitted without objection is sufficient to sustain a finding or judgment."' [Citation.]" (People v. Baker (2012) 204 Cal.App.4th 1234, 1245.)
The less obvious answer is that an expert can testify to facts based on hearsay — even "case-specific" hearsay — if "they are independently proven by competent evidence . . . ." (People v. Sanchez (2016) 63 Cal.4th 665, 686.) Here, we question whether the gang expert relied on Exhibits 19 and 20 at all. He testified that he had personal knowledge of Muñoz's case, and he had reviewed reports on Sanchez's case. In our view, he merely authenticated these exhibits. But even if he did rely on them, ultimately their content was independently proven by Exhibit 31 and 32.
Again, defense counsel did not object to this. --------
III
THE SUFFICIENCY OF THE EVIDENCE OF THE PREDICATE OFFENSES
Defendant contends that there was insufficient evidence of the predicate offenses.
One of the elements of a gang enhancement (§ 186.22, subd. (b)) is "a pattern of criminal gang activity." (Id., subds. (b), (e), (f), (j).) This is defined, as relevant here, as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain specified] offenses, provided . . . the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ." (Id., subd. (e).) Offenses that are used to satisfy this element are commonly called the "predicate offenses."
Here, Exhibit 32 showed that Muñoz had been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), allegedly committed in October 2015.
Similarly, Exhibit 31 showed that Sanchez had been convicted of assault on a police officer by means of force likely to cause great bodily injury (§ 245, subd. (c)), allegedly committed in July 2015.
Both crimes can qualify as predicate offenses. (§ 186.22, subd. (e)(1).) They were committed on separate occasions and by two separate persons. The October 2015 predicate offense occurred less than three years after the July 2015 predicate offense. And the gang expert testified that both Muñoz and Sanchez were members of East Side Riva.
Defendant argues that the gang expert's testimony did not establish that the predicate offenses were committed within the necessary time frame. The expert did not testify to the date of Sanchez's crime. And, as defendant points out, the expert mistakenly testified that Muñoz's offense was committed on October 19, 2017. That would be after than the current charged crime, which was committed on October 2, 2017. "'[C]rimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity.' [Citation.]" (People v. Garcia (2020) 46 Cal.App.5th 123, 166.)
This argument ignores the fact that, as we discussed in part II, ante, Exhibits 31 and 32 — which showed the time frame — were properly in evidence. They were admissible, under Evidence Code section 452.5, to prove any "act, condition, or event [they] recorded . . . ." And as we also held, even if they were inadmissible hearsay, defense counsel did not object on that ground; hence, they were substantial evidence that could support a verdict.
Defendant does not argue that, even if Exhibits 31 and 32 were admissible and were in evidence, they were insufficient to prove the predicate offenses. He has forfeited any such argument. Moreover, the only such argument we can even imagine is that the complaints included in Exhibits 31 and 32 merely alleged the dates the crimes were committed, and thus they did not "record" (Evid. Code, § 452.5) that the crimes were actually committed on those dates. Even if so, the abstracts of judgment recorded that each of the crimes were committed in 2015.
We therefore conclude that there was sufficient evidence of the predicate offenses to support the gang enhancement.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. RAPHAEL
J.