Opinion
C078517 C079038
08-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS FUENTES, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MATTHEW GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF132466) (Super. Ct. Nos. CRF132466, CRF133331)
Defendants Juan Carlos Fuentes and Justin Matthew Gonzalez (collectively, defendants) and two other codefendants, each a Norteño gang member, attacked the victim outside of a convenience store in Woodland, took his bicycle and various items he purchased at the store, and then fled from the scene, Fuentes on the bicycle. Apprehended a short time later, the four were tried together for robbery (Pen. Code, § 211), assault by means likely to produce great bodily injury (§ 245), and gang participation (§ 186.22, subd. (a)), with gang enhancements attached to the first two counts (§ 186.22, subd. (b)); Fuentes was additionally charged with resisting a peace officer (§ 148).
Undesignated statutory references are to the Penal Code.
Defendants and their codefendants were convicted by jury of gang participation. Fuentes was also convicted of robbery, with a true finding for the gang enhancement attached to that count, and resisting a peace officer. The jury could not reach a unanimous verdict regarding the remaining counts, resulting in a declaration of mistrial as to them. Finally, with respect to Fuentes, after the prosecution was allowed to amend the information to allege a prior juvenile adjudication as a strike offense within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), the trial court found that allegation to be true. The trial court sentenced Fuentes to serve an aggregate determinate term of 16 years in state prison and sentenced Gonzalez to serve eight months consecutive to a four-year state prison term imposed in another case.
The prosecution declined to retry those counts. With the exception of Fuentes's resisting a peace officer conviction, the convictions were obtained after three attempts. The first trial resulted in Fuentes being convicted of resisting a peace officer, but the jury could not reach a unanimous verdict regarding the remaining counts and the trial court declared a mistrial as to them. The second trial resulted in a mistrial after the trial court discovered two jurors knew members of the defendants' families. The third trial resulted in the remaining convictions and enhancement findings that form the basis of the claims raised in these appeals.
Defendants filed separate appeals that we consolidated for purposes of oral argument and disposition. They each claim (1) the evidence is insufficient to support the gang participation convictions/gang enhancement finding following our Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty), and (2) the trial court prejudicially abused its discretion and violated their constitutional right of confrontation by allowing the prosecution's gang expert to relate testimonial hearsay to the jury during his testimony. With respect to the latter claim, we directed the parties to submit supplemental briefing regarding the import of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) on this issue. We conclude the evidence is sufficient to support the gang participation convictions and gang enhancement finding. And while the gang expert did relate some testimonial hearsay during his testimony in violation of defendants' confrontation rights, we conclude the violation was harmless beyond a reasonable doubt.
Turning to claims raised by Gonzalez alone, he asserts (3) the trial court should have granted his motion for mistrial because it admitted evidence obtained in violation of his Fourth Amendment rights, i.e., the contents of his cell phone; and (4) the trial court prejudicially abused its discretion and violated his federal constitutional rights by denying his motion to bifurcate trial of the gang enhancement allegations and sever the gang participation count. The first claim is based on Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473; 189 L.Ed.2d 430] (Riley), decided by the United States Supreme Court after the cell phone evidence was admitted but before the jury began deliberations. While Gonzalez's Fourth Amendment rights were violated by admission of this evidence, the appropriate remedy for this particular violation was not exclusion of the evidence. Accordingly, the trial court did not abuse its discretion in denying the new trial motion. With respect to the bifurcation/severance motion, we conclude that even assuming the trial court abused its discretion or violated Gonzalez's constitutional rights by denying the motion, there was no conceivable prejudice.
Finally, turning to claims raised by Fuentes alone, he contends (5) the strike finding must be reversed because the prosecution's amendment of the information to add this allegation after the first trial ended in a mistrial due to a deadlocked jury constituted vindictive prosecution, and (6) the use of Fuentes's juvenile adjudication as a strike violated his right to jury trial. The latter claim has been rejected by our Supreme Court and we are bound to do the same, as Fuentes admits in his briefing. We also reject his assertion of vindictive prosecution. The People could not allege the juvenile adjudication as a prior strike until the juvenile court lifted the deferred entry of judgment (DEJ) with respect to that adjudication. Because the People tried several times to lift the DEJ prior to the first trial, and promptly moved to amend the information to allege the prior strike once the DEJ was lifted, we conclude any inference the strike allegation was added for a vindictive purpose has been sufficiently negated. Lastly, we reject Fuentes's assertion the use of his juvenile adjudication as a strike violated his right to jury trial because this claim has been rejected by our Supreme Court.
We shall therefore affirm the judgments.
FACTS
In June 2013, the victim and his girlfriend were spending time together at his mother's house in Woodland. They each regularly used methamphetamine. Sometime after midnight, the girlfriend said she wanted doughnuts from the 7-Eleven not far from the house, so they borrowed two bicycles (belonging to the victim's mother and her roommate) and rode to the store. After parking the bicycles in front of the store, they went inside to buy the doughnuts and some other items. As they returned to the bicycles with their purchases, two or three young men were coming into the store. Someone in this group called the girlfriend a "tweaker," which made her nervous because, as she explained: "I was hoping [the victim] didn't hear it" and, "he's got a bad temper." The victim heard, but not clearly enough to make out what was said. He and his girlfriend picked up their bicycles and prepared to head back.
Another group of young men was outside the store. This group included Fuentes and Gonzalez, as well as their codefendants, Anthony Ozuna and Jose Jimenez. Gonzalez said to the victim's girlfriend: "Bitch, you got a dollar?" The victim heard this clearly enough and responded: "Who the fuck are you talking to[?]" Someone in the group then said, "Bosque," referring to the Norteño gang in Woodland, Varrio Bosque Norte (VBN). Fuentes also told the victim they would be taking his bicycle. The victim was not affiliated with any gang, but knew what "Bosque" meant and responded: "Fuck Bosque." At that, someone in the group "ran up and started swinging." The victim dropped the bicycle and the groceries and punched back, knocking the initial attacker to the ground. The others in the group then joined in the fray, "one right after another." Members of the group yelled, "Bosque" and "Norté" during the attack and also called the victim a "scrap," a term used by Norteño gang members primarily to show disrespect to rival Sureño gang members, but also used as a general insult. At one point, Ozuna reached under his shirt and said: "Should I shoot this Nigga?" The victim could not see whether he had a gun or not.
The attack ended when the victim's shoulder became dislocated and he could no longer defend himself, prompting him and his girlfriend to run across the street to a Taco Bell and ask for help. The victim's girlfriend brought her bicycle with them as they ran. When she looked back, she saw that someone in the group initially gave chase, but tripped and fell down. She then saw Fuentes take the bicycle they left behind and the group fled from the 7-Eleven, Fuentes on the bicycle. The attackers also took the items the victim and his girlfriend bought at the store.
Law enforcement officers were immediately dispatched to the scene. When one officer approached the intersection where the Taco Bell was located, i.e., Main Street and Cottonwood Street, a woman—apparently the victim's girlfriend—flagged him down, pointed southbound on Cottonwood, and yelled: "There they go." The officer drove as directed and apprehended Jimenez and another young man about one block away. As a different officer was driving down Main towards Cottonwood, he saw three young men, two running and one on a bicycle, heading down a side street off of Main one block from the Taco Bell. The officer turned down the side street and apprehended the two runners, Gonzalez and Ozuna. Fuentes rode the bicycle into the back of an apartment complex on the same street. He was later found hiding in some bushes nearby and also apprehended, after some resistance.
During three in-field show-ups, the victim's girlfriend positively identified defendant and codefendant as participants in the attack on her boyfriend. The victim also participated in two separate in-field show-ups and also positively identified each person, with the exception of Fuentes (only the victim's girlfriend was asked to identify Fuentes), as having participated in the attack. At trial, the victim and his girlfriend each denied being able to identify any defendant or codefendant.
Based on the foregoing, as relevant to these appeals, Gonzalez and Fuentes were each convicted of active gang participation and Fuentes was further convicted of robbery and resisting a peace officer, with a gang enhancement allegation attached to the robbery found to be true.
DISCUSSION
We first address two contentions raised by both defendants: the gang participation convictions and the gang enhancement finding must be reversed for insufficient evidence; and even if supported by sufficient substantial evidence, they must be reversed for related constitutional error. We then address two contentions raised by Gonzalez alone, followed by two contentions raised by Fuentes alone. As we shall explain, while there were two constitutional violations, neither requires reversal of the judgments.
I
Sufficiency of the Gang Evidence
Defendants contend the evidence was insufficient to establish their Norteño subset, VBN, was the same gang that committed the predicate offenses testified to by the prosecution's gang expert, Detective John Perez, requiring reversal of the gang participation convictions and the gang enhancement attached to Fuentes's robbery conviction. Gonzalez also brings additional challenges to the sufficiency of the evidence supporting his gang participation conviction. We conclude the evidence was sufficient to support these convictions and enhancement finding.
A.
The Street Terrorism Enforcement and Prevention (STEP) Act
The STEP Act was enacted in 1988 "to seek the eradication of criminal activity by street gangs." (§ 186.21.) The STEP Act creates both a substantive offense for active participation in any criminal street gang (§ 186.22, subd. (a)) and an enhancement to be imposed where any person is convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)).
The elements of the substantive offense are: (1) "active participation in a criminal street gang, in the sense of participation that is more than nominal or passive," (2) "knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity," and (3) "the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The elements of the gang enhancement are: (1) commission of a felony "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) with "the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).)
"To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) "A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]" (Ibid.)
B.
Gang Evidence Adduced at Trial
To satisfy the "criminal street gang" requirement of both the gang crime and the gang enhancement, Detective Perez testified Woodland's gang activity was conducted primarily by two rival Hispanic gangs, the Norteños and the Sureños. As their names indicate, Norteños are primarily a Northern California gang, while Sureños are primarily a Southern California gang. However, each gang has members throughout the state, typically divided into various subsets based on their geographic location. The Norteño subset in Woodland, VBN, claimed the entire city as its territory and committed an estimated 80 to 85 percent of the gang activity. A smaller subset of rival Sureño gang members, East Side Trece, also operated out of Woodland.
Regardless of subset, Norteño gang members use the color red and the number 14 (representing the letter N, the 14th letter of the alphabet) as common symbols. They also share a common enemy, Sureño gang members. As mentioned, Norteño gang members often refer to their Sureño rivals as "scraps," an insult that will typically start a fight between the gangs.
Detective Perez also testified Norteño gang members in Woodland commonly commit a number of crimes listed in section 186.22, subdivision (e), including murder, attempted murder, robbery, carjacking, assaults with deadly weapons, unlawful weapons possession, and possession of drugs for sale. This testimony was based on his personal investigation of such crimes committed by Norteño gang members in the city. The detective then testified regarding three predicate offenses committed in Woodland, each of which he personally investigated. The first predicate offense involved Robert Cordare and another Norteño gang member, who chased two Sureño gang members into a backyard, cornered one of them, and then assaulted him with a stun gun, threw a barbecue grill on top of him multiple times, and also hit him with a bottle. Cordare was convicted of assault with a deadly weapon or force likely to produce great bodily injury with a gang enhancement allegation found to be true. The second predicate offense involved Carlos Hernandez Chavarrin, a Norteño gang member, who was found to be in possession of a Tec-9 assault rifle while in the company of three other Norteño gang members. He was convicted of possession of an assault rifle with a gang enhancement allegation found to be true. The third predicate offense involved Juan Reyes and two other Norteño gang members, who participated in a drive-by shooting of a known Sureño's house in a housing development associated with the Sureño gang in Woodland. Reyes was convicted of attempted murder with a gang enhancement allegation found to be true.
Turning to the defendants in this case, Detective Perez testified each was an active Norteño gang member at the time the crimes in this case were committed. With respect to Fuentes, the detective testified he participated in an investigation involving an incident in which Fuentes was attacked by five Sureño gang members. During the attack, Fuentes was hit with a baseball bat and stabbed twice in the neck. On another occasion, the detective encountered Fuentes while doing "proactive enforcement," i.e., patrolling certain areas of Woodland in search of criminal gang activity. Fuentes was in the company of five other Norteño gang members, including codefendants Ozuna and Jimenez, and was wearing a black and red hooded jacket and red rosary necklace. Aside from the foregoing personal contacts with Fuentes, the detective testified he reviewed a contact with law enforcement in which Fuentes was in the company of two other Norteño gang members and was wearing black and red checkered shorts and carrying a red bandanna and red batting gloves. During another police contact, Fuentes was again in the company of Norteño gang members and was wearing a black t-shirt with the following written boldly in red: "Welcome to my hood" and "530." The shirt also had a nautical star, a symbol that has been co-opted by the Norteño gang as one of its symbols. During the contact, Fuentes admitted to "flying his colors" on behalf of the gang. During two other police contacts, Fuentes was also wearing red clothing. Additionally, based on photographs that were admitted into evidence, the detective identified various Norteño-related tattoos on Fuentes's body, such as a single dot on one wrist and four dots on the other wrist (indicating the number 14), and the outline of Yolo County with the letters "VBN" written inside. Finally, the detective testified the "Mongolian-style haircut" Fuentes had at the time of the crimes committed in this case was commonly worn by Norteño gang members in Woodland.
With respect to Gonzalez, the detective testified he reviewed a field interview (FI) card indicating Gonzalez was contacted by law enforcement officers while wearing unspecified "gang clothing" and while in the company of two other Norteño gang members in the same housing development known to be a Sureño area of Woodland. On another occasion, Gonzalez was contacted by a different officer while wearing red shoelaces. On a different occasion, officers responded to a fight in progress call and contacted Gonzalez and two other Norteño gang members as they ran from the area; Gonzalez was in possession of a red bandanna. On another occasion, Gonzalez was contacted in the company of another Norteño gang member while wearing unspecified gang clothing. A photograph of Gonzalez was taken during a different police contact; Gonzalez was wearing a red belt, hat, and necklace, all of which the detective testified were associated with Norteño membership. On a different occasion, sheriff's deputies responded to a gang-related fight between Norteños and Sureños, during which the word "Bosque" was being yelled out. Gonzalez was contacted at the scene of the fight with two other Norteño gang members. On yet another occasion, a cab driver identified Gonzalez as one of four people who robbed him, indicating Gonzalez was the one who hit him in the face with a flashlight before taking his money. On a different occasion, Gonzalez was in the company of at least two other Norteño gang members when a car occupied by Sureños pulled up and fired a shotgun at the group, hitting Gonzalez. On two other occasions, Gonzalez was contacted while wearing a Boston Red Sox cap, often worn by VBN members because of the red color and the letter "B," which they have co-opted to signify "Bosque." Immediately preceding one of these contacts, Gonzalez was shot in the leg. At the hospital, he said he did not know why he was shot but assumed it was because he was a Norteño gang member. The person who drove Gonzalez to the hospital also identified him as a Norteño during the contact.
Finally, the detective testified to the contents of Gonzalez's cell phone that contained several pictures relevant to his gang membership. In one, Gonzalez was making a Norteño gang sign, representing the number 14. In another, Gonzalez was wearing a red checkered shirt and making a different Norteño gang sign, representing the letter "B" for "Bosque." In three other photographs, Gonzalez was in the company of Fuentes and codefendants Jiminez and Ozuna; in a fourth, Gonzalez was in the company of Fuentes and Jimenez. In each, one or more of them are making Norteño gang signs. Each was time stamped as having been taken the night of the crimes committed in this case.
We address the propriety of introducing this cell phone evidence in part III of the discussion.
C.
"Associational or Organizational Connection"
Defendants argue the evidence was insufficient to establish their Norteño subset, VBN, was the same gang that committed the required predicate offenses. We disagree.
In Prunty, supra, 62 Cal.4th 59, our Supreme Court held that where "the prosecution's case positing the existence of a single 'criminal street gang' . . . turns on the existence and conduct of one or more gang subsets, . . . the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) The court continued: "That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization. [¶] Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22[, subdivision] (b). But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Id. at pp. 71-72, fns. omitted.)
Here, unlike Prunty, supra, 62 Cal.4th 59, the prosecution's case did not turn on the existence and conduct of more than a single subset of the Norteño gang. The evidence established defendants were members of the VBN subset of the Norteño gang. This subset was the "criminal street gang" in which they participated when assaulting and robbing the victim in front of the convenience store, as evidenced by the fact someone in their group said, "Bosque" immediately before the attack, and others in the group yelled, "Bosque" and "Norté" during the attack. While Detective Perez did not specifically state the perpetrators of the predicate offenses were members of VBN, each gang-related crime was committed by a Norteño gang member in Woodland and VBN was the only subset of the Norteño gang in the city. For this reason, we conclude a reasonable inference arises that VBN members committed the predicate offenses. Therefore, Prunty does not apply. Indeed, it would defy common sense to require a prosecutor to prove an associational or organizational connection between a gang subset and itself. In short, viewing the detective's testimony as a whole, we conclude each time he referred to Norteño gang members committing crimes in Woodland, he was referring to members of the VBN subset.
While not specifically raised in the briefing, the same reasoning applies to the "primary activities" requirement. Although the detective did not specifically state VBN members commonly committed murder, attempted murder, robbery, carjacking, assaults with deadly weapons, unlawful weapons possession, and possession of drugs for sale, he testified Norteño gang members in Woodland did so. Again, VBN was the only Norteño subset in Woodland.
We conclude the evidence sufficiently established the "criminal street gang" in which defendants participated, and which Fuentes benefitted by committing the robbery, was "the same 'group' that . . . committed the predicate offenses and engaged in criminal primary activities" within the meaning of section 186.22. (Prunty, supra, 62 Cal.4th at p. 72.)
D.
Gonzalez's Remaining Arguments
Gonzalez also claims the prosecution did not establish one of the elements of the gang participation charge, i.e., he "engaged in felonious conduct with a criminal street gang." He is mistaken.
Section 186.22, subdivision (a), criminalizes active participation in a criminal street gang, i.e., "involvement with a criminal street gang that is more than nominal or passive" (People v. Castenada (2000) 23 Cal.4th 743, 747), and "limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity." (Id. at p. 749.)
Gonzalez does not dispute that commission of a gang-related robbery and assault with fellow gang members would satisfy these requirements. Instead, he argues the prosecution failed to prove he aided and abetted in the commission of those crimes, "as evidenced by the jury's inability to unanimously agree" as to his guilt. However, as the Attorney General properly points out, "[i]nconsistent verdicts alone do not establish insufficient evidence." (People v. Hussain (2014) 231 Cal.App.4th 261, 273.) Thus, even if the jury had acquitted Gonzalez of the robbery and assault charges, this would not require reversal of the gang participation conviction. (Ibid.; see also People v. Santamaria (1994) 8 Cal.4th 903, 911 ["if an acquittal of one count is factually irreconcilable with a conviction on another, . . . effect is given to both"].) This is because "[t]he jury may have been convinced of guilt but arrived at an inconsistent acquittal . . . 'through mistake, compromise, or lenity . . . .' " (Ibid., quoting United States v. Powell (1984) 469 U.S. 57, 65 [83 L.Ed.2d 461, 469].) Here, the jury did not acquit Gonzalez of robbery or assault. There was, however, at least one holdout with respect to these charges. But the same line of reasoning applies. Even the holdout or holdouts may well have been convinced of Gonzalez's participation in the robbery or assault, supporting conviction for the gang crime, but nevertheless voted to acquit him of the specific robbery and assault charges through mistake, compromise, or lenity.
Our task in reviewing this sufficiency of the evidence claim is simply to determine whether the record, viewed in the light most favorable to the judgment, contains evidence that is reasonable, credible, and of solid value, and from which a reasonable trier of fact could find Gonzalez aided and abetted felonious criminal conduct by gang members. (See People v. Smith (2005) 37 Cal.4th 733, 738-739.) As mentioned, during separate in-field show-ups, both the victim and his girlfriend identified Gonzalez as having participated in the robbery and assault. Detective Perez testified Gonzalez was a VBN gang member based in part on his review of prior police contacts and photographs obtained from Gonzalez's cell phone. He testified Fuentes and the other codefendants were also VBN gang members. And based on a hypothetical scenario tracking the facts of these crimes, including the word "Bosque" being uttered prior to the confrontation and yelled out during the attack, the detective testified the crimes benefitted VBN by "showing a strong gang presence" and creating "fear and intimidation" in people witnessing the crimes. This evidence is more than sufficient to establish Gonzalez aided and abetted in felonious criminal conduct by gang members.
As we explain in parts II and III, admission of some of this evidence violated Gonzalez's right of confrontation and his right against unreasonable search and seizure. However, in "reviewing the sufficiency of the evidence . . . [we] must consider all of the evidence presented at trial, including evidence that should not have been admitted." (People v. Story (2009) 45 Cal.4th 1282, 1296.)
Finally, we also reject Gonzalez's assertion that the prosecution failed to establish one of VBN's primary activities is the commission of one or more statutorily enumerated criminal offenses. "[E]vidence of either past or present criminal acts listed in subdivision (e) of section 186.22 is admissible to establish the statutorily required primary activities of the alleged criminal street gang. . . . The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Here, as previously mentioned, Detective Perez testified the Norteño gang in Woodland, i.e., VBN, commonly committed a number of criminal acts listed in section 186.22, subdivision (e), including murder, attempted murder, robbery, carjacking, assaults with deadly weapons, and possession of drugs for sale. Each of the predicate offenses to which he testified also qualified as subdivision (e) offenses, as did the robbery Fuentes was convicted of committing in this case. Thus, contrary to Gonzalez's argument on appeal, we cannot conclude this testimony established no more than "occasional commission" of such crimes. Nor are we persuaded by his argument the detective's testimony in this regard "is based on an unknown source of information." The detective specifically stated his testimony was based on his personal investigation of such crimes committed by Norteño gang members in Woodland.
In sum, we conclude the evidence was more than sufficient to establish Gonzalez aided and abetted in felonious criminal conduct by members of VBN and one of VBN's primary activities was the commission of one or more offenses enumerated in section 186.22, subdivision (e).
II
Confrontation Violation
Having determined the evidence admitted against defendants amounted to sufficient substantial evidence to support their gang participation convictions and Fuentes's gang enhancement finding, we must now determine whether reversal is nevertheless required by Sanchez, supra, 63 Cal.4th 665.
In Sanchez, our Supreme Court held: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.) There, the prosecution's gang expert based his opinion the defendant was a member of a certain gang on various police contacts, during which the defendant was in the company of members of that gang, and on statements he made when given a "STEP notice" informing him that he was associating with a known gang. (Id. at pp. 672-673.) The expert admitted he had never met the defendant, was not present when the STEP notice was given or during any of the police contacts, and his knowledge of these matters was derived from police reports and an FI card. (Id. at p. 673.)
The court held these case-specific out-of-court statements in the police reports, STEP notice, and FI card were hearsay because they were "considered by the expert, and offered to the jury, as true." (Sanchez, supra, 63 Cal.4th at p. 684.) The court continued: "Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under Crawford [v. Washington (2004) 541 U.S. 36 ], however, if that hearsay was testimonial and Crawford's exceptions did not apply, [the] defendant should have been given the opportunity to cross-examine the declarant or the evidence should have been excluded." (Id. at p. 685.) Turning to the testimonial nature of the statements, the court held the police reports were testimonial because they "relate[d] hearsay information gathered during an official investigation of a completed crime" and were not "made in the context of an ongoing emergency . . . or for some [other] primary purpose." (Id. at p. 694.) The court also held the portion of the STEP notice relied upon by the expert during his testimony was testimonial, explaining "[t]hat portion recorded [the] defendant's biographical information, whom he was with, and what statements he made," and the officer who recorded that information did so primarily "to establish facts to be later used against [the defendant] or his companions at trial." (Id. at p. 696.) Finally, the court noted the record did not reveal enough of the circumstances surrounding the preparation of the FI card to determine whether or not it was testimonial in nature, but "[i]f it was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial." (Id. at p. 697.)
Here, the Attorney General acknowledges certain portions of Detective Perez's testimony violated Sanchez, but argues the violations were harmless. We agree with this assessment. As previously set forth in some detail, the detective related case-specific hearsay regarding contact between law enforcement authorities and both Fuentes and Gonzalez. He based his conclusion that each defendant was a VBN gang member in part on these prior contacts. This was at least a violation of state law under the Evidence Code. However, as the Attorney General also points out, with the exception of one contact identified as having been documented in an FI card, the record does not reveal whether the remaining contacts were documented in police reports or FI cards or otherwise. Thus, we have no way of knowing whether the case-specific hearsay documented therein was testimonial hearsay. Had defendants "lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay." (People v. Ochoa (2017) 7 Cal.App.5th 575, 584.) But instead, Gonzalez's trial counsel lodged a "standing objection" to "any hearsay and any confrontation issues . . . in regards to any statements [the detective] would be treating as factual, and any statements that he relates them to be true from anyone he's talked to or heard." Fuentes's trial counsel joined in this broad objection. Because contemporaneous objections were not lodged with respect to specific statements, triggering the People's burden to establish the non-testimonial nature of these statements, "we cannot simply assume the [statements] were testimonial hearsay." (Id. at p. 585.)
Nevertheless, even if we were to assume the detective was testifying from police reports when he set forth all but two of Fuentes's police contacts (that were personal contacts with the detective) and all but one of Gonzalez's police contacts (that were documented in an FI card), and even if we were to further assume the FI card was produced during the course of an ongoing investigation and was therefore akin to a police report, admission of such evidence was harmless beyond a reasonable doubt. This is because ample other evidence established both Fuentes and Gonzalez were active VBN gang members. First and foremost, strong evidence established each participated in the attack on the victim that was set off by the word "Bosque" being uttered as a challenge and during which the words "Bosque" and "Norté" were yelled out as a rallying cry. Aside from this evidence of defendants' participation in the VBN gang, as mentioned, the detective testified to two personal contacts he had with Fuentes: (1) he participated in an investigation involving an incident in which Fuentes was attacked by five Sureño gang members; and (2) while doing proactive enforcement, he found Fuentes in the company of five other Norteño gang members, including codefendants Ozuna and Jimenez, during which Fuentes was wearing a black and red hooded jacket and red rosary necklace. Additionally, based on photographs that were admitted into evidence, the detective identified various Norteño-related tattoos on Fuentes's body, such as a single dot on one wrist and four dots on the other wrist (indicating the number 14), and the outline of Yolo County with the letters "VBN" written inside. The Sanchez court expressly sanctioned the admission of an expert's opinion as to gang membership based on tattoos. (Sanchez, supra, 63 Cal.4th at p. 677.) The detective also testified the "Mongolian-style haircut" Fuentes had at the time of the crimes committed in this case was commonly worn by Norteño gang members in Woodland. Finally, the detective testified Gonzalez's cell phone contained several pictures relevant to his gang membership. In one, Gonzalez was making a Norteño gang sign, representing the number 14. In another, Gonzalez was wearing a red checkered shirt and making a different Norteño gang sign, representing the letter "B" for "Bosque." In three other photographs, Gonzalez was in the company of Fuentes and codefendants Jiminez and Ozuna; in a fourth, Gonzalez was in the company of Fuentes and Jimenez. In each, one or more of them are making Norteño gang signs. Each was time stamped as having been taken the night of the crimes committed in this case.
Based on the strength of the foregoing evidence, we conclude any violations of the confrontation clause in the detective's testimony were harmless beyond a reasonable doubt.
We also reject two related arguments made by Fuentes in his opening brief, (1) admission of the foregoing basis testimony also violated his due process rights, and (2) the trial court abused its discretion under Evidence Code section 352 in admitting other non-testimonial basis testimony, i.e., gang-related rap lyrics found on codefendant Ozuna's Facebook page. Even if we were to agree with each of these additional arguments, the admission of the evidence would still be harmless beyond a reasonable doubt for the reasons already expressed. Additionally, Fuentes did not object to admission of the rap lyrics on Evidence Code section 352 grounds and has therefore forfeited his challenge to this evidence on that basis. (People v. Ervine (2009) 47 Cal.4th 745, 777.)
GONZALEZ'S REMAINING CONTENTIONS
III
Denial of Gonzalez's Motion for Mistrial
Gonzalez contends the trial court should have granted his motion for mistrial because it admitted evidence obtained in violation of his Fourth Amendment rights, i.e., the contents of his cell phone. Not so.
As mentioned, Detective Perez testified to the presence of certain gang-related photographs found on Gonzalez's cell phone. There is no dispute the phone was searched incident to his arrest without a warrant or consent to do so. After this evidence was admitted, but before the jury began deliberations, the United States Supreme Court decided Riley, supra, ___ U.S. ___[134 S.Ct. 2473; 189 L.Ed.2d 430], holding the exception to the warrant requirement for searches incident to arrest did not apply to the search of a cell phone taken from an arrestee's possession and held in the exclusive control of law enforcement. (Id. at p. 2493.) Based on Riley, Gonzalez moved for a mistrial, which was denied.
"A motion for mistrial should be granted ' "only when a party's chances of receiving a fair trial have been irreparably damaged." ' [Citation.] Whether a particular incident is so prejudicial that it warrants a mistrial 'requires a nuanced, fact-based analysis,' which is best performed by the trial court. [Citation.] We review a trial court's order denying a motion for mistrial under the deferential abuse of discretion standard. [Citation.] 'Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
"There is no doubt that, if an error occurs in erroneously admitting evidence, and it is an error that may be cured by striking the evidence and instructing the jury to disregard it, a motion for a mistrial that is made instead of a motion to strike and a request for an appropriate jury instruction, should be denied." (People v. Morgan (1978) 87 Cal.App.3d 59, 67, disapproved on another point in People v. Kimble (1988) 44 Cal.3d 480, 497-498.) Here, because any error in admitting the cell phone evidence could have been cured by striking the evidence and instructing the jury to disregard it, the appropriate motion for Gonzalez to have brought following the Supreme Court's decision in Riley, supra, ___ U.S. ___[134 S.Ct. 2473; 189 L.Ed.2d 430] was a motion to strike and so instruct the jury. For this reason alone, the trial court properly denied the motion for mistrial.
However, we also conclude there was no error in admitting the cell phone evidence, and therefore, no need to strike the evidence or instruct the jury to disregard it, and for the same reason, no miscarriage of justice to be remedied by a declaration of mistrial. This is because the evidence was obtained in reasonable reliance on a decision of our Supreme Court, People v. Diaz (2011) 51 Cal.4th 84 (Diaz), holding the exception to the warrant requirement for searches incident to arrest applied to a search of an arrestee's cell phone. Thus, while Riley, supra, ___ U.S. ___[134 S.Ct. 2473; 189 L.Ed.2d 430] concluded differently, we hold the purposes of the exclusionary rule would not have been advanced by excluding the cell phone evidence in this case. Accordingly, even had the proper motion been made, it would have been appropriately denied.
"The Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' but 'contains no provision expressly precluding the use of evidence obtained in violation of its commands.' " (Herring v. United States (2009) 555 U.S. 135, 139 , quoting Arizona v. Evans (1995) 514 U.S. 1, 10 .) Nevertheless, "[w]hen evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. [Citations.]" (Illinois v. Krull (1987) 480 U.S. 340, 347 [94 L.Ed.2d 364, 373].) As the United States Supreme Court has repeatedly stressed: "[T]he 'prime purpose' of the exclusionary rule 'is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.' [Citation.] Application of the exclusionary rule 'is neither intended nor able to "cure the invasion of the defendant's rights which he [or she] has already suffered." ' [Citations.] Rather, the rule 'operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." ' [Citation.]" (Ibid.)
" 'The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.' " (Arizona v. Evans, supra, 514 U.S. at p. 10, quoting Illinois v. Gates (1983) 462 U.S. 213, 223 [76 L.Ed.2d 527, 538-539].) "As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process. [Citations.]" (Illinois v. Krull, supra, 480 U.S. at p. 347.) And "[t]he principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free--something that 'offends basic concepts of the criminal justice system.' [Citation.] '[T]he rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.' [Citations.]" (Herring v. United States, supra, 555 U.S. at p. 141.)
In Davis v. United States (2011) 564 U.S. 229 (Davis), the Supreme Court held "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule" because suppression of evidence obtained during such a search "would do nothing to deter police misconduct" and "would come at a high cost to both the truth and public safety." (Id. at p. 232.) There, a search of a vehicle incident to the arrest of its occupants was conducted in reasonable reliance on New York v. Belton (1981) 453 U.S. 454 (Belton), which "was widely understood to have set down a simple, bright-line rule . . . authoriz[ing] automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching distance of the vehicle at the time of the search." (Davis, supra, at p. 233.) Two years after the search, in Arizona v. Gant (2009) 556 U.S. 332 (Gant), the court held the Belton holding "applies only where 'the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.' [Citation.]" (Id. at p. 234.) While the search at issue in Davis complied with binding appellate precedent interpreting Belton, it did not comply with Gant.
However, applying United States v. Leon (1984) 468 U.S. 897, 906 [82 L.Ed.2d 677, 687], holding the exclusionary rule does not apply when police act in reasonable reliance on a warrant that is invalid for lack of probable cause (id. at p. 922), and subsequent decisions interpreting the exclusionary rule (see, e.g., Illinois v. Krull, supra, 480 U.S. 340 [holding the exclusionary rule does not apply when police perform a warrantless administrative search in reasonable reliance on a statute that is later declared unconstitutional]; Arizona v. Evans, supra, 514 U.S. 1 [holding the exclusionary rule does not apply when police act in reasonable reliance on mistaken information in a court's database that an arrest warrant is outstanding]), the Davis court concluded exclusion of the evidence obtained in violation of Gant was not warranted. The court explained: "Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningfu[l]' deterrence, and culpable enough to be 'worth the price paid by the justice system.' [Citation.] The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis's Fourth Amendment rights deliberately, recklessly, or with gross negligence. [Citation.] Nor does this case involve any 'recurring or systemic negligence' on the part of law enforcement. [Citation.] The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case." (Davis, supra, 564 U.S. at p. 240.)
Here, as already indicated, the officers who searched Gonzalez's cell phone also acted in reasonable reliance on binding appellate precedent, i.e., our Supreme Court's decision in Diaz, supra, 51 Cal.4th 84. Accordingly, as in Davis, the exclusionary rule does not apply. "An officer who conducts a search in reliance on binding appellate precedent does no more than ' "ac[t] as a reasonable officer would and should act" ' under the circumstances. [Citation.] The deterrent effect of exclusion in such a case can only be to discourage the officer from ' "do[ing] his [or her] duty." ' [Citation.]" (Davis, supra, 564 U.S. at p. 241.)
In sum, while we conclude Gonzalez's Fourth Amendment rights were violated by admission of the cell phone evidence, the appropriate remedy for this particular violation was not exclusion of the evidence. Thus, the trial court did not err in denying his motion for mistrial on that basis.
IV
Denial of Gonzalez's Bifurcation/Severance Motion
Gonzalez further asserts the trial court prejudicially abused its discretion and violated his federal constitutional rights by denying his motion to bifurcate trial of the gang enhancement allegations and sever the gang participation count. We need not set forth our reasoning on the subject because, even if there was both an abuse of discretion and a constitutional violation, any assumed error was harmless beyond a reasonable doubt. This is because the jury was deadlocked on the robbery and assault counts as to Gonzalez. Thus, contrary to Gonzalez's argument on appeal, there is no possibility unduly prejudicial gang evidence induced the jury to convict him of these crimes. Simply put, as the Attorney General argued in the respondent's brief, there is no conceivable prejudice. Nor did Gonzalez attempt to contradict this lack of prejudice in his reply brief.
FUENTES'S REMAINING CONTENTIONS
V
Vindictive Prosecution
Fuentes claims the strike finding must be reversed because the prosecution's amendment of the information to add this allegation after the first trial ended in a mistrial due to a deadlocked jury constituted vindictive prosecution. He is mistaken.
A.
Additional Background
In August 2011, the People filed a petition against Fuentes in the juvenile court alleging two felonies, i.e., residential burglary and assault with a deadly weapon. Fuentes, who was 17 years old at the time, entered a plea of no contest to both crimes the following month. The juvenile court sustained the petition with respect to the burglary count, declared Fuentes to be a ward of the court under Welfare and Institutions Code section 602, and DEJ with respect to the assault with a deadly weapon count that was pleaded as a strike offense.
In November 2011, the People moved the juvenile court to lift the DEJ, alleging Fuentes was terminated from his placement program. The court extended the DEJ with a "last chance" warning. In September 2012, the People filed two amended motions to lift the DEJ (First and Second Amended Motions to Lift DEJ), adding allegations Fuentes was arrested for driving under the influence of alcohol, among other Vehicle Code violations, and he was found in possession of marijuana on another occasion, lied about his probation status, and was wearing gang clothing. The juvenile court again extended the DEJ. In May 2013, the People again filed an amended motion to lift the DEJ (Third Amended Motion to Lift DEJ), adding to the foregoing allegations that Fuentes was observed on two occasions wearing gang clothing, violated the Vehicle Code on one of these occasions, and again lied about his probation status.
In June 2013, Fuentes committed the crimes involved in this case, prompting the People to file another amended motion to lift the DEJ (Fourth Amended Motion to Lift DEJ), adding his arrest on these charges to the allegations. The DEJ remained in place during the first trial. As mentioned, this trial resulted in Fuentes being convicted of resisting a peace officer, but the jury could not reach a unanimous verdict regarding the remaining counts and the trial court declared a mistrial as to them.
In December 2013, following the first trial, the People filed yet another amended motion to lift the DEJ (Fifth Amended Motion to Lift DEJ), adding Fuentes's conviction for resisting a peace officer. The People also filed a notice of intent to amend the information to allege the juvenile assault with a deadly weapon adjudication as a prior strike should the juvenile court grant the motion to lift the DEJ. The juvenile court did so the following month.
However, for reasons not made clear by the record, the trial court did not grant the motion to amend the information until after the jury returned its verdict in the third trial. Fuentes opposed the motion, arguing: "It was only after the prosecution was unable to secure a conviction [in the first trial] that they elected to seek entry of judgment of the juvenile adjudication for the violation of . . . section 245(a)(1). This raises the presumption of prosecutorial vindictiveness." The People responded by setting forth the chronology outlined above and arguing, "when the timing is reviewed there is not even an appearance of vindictiveness as argued by the defense." The trial court agreed with the People and allowed the amendment. Thereafter, the trial court found the prior strike allegation to be true.
As mentioned, there was a second trial that resulted in a mistrial after the trial court discovered two jurors knew members of the defendants' families.
B.
Analysis
The due process clauses of the United States and California Constitutions protect a criminal defendant against vindictive prosecution. (Blackledge v. Perry (1974) 417 U.S. 21, 28 ; In re Bower (1985) 38 Cal.3d 865, 876.) This protection prevents the prosecution from amending an information to add a sentence enhancement after the defendant's first trial resulted in a mistrial, "circumstances that plainly give rise to a presumption of vindictiveness" (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 372), unless the prosecutor can carry the "heavy burden of rebutting [that presumption] with an explanation that adequately dispel[s] the apprehension of vindictiveness." (In re Bower, supra, 38 Cal.3d at p. 877.) "[T]his legal presumption cannot be rebutted by the prosecutor's declaration that he or she was motivated by a reassessment of the evidence against the defendant rather than by any desire to punish the exercise of a protected right. In order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge." (Id. at p. 879.)
Here, amending the information to allege a prior strike after the first trial resulted in a mistrial gives rise to a presumption of vindictiveness. However, such an allegation would have been baseless unless and until judgment was entered as to that prior strike adjudication. The People attempted to lift the DEJ with respect to that adjudication five times prior to the first trial. They were unsuccessful. It was only after the mistrial that judgment was entered as to the prior strike adjudication, and only then was there a basis to allege that adjudication as a strike. Because "it was impossible to proceed [on the enhancement] at the outset" (Blackledge v. Perry, supra, 417 U.S. at p. 29, fn. 7), we conclude the presumption the strike allegation was added for a vindictive purpose has been rebutted.
VI
Use of a Juvenile Adjudication as a Strike
Finally, we also reject Fuentes's assertion the use of his juvenile adjudication as a strike violated his right to jury trial. Indeed, this claim has been rejected by our Supreme Court (see People v. Nguyen (2009) 46 Cal.4th 1007, 1028; People v. Chism (2014) 58 Cal.4th 1266, 1334), and we are bound to do the same (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), as Fuentes admits in his briefing.
DISPOSITION
The judgments are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
RENNER, J.