Opinion
A146857
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY GRIFFIN AND BOISE DUGGAN, Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51308493)
Appellants Jeremy Griffin and Boise Duggan (appellants) were convicted of the second degree murder of Juan Hernandez, among other offenses. We conclude the trial court erred in admitting evidence that the car Duggan was driving when he was arrested had recently been carjacked, and in excluding evidence of Hernandez's violent character. The errors were prejudicial as to Duggan's murder conviction, but harmless as to Griffin's murder conviction. Otherwise, we reject appellants' claims.
PROCEDURAL BACKGROUND
In February 2015, at the start of trial, the District Attorney of Contra Costa County filed a second amended information charging appellants with murder (Pen. Code, § 187, subd. (a); count one), assault with a firearm (§ 245, subd. (a)(2); count two), being a felon in possession of a firearm (§ 29800, subd. (a)(1); counts three (Griffin) and four (Duggan)), and participation in a criminal street gang (§ 186.22, subd. (a); count six). Appellant Duggan was also charged with reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a); count seven).
All undesignated statutory references are to the Penal Code.
The superior court was unable to find a document entitled "second amended information" on the docket below, but the parties agree the information was amended as described herein before trial.
The information further alleged firearm enhancements (§ 12022.53) as to count one, personal infliction of great bodily injury (§ 12022.7, subd. (a)) as to count two, and commission of all offenses except counts six and seven for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The information alleged appellants had served prior prison terms (§ 667.5, subd. (b)) and Duggan had two prior serious felony convictions (§ 667).
A jury found appellant Griffin guilty of the lesser included offense of second degree murder on count one, and guilty on counts two, three, and six. It found true the firearm enhancement allegations associated with count one, the great bodily injury allegation associated with count two, and the gang allegation as to count three. It was unable to reach a verdict on the gang allegations in counts one and two. The jury found appellant Duggan guilty of second degree murder on count one, and guilty on counts four, six, and seven. It found true the gang allegation as to count four, but was unable to reach a verdict on count two or on the count one firearm allegations.
In October 2015, the trial court found true two prior prison term allegations as to appellant Griffin, and sentenced him to 48 years to life in prison. As to appellant Duggan, the court found true two prior prison term allegations and one alleged prior serious felony, and sentenced him to 43 years and 4 months to life in prison. Both Griffin and Duggan appealed.
FACTUAL BACKGROUND
On November 14, 2012, appellants went to the apartment of Rodney M. in an Antioch apartment building, looking for clothes that had gone missing from the laundry room. They had a dispute with the victim, Juan (known as Johnny) Hernandez, and Griffin shot and killed Hernandez.
To protect the privacy of the witnesses, most of whom admitted using methamphetamine, we initially refer to them by their first name and the first initial of their last name. (Cal. Rules of Court, Rule 8.90.) In subsequent references, we use their first name only.
The Prosecutor's Evidence Regarding the Shooting
In November 2012, Marissa V. lived in an Antioch apartment complex. Appellant Griffin occupied the second bedroom in her unit; he did not pay rent, but he gave her methamphetamine. On November 14, Marissa went to the laundry room to wash clothes belonging to Griffin and Johntue Hinds. Marissa mixed the clothes in a dryer with the clothes of Joshua L., who lived in Rodney M.'s apartment. Marissa left for two or three hours; when she returned, the clothes were missing from the laundry room.
Marissa and Hinds made an unsuccessful effort to find the laundry, and then called Griffin. Eventually appellants came to Rodney's apartment, looking for the missing laundry. Griffin found the clothes and gave them to Marissa. Subsequently, Marissa heard a scuffle and "thud[s]" from Rodney's bedroom. She went to the bedroom and saw Griffin, Duggan, and Hinds standing around a hunched-over figure, presumably Hernandez. Griffin had a gun and he used it to hit Hernandez on the head. She returned to the living room and about a minute later heard a gunshot. Griffin fled the apartment, followed by Duggan and Hinds. Duggan was also holding a gun at that point.
There was also testimony about $20 missing from the purse of Griffin's girlfriend, Christina O. We need not summarize that testimony.
Hinds testified he told Marissa not to call Griffin because he was concerned there would be violence. Nevertheless, Marissa eventually called Griffin. Hinds arrived at Rodney's apartment after appellants, who were in a bedroom when he arrived. He heard the sound of a scuffle, walked towards Rodney's bedroom, and saw Rodney and Gerardo B. leave the room. From the doorway, Hinds saw Griffin shoot Hernandez, who was coming up from a kneeling position. Hinds saw Duggan was in the room as well, but he did not notice if Duggan had a gun. Afterwards, Griffin told Hinds he shot Hernandez in the face, but he did not claim the shooting was an accident or self-defense. Hinds had been tried for Hernandez's murder, but the jury was unable to reach a verdict on the charge. Hinds testified he had been made no promises about what would happen with his case, although he was hoping for some benefit due to his cooperation.
Rodney testified he heard Hernandez confronting appellants about what they were doing in Rodney's apartment. Rodney told Hernandez to calm down, and Hernandez squatted down and said he was going to calm down and let appellants look for their clothes. Duggan approached and kneed Hernandez; Hernandez jumped up and "retaliated." Rodney left the room. Griffin was in the room by that point, and someone had a gun. Rodney admitted he told the police that appellants both had guns and that they pistol-whipped Hernandez. At trial, he only remembered seeing one gun. He was under the influence of methamphetamine at the time of the shooting and when he was interviewed by the police. After he left the bedroom, Rodney heard one or two gunshots and saw appellants leave.
Gerardo testified he was in Rodney's room when Griffin and two others (likely Duggan and Hinds) arrived. Hernandez told them, "Just leave those guys alone. They are not bad people." Duggan said, "If I wanted to, I could take whatever I want though." Gerardo told Hernandez to just let them look for their clothes. Hernandez crouched down into a submissive position next to the closet. Gerardo left the room because he got a phone call; Duggan was in the room by that point. Gerardo looked back and saw Griffin lift his hand into the air and run into the bedroom, but Gerardo did not know if Griffin had anything in his hand. Gerardo went to the living room to talk on the phone and he heard banging noises and then a gunshot.
Another witness, Michael H., testified appellants were both Norteños. On the day of the shooting, he saw appellants and Hinds follow Hernandez into Rodney's room. Michael heard a struggle, saw Duggan throw the first punch at Hernandez, and saw Hernandez fight back. It looked like Hernandez was "overruling" Duggan and the others. After about 30 to 45 seconds he heard gunshots. Michael testified he was "on drugs" when it happened and his mind was "very, very clouded."
Another witness testified two men, apparently appellants, came to her apartment looking for missing laundry, apparently before they went to Rodney's apartment. They were angry, aggressive, and intimidating. Yet another witness, who had been awake for a couple of days using drugs at the time of the shooting, heard one of the appellants load a round into the chamber of a gun before going to Rodney's apartment. Previously, the witness had testified that both appellants had guns.
The police found Hernandez dead, face down on the bedroom floor. There was a loaded magazine for a semiautomatic pistol on the floor and an unspent bullet next to the magazine. Many items were strewn around the room, including beer bottles, broken methamphetamine pipes, and wrenches.
Griffin was arrested on November 20, 2012. Duggan was arrested on November 26. He was spotted driving a vehicle that had been stolen in a carjacking. A passenger, later identified as Morgan Scales, was also in the car. Duggan fled from the police and eventually crashed into another car. Duggan and Scales fled on foot and were arrested. A black semiautomatic handgun was found on the route of flight. The bullets in the gun bore the same headstamp as those found at the scene of the shooting.
The jury also heard testimony from the victim of the carjacking. We summarize that testimony in Part I, post.
A "headstamp" is the "numbers or letters stamped into the base of a cartridge case by the manufacturer in order to identify the cartridge and its original loading." (Webster's Third New Internat. Unabridged Dict. (2002) p. 1043.)
The prosecution's firearms expert testified the bullet recovered from Hernandez's body was not fired from the gun recovered at the time of Duggan's arrest. The expert also testified that if the button to release the magazine on a semiautomatic handgun is pressed while the gun is being used to "pistol-whip" someone, the magazine would fall out.
The doctor who performed an autopsy of Hernandez's body testified there was a single bullet that entered on the lower right shoulder. The trajectory of the bullet was not consistent with the victim being shot during a pistol-whip to the head. Abrasions on various parts of the body were consistent with Hernandez being punched, kicked, or slammed into furniture. There were also head injuries consistent with pistol-whipping. The Prosecutor's Gang Testimony
The testimony is only briefly summarized herein. Some additional details about the gang expert testimony are presented in Parts IV and V, post.
Detective James Stenger of the Antioch Police Department testified as a gang expert for the prosecution. He was also a primary investigator in the present case. He testified about the Norteño gang, including its symbols and primary activities. He testified about predicate acts committed by gang members. He opined that appellants were both members of the Norteños at the time of the shooting. He opined that a hypothetical shooting like that in the present case would benefit the gang by instilling fear of the gang in the community and among enemies.
Detective Brad Giacobazzi of the Concord Police Department also testified as a gang expert for the prosecution. He discussed photos of Duggan, prior offenses committed by Duggan, and predicate acts committed by Norteños. He opined Duggan was a Norteño.
The Defense Case
Griffin testified he is not a Norteño, and neither is Duggan. He admitted he always carried a handgun at the time of the shooting. Duggan happened to come by to visit when Griffin was about to look for the lost laundry, and Michael took them both to Rodney's apartment. Griffin retrieved the clothes from a bedroom and gave them to Marissa. He then noticed Duggan standing in the doorway of the master bedroom; Hernandez was speaking to him in an upset manner. Hernandez's friends were telling him to calm down. Hernandez squatted down near the closet, but then he sprang up, tackled Duggan against the wall, and began hitting him with a metal object, possibly a wrench.
Griffin pulled Hernandez off Duggan, and Hernandez attacked Griffin with the wrench. Griffin pulled his gun out, hoping to get Hernandez to back off. But Hernandez attacked again, and Griffin responded by hitting him on the back of the head with the gun. They continued to struggle and Hernandez tried to get the gun away from Griffin. Hernandez attacked again, and Griffin hit him in the face with the gun. Hernandez again tried to grab the gun, Griffin hit him again, and the gun went off by accident. Duggan did not have a firearm at the time of the shooting. Griffin fled and hid in a motel because he was a convicted felon and did not think the police would give him "a fair shot." He noticed the magazine for his gun was missing.
On redirect, Griffin testified that at one point during the scuffle, Hernandez made a gesture toward his belt. Griffin saw some items attached to the belt; he did not know what they were, but one looked like a knife and he was scared. The parties stipulated that a multi-tool, a case containing a cell phone, and another case were affixed to the belt.
Evidence the second case contained a taser was excluded at trial. (See Part III, post.)
The defense also put on evidence that Hernandez's blood tested positive for a high level of methamphetamine, although the actual level could have been somewhat lower because the testing was of a heart blood sample. A psychiatrist testified the drug has long-lasting effects (up to 24 hours), which include euphoria, rapid speech, and increased activity. High doses may result in hallucinations, paranoia, delusions, agitation, and aggression. It can cause a person to have a "fight or flight reaction." About 50 percent of high dose users experience "psychotic symptoms." The psychosis typically associated with methamphetamine use is "persecutory delusions, where an individual is out of touch with reality, [feels] that others are trying to do them harm . . . ." Persons suffering from delusions and hallucinations are at "high risk of aggression or violent behavior." The psychiatrist was not asked to opine on anyone's specific behavior, and he had no opinion on whether Hernandez was psychotic at the time of the shooting.
DISCUSSION
I. The Trial Court Erred in Admitting Evidence of an Uncharged Carjacking
Appellant Duggan contends the trial court erred in admitting against him evidence that connected him to an uncharged carjacking. We agree.
Appellant Griffin does not join this argument or argue the evidence Duggan was connected to a carjacking was prejudicial to him.
A. Background
Before trial, Duggan moved to exclude evidence the vehicle he was driving on the day he was arrested had been carjacked. At a hearing on the motion, the prosecutor explained Rhonda M. had been carjacked by someone she knew named Adam and a "tall, mixed-race, light-skinned male who had a black semiautomatic handgun." Rhonda was unable to identify Duggan from a photo lineup as the assailant with the gun. As summarized previously, Duggan was driving Rhonda's car the day after the carjacking, he and a passenger abandoned the car and fled, and a black semiautomatic gun was found along their flight path. The prosecutor argued the circumstances of the carjacking helped prove that the gun discarded during the police chase belonged to Duggan. Duggan's counsel argued the carjacking evidence should be excluded because it was inherently prejudicial, while the evidence of Duggan's participation in the carjacking was "tenuous." The trial court ruled the prosecution could present testimony about the circumstances of the carjacking to support an inference Duggan had a firearm at the time of the Hernandez shooting.
At trial, police officers testified about the chase and recovery of the gun, and Rhonda testified about the carjacking. She testified that on November 25, 2012, she was driving with Adam, whom she knew, in the front seat. The back seat passenger was a 6-foot tall, slender bi-racial man, who was clean-shaven and had long braids. She drove them to various locations and then Adam tried to seize the car keys. When she resisted, the backseat passenger put a black semiautomatic gun to her head and told her to get out of the car. They drove off. She testified the second carjacker was not in the courtroom.
The trial court instructed the jury regarding the carjacking as follows: "[T]he People presented evidence that defendant Boise Duggan committed another offense that was not charged in this case. For purposes of your consideration of this evidence, I will call the other offense 'armed carjacking.' [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. In deciding whether the People have met this burden, you may consider evidence that when he was arrested the defendant was in possession of property, that is, the automobile, that had recently been taken in the armed carjacking. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not defendant Duggan possessed a firearm at the time that Juan Hernandez was killed, and if he did, whether: [¶] Defendant Duggan acted with the intent to kill and/or to assault Juan Hernandez with a firearm as charged in this case; or [¶] Defendant Duggan knew his conduct posed a risk of great bodily injury or death to Juan Hernandez when he allegedly acted in this case; or [¶] The defendant was acting in self-defense at the time of the offenses charged in Counts One and Two; or [¶] The defendant had a motive to commit the offense of Evading the Police as charged in Count Seven. . . ." Duggan's counsel had objected to the instruction, pointing out that the trial court had indicated the carjacking would only be admitted as circumstantial evidence Duggan had a gun at the time of the Hernandez shooting, but the instruction was far broader.
B. Admission of the Carjacking Evidence Was Prejudicial Error
We conclude the trial court erred under Evidence Code section 352 in admitting the evidence of the carjacking against Duggan. The section provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) The section " 'permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption,' but 'requires that the danger of these evils substantially outweigh the probative value of the evidence.' [Citations.] Rulings under this provision 'come within the trial court's discretion and will not be overturned absent an abuse of that discretion.' " (People v. Cornejo (2016) 3 Cal.App.5th 36, 57.)
Appellant Duggan's opening brief framed the issue as a series of instructional issues, as follows: (1) that the trial court erred in instructing the jury they could consider the carjacking because there was insufficient evidence of Duggan's participation in the offense, (2) that the court erred in failing to instruct the jury on the elements of carjacking, (3) that the court erred in failing to instruct that possession of recently stolen property is insufficient proof of guilt of theft without corroboration, and (4) that the instruction on the carjacking evidence failed to properly limit the scope of the issues on which the evidence could be considered. However, Duggan's trial counsel argued below the evidence should be excluded because it lacked probative value and was prejudicial, Duggan's opening brief discusses both the probative value of the evidence and the risk of prejudice, and respondent construed Duggan's claim as error under Evidence Code sections 352 and 1101, subdivision (b). Accordingly, the Evidence Code section 352 issue has been adequately briefed by the parties.
The carjacking evidence lacked probative value. It was unnecessary to present evidence Duggan was driving a carjacked vehicle in order to inform the jury that Duggan had been apprehended following a car chase, and a handgun had been recovered along the path of flight. An officer could simply have testified to the flight, arrest, and discovery of the gun without explaining the cause of the initial pursuit. More significantly, the carjacking evidence itself had little, if any, probative value in showing the recovered gun belonged to Duggan. Respondent argues the carjacking evidence was relevant because "Duggan met the general description of the carjacker and the gun found abandoned along the flight path met the general description of the gun used in the carjacking." However, as was pointed out to the trial court at the time of the motion in limine, the description of the armed carjacker was consistent with both Duggan and Scales, and the victim had failed to pick out Duggan from a photo lineup. Accordingly, the proffered evidence of the carjacking had no tendency to prove the gun belonged to Duggan instead of Scales.
Indeed, after the conclusion of the victim's trial testimony, the evidence was that Duggan was not the gunman in the carjacking: she did not identify him in a photo line-up or at trial; and she described the gunman as being clean-shaven and having long braided hair, while photos of Duggan when he was arrested the next day show him with short hair and a beard.
Notably, the firearm evidence itself was not highly probative. Although the bullets in the firearm recovered at the time of Duggan's arrest had the same headstamp as the bullets recovered at the scene of the Hernandez shooting, the prosecution's firearm expert did not testify regarding whether that particular headstamp was common.
Further, the evidence of the carjacking was extremely prejudicial. Although there was little basis to conclude Duggan was the gunman after the testimony of the carjacking victim, the fact that he was driving the car the next day implicated him in the carjacking after the fact. His association with the carjacking, committed less than two weeks after the Hernandez shooting, tended to suggest Duggan was engaged in repeated, violent criminal activity, especially given the description of Duggan's prior offenses included in the gang experts' testimony (see Parts IV & V, post). Given the absence of probative value and the clear risk of undue prejudice, the trial court abused its discretion in admitting the carjacking evidence.
Turning to the question of whether there is a reasonable probability the outcome of trial would have been more favorable if the carjacking evidence had been excluded (People v. Watson (1956) 46 Cal.2d 818, 836), we note that the trial court's instructions compounded the prejudice from admission of the evidence. The court instructed the jury it could consider the fact that Duggan was in possession of the victim's car in deciding whether the People had met their burden of showing Duggan committed the carjacking. The jurors reasonably could have understood that to mean that Duggan could be held responsible for the carjacking even if he were not the gunman. Also, the court instructed the jury that it could consider the carjacking evidence (not simply the evidence of Duggan's possession of a firearm) in deciding, among other things, whether Duggan acted with the intent to kill or assault Hernandez and whether he acted in self-defense.
Respondent points out that the trial court's instructions only permitted the jurors to consider the carjacking evidence with respect to Duggan's intent in the Hernandez shooting if the jury found Duggan had a gun at the time of the shooting. Respondent contends the jury must have concluded Duggan did not have a gun because they failed to return a verdict on the charge of assault with a firearm. However, the jury could have believed Duggan had a gun at the time of the shooting even if at least one juror doubted he used it during the incident.
In sum, the jury improperly heard evidence that connected Duggan to a carjacking committed a short time after the Hernandez shooting, and the jury was told it could consider the carjacking evidence in resolving the critical issues of Duggan's state of mind at the time of the shooting. In assessing the likelihood of prejudice we also consider that, as appellant Duggan points out, there was "conflicting" evidence "as to who started the fight, and whether Duggan assaulted Hernandez." In particular, Griffin testified Hernandez started the fight by tackling Duggan; Hinds testified Griffin shot Hernandez but did not witness any other part of the fight; Gerardo did not see the fight or shooting; Marissa testified she saw Griffin pistol-whip Hernandez, but she did not see the start of the fight; Rodney testified Duggan kneed Hernandez and then Hernandez attacked Duggan; Rodney admitted at trial he told the police he saw both appellants pistol-whip Hernandez, although he did not so testify at trial; and Michael testified Duggan punched Hernandez first, but Hernandez was then "overruling" appellants. Notably, none of the eyewitnesses described the entire incident, and it is unclear which precise portions of the incident the different eyewitnesses observed. Moreover, most of the eyewitnesses admitted they were high on methamphetamine at the time of the shooting.
It appears the trial court intended to instruct the jury it could consider Duggan's possession of a firearm as relevant to the listed issues, but the instruction as given told the jury that if it found Duggan possessed a firearm it could consider the carjacking evidence itself in deciding Duggan's role in the shooting.
Further, the failure to render a verdict as to Duggan on the charge of assault with a firearm shows at least one juror was unconvinced Duggan struck or otherwise assaulted Hernandez with a gun. The evidence of Hernandez's methamphetamine use suggested he may have been paranoid and may have acted on a "flight or fight" instinct when cornered. Even if jurors believed Duggan started the fight by kneeing Hernandez, they could have believed Duggan was overwhelmed by Hernandez's physical response and did not aid and abet Griffin in the murder. In particular, if Duggan was engaged in a vigorous struggle with Hernandez, he may have been unaware Griffin pulled his gun, may have lacked intent to aid in the shooting, and/or may not have actually aided and abetted the shooting. (Cf., People v. Chavez (2018) 22 Cal.App.5th 663, 685-686 [describing substantial evidence supporting finding that defendant aided and abetted assault with a firearm, including awareness of gun and joint action at moment of assault]; People v. Pettie (2017) 16 Cal.App.5th 23, 53 [substantial evidence of aiding and abetting where clear evidence of coordinated assault to discourage victim from cooperating with law enforcement].)
Given that the eyewitness testimony was conflicting and inherently unreliable, and given that Duggan's liability for Hernandez's murder as an aider and abettor turned on what Duggan knew and intended as the chaotic scene unfolded, we conclude it is reasonably probable the outcome on the murder charge would have been more favorable to Duggan had the carjacking evidence been excluded.
As explained below (Part II, post), Duggan was also prejudiced by exclusion of evidence regarding Hernandez's violent character, although we need not and do not decide whether that error alone would require reversal of Duggan's murder conviction. In light of the other evidence, the trial court's errors did not result in prejudice to Duggan as to his convictions on counts four, six, and seven.
II. The Trial Court Erred in Excluding Evidence of Hernandez's Violent Character
Appellants sought the admission of various items of evidence showing the victim Hernandez's violent character, but the trial court excluded all of it. We hold the court abused its discretion. The error resulted in further prejudice to appellant Duggan with respect to his murder conviction, but the error was harmless with respect to appellant Griffin's murder conviction.
A. Legal Background
Evidence of a person's character is generally inadmissible to prove that person acted in conformity with his character on a given occasion. (Evid. Code, § 1101, subd. (a).) An exception to this general rule arises in criminal cases when "evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted" is being "[o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a)(1).)
In particular, " 'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.] Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence. . . . The admission of such character evidence, however, is not without bounds, but is subject to the dictates of Evidence Code section 352. . . . [¶] Section 352 directs 'the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Wright (1985) 39 Cal.3d 576, 587-588.)
In People v. Fuiava (2012) 53 Cal.4th 622, the California Supreme Court explained that Evidence Code section 1103, subdivision (a) and a separate provision permitting similar character evidence regarding a defendant (Evid. Code, § 1103, subd. (b)), " 'create[ ] a level playing field between prosecutors and defense attorneys, and ensure[ ] that juries are given a complete picture of both the defendant's and victim's character.' " (Fuiava, at p. 696, quoting Assemblyman Quackenbush, sponsor, letter to Governor re Assem. Bill No. 263 (1991-1992 Reg. Sess.), Mar. 1, 1991.)
We review a trial court's evidentiary rulings regarding Evidence Code sections 352 and 1103 under the "deferential" abuse of discretion standard. (People v. Pollock (2004) 32 Cal.4th 1153, 1171; see also City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900 ["Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."].)
B. Factual Background
Appellants sought the admission of various items of evidence showing the victim Hernandez had a violent character, including a predilection for fighting. We summarize the proffered evidence, and the trial court's reasoning for its rulings.
Hernandez was convicted of misdemeanor battery (§ 242) in 2004, eight years before trial in the present case. The victim of the battery told appellant Griffin's attorney he remembered the incident "very well." According to counsel's proffer, the victim saw his neighbor dragged out of his house by several males, who held a pair of broken scissors to the neighbor's neck. The victim approached with a softball bat and said, " 'Hey, what are you doing?' " The men "immediately turned and attacked him." Griffin's counsel said the victim and the investigating police officer were on their way to the court, but the trial court excluded evidence of the 2004 incident under Evidence Code section 352 without hearing from them. The court reasoned the probative value was "pretty minor" because it was remote and because the circumstances of the present case were different.
There was no indication hearing from the witnesses who were on their way to court to testify about the incident would have caused any delay in the trial.
In 2004, Hernandez also pled guilty to misdemeanor domestic battery (§ 243, subd. (e)(1)). According to the police report, Hernandez's estranged wife or girlfriend prevented him from retrieving property, apparently from her residence, and he "strangled" her and then fled. The trial court excluded the evidence under Evidence Code section 352, reasoning it was too remote and that it lacked relevance to the self-defense claim because the incident was a "possible garden variety domestic violence" case where the parties told different stories.
The trial court excluded evidence Hernandez was arrested in Martinez in 2011 in possession of brass knuckles. The court reasoned the evidence was irrelevant because there was no allegation he used the weapon.
The trial court excluded evidence Hernandez was carrying a stun gun in a belt pouch on the day he was killed. The court reasoned there was no allegation Hernandez used the stun gun.
The trial court excluded evidence Hernandez was a Sureño. In particular, Hernandez had a tattoo of three dots on his hand; one of Hernandez's siblings said he "may have dabbled" in Sureño activities when he was in junior high school; prosecution witness Michael H. believed Hernandez was a Sureño; there was "framed Sure[ñ]o graffiti" in Hernandez's bedroom; and the police report relating to the 2004 battery said Hernandez admitted he "used to claim Sure[ñ]o." The trial court reasoned there was no evidence he was an active member and any gang affiliation was not "probative to [him] being a violent person without more."
Finally, appellants sought to elicit testimony Hernandez was a skilled and willing fighter. At an Evidence Code section 402 hearing, prosecution witness Rodney testified that, in the two months before he died, Hernandez "bragged about fighting," that he made reference to fights about "his girl" and a bike, and that "he liked to fight and everybody knew that." At the same hearing, prosecution witness Gerardo B. testified that he met Hernandez in 2012. Hernandez was very confident in his fighting abilities and he offered to teach Gerardo how to defend himself, specifically against someone armed with a gun. He offered to show Gerardo moves that had worked in past fights. Hernandez also told Gerardo about a fight he had in jail in which he kicked "straight up" to hit someone in the head. The trial court excluded the proffered testimony from Rodney and Gerardo, reasoning that, because the testimony did not show Hernandez was the "initiator" in past incidents, the testimony was "not sufficiently specific to show that Mr. Hernandez attacked [appellants] on the date and time alleged in this particular case."
Evidence Code section 402, subdivision (b) provides that a trial court "may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury."
C. Analysis
We conclude the trial court abused its discretion by excluding all of the proffered evidence of Hernandez's violent character. The balance under Evidence Code section 352 is " 'particularly delicate and critical where what is at stake is a criminal defendant's liberty,' " and the section "must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense." (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599; accord People v. Cornejo, supra, 3 Cal.App.5th at p. 58; People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) As explained below, the trial court's rulings were not consistent with these guiding principles. We examine each piece of proffered evidence individually.
The 2004 misdemeanor battery was an incident in which Hernandez, acting with others, attacked two men. The incident was probative to support appellants' self-defense claim. According to the proffer, the only reason for the attack on the victim was because he tried to stop a scissor attack on his neighbor. This suggested Hernandez had a propensity for unprovoked violence that supported appellants' claim Hernandez attacked them. Before rejecting the evidence on the basis that the facts were too dissimilar, the trial court should have heard the proffered testimony from the victim and the investigating officer. The fact that the incident occurred eight years before the charged offenses did not eliminate all probative value. It is not uncommon for courts to admit even more remote conduct, particularly where the person at issue did not refrain from criminality in the interim. (See, e.g., People v. Davis (2009) 46 Cal.4th 539, 602 [prior acts occurred 17 years earlier, although defendant incarcerated for much of that period]; People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 ["[C]onvictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior."].) Finally, without hearing the proffered testimony, there was no basis for the trial court to find testimony about the incident would have consumed an undue amount of time or caused confusion. The court abused its discretion in excluding the 2004 misdemeanor battery without hearing from the victim and investigating officer.
The trial court also abused its discretion in excluding the evidence of Hernandez's 2004 plea to misdemeanor domestic battery. As with the 2004 battery, the eight years between that conduct and the underlying 2012 incident was not so long as to eliminate all probative value. Further, it was unreasonable for the trial court to find the incident lacked probative value because Hernandez attacked his wife rather than a stranger. Evidence Code section 1103, subdivision (a)(1) does not require that conduct offered to show the victim's character for violence be similar to that alleged by the defense in the underlying case. (See People v. Blanco (1992) 10 Cal.App.4th 1167, 1175 [suggesting that evidence of domestic violence would be admissible under Evidence Code section 1103, subdivision (b) in a murder prosecution].) Lack of similarity is properly weighed in the Evidence Code section 352 analysis, but it does not render the evidence of prior conduct irrelevant. Here, the battery tended to show appellant had a propensity to turn to violence when provoked. Absent grounds to exclude the evidence under Evidence Code section 352, it was for the jury to decide what weight to put on the evidence.
The trial court abused its discretion in excluding evidence Hernandez possessed brass knuckles when arrested in Martinez in 2011. Possession of the brass knuckles was illegal, and tended to reflect a readiness to engage in physical combat. At a minimum, the evidence established that Hernandez had not lived a blameless life since his 2004 convictions for violent crimes. It was error for the trial court to conclude Hernandez's 2011 possession of the weapon was irrelevant to appellants' claim of self-defense.
On the other hand, the trial court did not err in excluding the evidence Hernandez possessed a taser at the time of the underlying 2012 shooting. There is no evidence appellant Griffin was aware he had the taser, so it was not relevant to his state of mind when he shot Hernandez. Moreover, a taser is not necessarily an offensive weapon, and it is not illegal to possess a taser. While possession of the taser was slightly probative of Hernandez's character for violence, that point would have already been shown by the other evidence of Hernandez's conduct that should have been admitted. Further, the trial court could reasonably exclude the taser under Evidence Code section 352 because it would have risked confusing the jury about whether they could consider the taser in resolving appellants' self-defense claim. And the trial court reasonably could have doubted jurors would follow an instruction to ignore the taser in assessing the claim.
Finally, the trial court erred in excluding the evidence Hernandez "bragged" about his skill as a fighter. Respondent does not dispute that the evidence was, if relevant, admissible under Evidence Code section 1103, subdivision (a)(1). Instead, respondent argues the trial court properly "excluded the testimony on the ground that it was not sufficiently specific or probative to show the victim had a character for violence and was therefore likely to be the initial aggressor in this case." Under Evidence Code section 210, " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The evidence Hernandez talked a lot about fighting, had a reputation as one who likes fighting, and claimed to be able to disarm a gunman and kick straight up tended to support appellants' self-defense claim. Assuming the evidence was not admissible for the truth of Hernandez's assertions about his fighting ability, the fact that Hernandez frequently talked about fighting and wanted to be perceived as a willing and skilled fighter tended to support appellant Griffin's claim that Hernandez attacked Duggan. Evidence of Hernandez being the aggressor in the fights described by Rodney and Gerardo would have been even more probative, but it was not a precondition to relevance. Reasonable jurors could conclude that, if Hernandez was interested in fighting and wanted to be thought of as a skilled fighter, he was more likely to initiate physical combat when threatened by appellants. Again, it was not necessary for the circumstances to mirror those in the present case for the evidence to be admissible under Evidence Code section 1103. The trial court abused its discretion.
We need not and do not decide whether the court also erred in excluding evidence Hernandez may have been a Sureño. The evidence was relatively weak, and any additional prejudice flowing from its exclusion was insignificant in light of the other character evidence that should have been admitted. Further, we do not decide the trial court lacked discretion to exclude other portions of the character evidence (the two misdemeanor convictions, the brass knuckles, and the bragging) under section 352. The court's error lay in excluding all evidence of Hernandez's violent character.
D. The Errors Were Harmless as to Griffin but Not as to Duggan
Appellants contend we must reverse their convictions unless the trial court's errors in excluding the evidence of Hernandez's character were harmless beyond a reasonable doubt. (Chapman v. California (1966) 386 U.S. 18.) They contend exclusion of the evidence violated their federal constitutional right to present a defense, citing Chambers v. Mississippi (1973) 410 U.S. 284. (See People v. Vines (2011) 51 Cal.4th 830, 864 [in Chambers, "[t]he United States Supreme Court held that due process requires state courts to admit reliable evidence that is critical to the defense in criminal cases"], overruled on another ground in People v. Hardy (May 31, 2018, S113421) ___ Cal.5th ___ .) We agree exclusion of all of the evidence regarding Hernandez's character was problematic, because the excluded evidence was the principal support for appellant Griffin's version of the events, other than his own testimony and the evidence of Hernandez's drug use. However, generally "the application of the ordinary rules of evidence under state law do not violate a criminal defendant's federal constitutional right to present a defense." (People v. Abilez (2007) 41 Cal.4th 472, 503.) In any event, we need not decide which standard of review for harmless error applies: As we explain below, the errors were harmless as to Griffin even under Chapman, and, given that we reverse Duggan's murder conviction due to admission of the carjacking evidence, we need not decide whether the errors as to the evidence of Hernandez's character would, on their own, require reversal of Duggan's murder conviction.
As explained previously (Part I.B., ante), the eyewitness testimony regarding the Hernandez shooting was confusing, conflicting, and of questionable reliability. Nonetheless, respondent argues any errors as to admission of the Hernandez character evidence were harmless because "[t]here is no reasonable probability a jury hearing some or all of [the excluded] evidence would conclude that the victim, a five foot seven inch man weighing 160 pounds, had such a violent character that he would initiate a physical attack on two, much larger men described as being angry and aggressive at the time in the confines of a small room."
We conclude the errors in excluding evidence of Hernandez's character were harmless as to Griffin's convictions for murder and assault with a deadly weapon. We agree with appellants that the excluded evidence might have led the jury to believe that Hernandez attacked first. However, it is clear beyond a reasonable doubt the jury still would have rejected Griffin's self-defense claim, which was significantly undermined by other physical and testimonial evidence. First, no one else testified seeing Hernandez with a wrench or similar metal object in his hand, and Griffin cites no evidence a wrench or similar object was found on the floor near Hernandez's body. Second, Hinds testified he saw Griffin shoot Hernandez while Hernandez was below him and not during a pistol-whipping. Third, the prosecution's firearm expert testified the trajectory of the gunshot was inconsistent with an accidental shooting during a pistol-whipping. Finally, Griffin's credibility was undermined by his delay until after cross-examination in claiming that he saw Hernandez gesture towards his belt, putting him in fear for his life. In sum, the evidence at trial contradicted Griffin's explanation of how the shooting occurred. Even if jurors believed Hernandez attacked Duggan first, it is clear beyond a reasonable doubt they still would have rejected Griffin's accidental shooting claim, and would not have concluded the shooting was committed due to reasonable or unreasonable fear of infliction of great bodily harm by Hernandez.
Although Griffin testified he killed Hernandez by accident and did not claim an intentional shooting in self-defense, Griffin claimed he was pistol-whipping Hernandez to fend off Hernandez's incessant attacks. Accordingly, Griffin's denial he shot Hernandez intentionally did not render the evidence of Hernandez's violent character irrelevant.
On the other hand, the errors in excluding evidence of Hernandez's character did prejudice Duggan with respect to the murder charge, given that there was enough uncertainty about Duggan's role in the shooting to heighten the importance of evidence that may have influenced the jury's general perceptions of Duggan and Hernandez. The jury heard evidence of Duggan's past wrongdoing through the gang experts (see Parts IV and V, post), and the erroneous admission of evidence of Duggan's connection to a carjacking shortly after the Hernandez shooting significantly added to the portrait of Duggan as a violent criminal. In contrast, the exclusion of all the evidence of Hernandez's prior specific acts of violent conduct and his professed love of fighting gave the victim, as appellant Duggan argues, a "false aura of peaceableness." Accordingly, the errors as to the carjacking and the victim character evidence acted in conjunction to create a highly misleading contrast between Duggan and Hernandez, rather than " 'a complete picture of both the defendant's and victim's character.' " (People v. Fuiava, supra, 53 Cal.4th at p. 293.) We need not decide whether the errors in excluding evidence of Hernandez's character alone would require reversal of Duggan's murder conviction, but it is clear the errors added to the prejudice resulting from erroneous admission of the carjacking evidence.
Because we reverse Duggan's murder conviction due to evidentiary errors, we need not consider Duggan's contention that the trial court erred in failing to instruct the jury that imperfect self-defense applies to the natural and probable consequences theory of murder.
III. There Was No Prejudicial Prosecutorial Misconduct with Respect to the Taser
Appellants claim it was prosecutorial misconduct for the prosecutor to assert during her closing argument that Hernandez was unarmed. During her rebuttal argument, the prosecutor argued Griffin's claim he feared for his life was not credible because, "It doesn't make any sense. He is telling you, 'I was in mortal danger. I was so scared I feared for my life.' Really? You're an armed Norteño with a friend there, alone in a bedroom with this little unarmed man and you're in fear for your life because he reached for his belt." The trial court overruled an objection by Griffin's counsel that the argument misrepresented the facts and declined to admonish the jury.
As respondent argues, the argument was proper under the reasoning of People v. Lawley (2002) 27 Cal.4th 102. There, the California Supreme Court held the trial court properly excluded on hearsay grounds a declarant's out of court statement that the Aryan Brotherhood had ordered him to kill the victim. (Id. at pp. 152-155.) The court also rejected the defendant's contention that the prosecutor engaged in misconduct in asserting the declarant did not have a motive to kill the victim. (Id. at p. 156.) The court held the prosecutor had not used "deception or reprehensible methods to persuade the jury . . . . [b]ecause the prosecutor's argument constituted fair comment on the evidence, following evidentiary rulings we have upheld." (Id. at p. 156; accord People v. Cordova (2015) 62 Cal.4th 104, 136-137.)
Similarly, in the present case the trial court properly excluded evidence Hernandez had a taser: the evidence was irrelevant to Griffin's state of mind because Griffin did not claim he saw the taser, and the taser was properly excluded under Evidence Code section 352 to the extent it was offered to show Hernandez had a violent character. Thus, the prosecutor's statement was proper argument regarding the credibility of Griffin's story based on the information known to him and the evidence admitted at trial.
Appellant Griffin actually testified Hernandez was armed with a wrench, but appellants on appeal base their claim solely on exclusion of the taser.
In any event, even if the argument constituted misconduct, it was harmless because it is not "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836; see also People v. Sanchez (2014) 228 Cal.App.4th 1517, 1534 [Watson standard of prejudice applies to prosecutorial misconduct in violation of state law].) The trial court instructed the jury that, "Nothing that the attorneys say is evidence. In their opening and closing statements, the attorneys discuss the case, but their remarks are not evidence." Furthermore, the prosecutor's argument accurately described the state of the record, because (aside from the alleged wrench) Hernandez was unarmed as far as the jury (or Griffin) knew. IV. Evidence of "Criminal Street Gang" Not Insufficient Under Prunty
The prejudice test for federal constitutional error is inapplicable, because the prosecutor's passing remark did not "infect[] the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.)
Citing the California Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty), appellants contend there was insufficient evidence of a "criminal street gang" for purposes of the section 186.22, subdivision (b) gang enhancements attached to counts three and four, and the count six charge of active participation in a criminal street gang under section 186.22, subdivision (a). (See Prunty, at p. 72, fn. 3.)
The substantive gang offense under section 186.22, subdivision (a) provides, "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished [as specified]." (§ 186.22, subd. (a).) The gang enhancement imposes additional punishment for felony convictions "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) Section 186.22, subdivision (f) defines " 'criminal street gang' " as "any 'ongoing organization, association, or group of three or more persons that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively' have committed or attempted to commit certain predicate offenses." (Prunty, supra, 62 Cal.4th at p. 67; see also § 186.22, subd. (f).)
In Prunty, supra, 62 Cal.4th 59, the 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." (Id. at pp. 71.)
Appellants contend the evidence presented at trial "did not meet the requirements of Prunty because the gang evidence presented involved numerous subsets that were not shown to have the required connection to the umbrella Norteño organization." However, in the present case, unlike in Prunty, the prosecution's "criminal street gang" showing did not turn on the existence and conduct of multiple subsets of the Norteños gang. Gang expert Stenger testified that in his opinion the primary activities of the Norteños were "murder, felony assault, stolen vehicles, robbery, narcotics trafficking, burglaries, witness intimidation, and drive by shootings." Stenger opined both appellants were Norteños at the time of the shooting, which meant the present offenses could be considered predicate offenses for purposes of section 186.22, subdivision (f). (People v. Ochoa (2017) 7 Cal.App.5th 575, 586 ["evidence of defendant's own conduct was sufficient to establish the 'pattern of criminal gang activity' "]; see also People v. Gardeley (1996) 14 Cal.4th 605, 625 [charged crime may serve as a predicate offense], overruled on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 (Sanchez); People v. Loeun (1997) 17 Cal.4th 1, 8 [separate offenses committed on the same occasion by different gang members may serve as separate predicate offenses].) There was also evidence that Duggan was involved in a 2010 drive-by-shooting (former § 12034, subd. (b)) committed with another Norteño (Melissa H.) and a member of another gang. Detective Stegner also testified that appellant Griffin had suffered three vehicle theft (Veh. Code, § 10851) convictions. Further, Melissa H. was convicted of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), due to a 2009 incident involving other Norteños.
The testimony of the two gang experts was sufficient to establish the primary activities element of section 186.22, subdivision (f). (Prunty, supra, 65 Cal.4th at 82; People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
As respondent points out, appellants' offenses on the date of the Hernandez shooting were sufficient evidence of the predicate offenses required by section 186.22, subdivision (f). (People v. Ochoa, supra, 7 Cal.App.5th at p. 586.) The prior offenses committed by Griffin, Duggan, and Melissa H. were additional predicate offenses. Appellant Griffin points to gang expert Stegner's testimony that different Norteño subsets existed in the Antioch area and that certain other persons were members of Norteño subsets, but he does not point to any evidence Griffin, Duggan, and Melissa H. were members of a subset, much less different subsets from each other. (Cf. People v. Nicholes (2016) 246 Cal.App.4th 836, 845 [gang expert testified the defendant belonged to a gang subset but did not state that the identified predicate offenses were committed by members of the same subset]; see also People v. Ewing (2016) 244 Cal.App.4th 359, 374 ["the gang expert in Prunty referred to two offenses involving three alleged Norte[ñ]o subsets"].) Appellants cite no authority for the proposition that, when dealing with a gang like the Norteños that has subsets, the section 186.22, subdivision (f) showing must be based on evidence of predicate crimes committed by a gang subset or subsets. (See Prunty, supra, 62 Cal.4th at p. 71, fn. 2 ["The rule we describe in this case applies to all STEP Act cases where the prosecution's theory of why a criminal street gang exists turns on the conduct of one or more gang subsets"]; Prunty, at p. 85 ["nothing in this opinion reflects any skepticism regarding the general factual question of whether the Norteños exist . . . [;] nothing in our opinion reflects doubt that prosecutors can prove the existence of such a criminal street gang when the evidence supports such a conclusion"]; Ewing, at p. 375 ["no evidence showed [alleged gang members] claimed any particular subset. Instead, the evidence was that they identified simply as Norte[ñ]os."].) Because appellants have not shown the prosecution's case depended on evidence of offenses committed by members of different Norteño subsets, appellants' claim of insufficiency of the evidence under Prunty fails.
Appellant Griffin argues the present offenses should not be treated as predicate offenses for purposes of the criminal street gang determination because the jury did not find the killing was gang related. However, the predicate offenses need not be gang-related. (People v. Ochoa, supra, 7 Cal.App.5th at p. 581.)
If a defense counsel believes a gang expert is intentionally omitting information that persons belong to gang subsets in order to evade the requirements of Prunty, counsel may ask about gang subsets on cross-examination. Notably, at the preliminary hearing in the present case Duggan's counsel elicited testimony from Detective Stegner that Norteños do not necessarily belong to a "set" and that Duggan did not (to Stegner's knowledge) belong to a set.
V. The Gang Experts' Testimony Did Not Include Prejudicial Hearsay
Appellants contend the testimony of the prosecution's gang experts, detectives Stegner and Giacobazzi, violated state hearsay law and their confrontation rights under the Sixth Amendment to the United States Constitution. In particular, they argue the experts relied on testimonial and other inadmissible hearsay to show that appellants were Norteños. Any inadmissible hearsay included in the testimony was harmless.
Because any errors were harmless, we need not address respondent's contention that appellants forfeited their objections.
A. The Sanchez Decision
In Sanchez, supra, 63 Cal.4th 665, the California 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." (Id. at p. 686.) The court described case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) On the other hand, the decision does not affect "the traditional latitude granted to experts to describe background information" concerning the expert's "knowledge and expertise and premises generally accepted" in the expert's field (id. at p. 685), which may encompass "general gang behavior." (Id. at p. 698.) An expert may rely on hearsay in forming an opinion, but "[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Further, Sanchez explained a confrontation clause violation occurs when the prosecution's expert relates case-specific testimonial hearsay without establishing both the defendant's prior opportunity for cross-examination (or forfeiture of that right) and the declarant's unavailability. (Sanchez, supra, 63 Cal.4th at p. 686.) Building on Crawford v. Washington (2004) 541 U.S. 36 and its progeny, Sanchez held that "statements about a completed crime, made to an investigating officer by a nontestifying witness . . . are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Sanchez, at p. 694.)
B. Analysis
Appellants contend that, under Sanchez, 12 aspects of Detective Stegner's testimony and four aspects of Detective Giacobazzi's testimony were inadmissible. We can quickly dispose of most of the claims.
We first address the evidence regarding appellant Griffin, which was included in Stegner's testimony. Appellants challenge the expert's testimony that Michael H. told the police Griffin was a Norteño. There was no error because Michael testified to the same at trial and was available for cross-examination. Appellants challenge Stegner's testimony Griffin admitted being a Norteño after an arrest in Oakley for vehicle theft. Once again, there was no error because the arresting officer testified at trial. Appellant Griffin cannot object on appeal to admission of hearsay that a 2006 Contra Costa County Sheriff's report states Griffin self-identified as a Norteño, or that he "associated with Northeners" in prison, because Griffin's counsel elicited those portions of testimony on cross examination. (People v. Harrison (2005 35 Cal.4th 208, 237.) It was not error to admit Stegner's testimony that one of Griffin's brothers has a Norteños-related tattoo because the record does not suggest it was based on anything other than Stegner's personal knowledge.
Griffin's opening brief on appeal describes these as two separate self-identifications (one in 2006 and one in a sheriff's report), but the cited pages of the transcript only describe one self-identification. Further, Griffin's counsel's questioning below suggests Detective Stegner had previously mentioned the self-identification in the sheriff's report, but on appeal Griffin cites only to the reference to the report during the cross-examination.
Admission of the other challenged aspects of Stegner's testimony was harmless—including that Griffin had bed sheets in a red bandana print when he was arrested in 2012 and that Griffin's brother who was a Norteño committed vehicle theft with appellant Griffin. The properly admitted evidence demonstrated overwhelmingly that Griffin was a Norteño.
Both gang experts testified regarding appellant Duggan. The parties stipulated Duggan was convicted in 2010 of permitting another to discharge a firearm from his vehicle (former § 12034, subd. (b)). Detective Giacobazzi testified Melissa H. participated in the offense and he opined she was a Norteño. He also testified Melissa H. was convicted of assault and placed on probation with gang conditions in 2012. To the extent the detective's opinion about Melissa H.'s gang affiliation was based on inadmissible hearsay, appellant has not shown a Sanchez violation, because any underlying hearsay was not relayed to the jury. (Sanchez, supra, 63 Cal.4th at p. 685 ["Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so."]; accord People v. Perez (2018) 4 Cal.5th 421, 457.) It is unclear whether the other matters—that she participated in the 2010 offense, was convicted of a 2012 assault, and was placed on probation with gang conditions—related inadmissible hearsay. To the extent Detective Giacobazzi was relating information from the official court records, the information was admissible hearsay. (Evid. Code, §§ 1271, 1280.) It is conceivable the detective was relating inadmissible hearsay, but, because there was no contemporaneous objection to the testimony, the record on the point is undeveloped. We will not assume the testimony related inadmissible hearsay. (See People v. Ochoa, supra, 7 Cal.App.5th at p. 585; see also People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "].)
In any event, even if the jury did not hear the testimony about Melissa H., there is no reasonable probability the jury would have failed to find Duggan was a Norteño, given Detective Giacobazzi's opinion about his gang affiliation, the evidence of his affiliation with Dean N., and his placement in the Norteño jail module. Any error in admission of testimony about Melissa H. was also harmless as to the alleged error under Prunty, supra, 62 Cal.4th 59, addressed in Part IV, ante.
The parties stipulated Duggan was convicted of felony battery (§ 243, subd. (d)) based on a March 2007 incident. Detective Giacobazzi testified the offense involved a group beating committed with another Norteño-affiliated individual, Dean N. He testified about photographs showing Duggan and Dean N. making Norteño hand signs. On appeal, appellants challenge a portion of Giacobazzi's testimony that someone yelled during the beating, "He's a scrap." Any error in admission of that additional piece of information was harmless.
Appellants challenge admission of Detective Giacobazzi's opinion Duggan was a Norteño. Giacobazzi testified that opinion was "[b]ased on my prior knowledge of him, based on all of the history that he has with our agency, contacts [that] have been made with both him and many of—actually, all of the individuals in that one particular picture that we saw along with multiple other individuals. [¶] All of whom I believe based on my contacts, reports that I have read, are all Northerners/Norte[ñ]o gang members in the city of Concord. And the crimes that were committed, the individuals they were committed with. All lead me to believe that he's a Norte[ñ]o." That portion of testimony did not relate hearsay. Although it appears Giacobazzi relied in part on police reports, his reliance on those materials did not run afoul of Sanchez. (Sanchez, supra, 63 Cal.4th at pp. 685-686.)
Finally, appellants object to admission of Detective Stegner's testimony relating what Sheriff's Deputy Lambert told him about an incident that resulted in Duggan being moved from the Norteño jail module. Stenger testified Duggan approached the deputy asking to be removed from the module and the deputy told Duggan he would move him at 1:00 a.m. so no one would see. But before that could happen Duggan was moved for attacking a fellow Norteño. It does appear the testimony was inadmissible hearsay, but admission of it was harmless in light of the other evidence of Duggan's gang affiliation, including that summarized in the previous paragraphs and the evidence of his jail housing (see Part VI, post). VI. Appellant Duggan Has Not Shown Error Under Elizalde
A. People v. Elizalde
In People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), the California Supreme Court considered whether a routine inquiry about gang affiliation posed to the defendant while he was being processed into jail fell within the so-called "booking exception" to Miranda as articulated in Pennsylvania v. Muniz (1990) 496 U.S. 582. Elizalde noted that, under Muniz, no Miranda warnings are required "for a limited category of booking questions involving biographical data" and admission of a defendant's answers at trial to that limited category does not violate the Fifth Amendment. (Elizalde, at p. 531.) However, "[f]or questions outside this limited category, . . . answers given, without an admonition, to questions an officer should know are reasonably likely to elicit an incriminating response may not be admitted in the prosecution's case-in-chief." (Id. at pp. 531-532; see also People v. Roberts (2017) 13 Cal.App.5th 565, 573-574.)
See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Roberts summarized Elizalde's holding as follows: "Although it declined to delineate the precise scope of the booking exception in all circumstances, Elizalde concluded that 'questions about gang affiliation exceed it.' [Citation.] The court reasoned that gang affiliation questions certainly did not conform to the narrow exception contemplated by Muniz for basic identifying biographical data which involved 'questioning . . . generally unrelated to crime and unlikely to elicit an incriminating response.' [Citation.] Instead, the questioning had to be assessed under the . . . definition of ' "interrogation" ' as 'questions the police should know are "reasonably likely to elicit an incriminating response." [Citation.]' [Citation.] Applying that test in California, which provides a comprehensive scheme of penal statutes aimed at eliminating criminal activity by street gangs and for which substantial punishment could result, Elizalde concluded that posing gang affiliation questions to a defendant were reasonably likely to elicit an incriminating response 'even if the deputies' subjective intention was benign.' " (Roberts, 13 Cal.App.5th at p. 574.)
B. Factual Background
At the preliminary examination, Detective Stegner testified he believed appellant Duggan was a Norteño based upon the facts of the underlying case, Duggan's criminal record, a gang-related tattoo, Detective Giacobazzi's statement that Duggan is a Norteño, and the fact that he was placed in a Norteño module at the jail (called "A" module). With respect to the last factor, Stegner explained on cross-examination by Duggan's counsel that jail inmates are normally assigned to a module based on the inmate's answers to a classification questionnaire. He explained, "They ask the inmate a series of questions and based on those questions will send somebody to whatever module they feel or the deputies deem would be the safest for that individual." However, he did not testify Duggan was placed on the A module based on the questionnaire. Instead, he testified "I know that [Duggan] asked to go on A module." He said he got that information from a jail deputy who had read the classification report. Duggan's counsel asked, "So somebody wrote a document that tells you that he requested that; is that accurate?" Stegner responded in the affirmative.
Before trial, appellant Duggan moved to exclude any evidence he admitted gang affiliation when being booked into county jail absent evidence he had been informed of his Miranda rights. At the hearing on that motion, the prosecutor stated she did not intend to elicit any statements made by the defendants during the jail classification process, but the gang expert did "heavily" rely on the fact that the Duggan was housed in the Norteño module. On appeal, appellant Duggan argues his counsel objected to admission of such testimony. It is not clear that counsel did so object. In any event, the trial court ruled the prosecution's gang expert would be permitted to rely on the fact of the jail housing decision, but the court indicated it would likely find inadmissible any "booking statements admitting to gang membership in the absence of Miranda."
Because we conclude Duggan has not shown he was housed in A module due to his answers to the classification questionnaire, we need not address whether he forfeited any objection to testimony based on his jail housing.
At trial, Detective Stegner opined Duggan was a Norteño, based on the same factors he described at the preliminary examination. With respect to the jail housing issue, Stegner testified the jail's A Module is reserved for Norteños. The parties do not cite to portions of the record in which Stegner (or another witness) testified about Duggan being housed in the A Module, but Stegner did testify in some detail about the circumstances under which Duggan was taken off the module. (See Part V.B., ante) The prosecutor's question leading into that testimony was, "If [Duggan] is a Norteño and it's your testimony that he was on A module after he was taken in for this murder, are you familiar with how he got off A?" Accordingly, it is clear the jury was informed, as a basis for finding Duggan is a Norteño, that he was housed in the jail module reserved for Norteños.
Stegner testified "overflow" inmates are sometimes housed on A Module, but they "are generally black inmates that won't have problems with Norteños." There is no indication Duggan was placed in the module as an overflow inmate. --------
C. Analysis
On appeal, appellant Duggan contends his presence on A Module resulted from his admission to being a Norteño in response to classification questioning during his booking into jail. He argues this court can infer Duggan was asked about his gang affiliation because the intake process would have been the same as occurred in Elizalde, which also arose out of Contra Costa County. (Elizalde, supra, 61 Cal.4th at p. 529 ["[At] Contra Costa county jail, inmates are typically asked three questions during intake: if they have been to the unit before, if they have a gang affiliation, and if they are fearful for their safety."].) He further argues his (presumed) response to the (presumed) question about his gang affiliation was involuntary "because the jail officers effectively presented Duggan with an impossible, 'damned-if-you-do, or damned-if-you-don't' choice. The choice was between waiving his constitutional right to silence and confessing gang membership, or else remaining silent, but risking placement in jail housing with enemy gang members." He finally argues the evidence he resided in the Norteño module was the "fruit" of his (presumed) involuntary statement and, therefore, Detective Stegner should not have been permitted to rely on his placement in the module to support his opinion Duggan was a Norteño. (See United States v. Patane (2004) 542 U.S. 630, 639 ["fruits of actually compelled testimony cannot" be used against a defendant].)
We need not address the merits of Duggan's claim because there is no evidence Duggan's placement in the Norteño unit was due to his response to a jail intake question about his gang affiliation. As noted previously, the only evidence is Detective Stegner's hearsay testimony he was told Duggan "asked to go on A module." Accordingly, assuming Duggan was asked about his gang affiliation, and assuming such a question is inherently coercive, there is no basis to conclude his placement in the Norteño module was due to any answer he gave about his gang affiliation, as opposed to a separate and entirely voluntary request on his part. Duggan's claim fails.
DISPOSITION
The murder conviction of appellant Duggan is reversed. The judgment is otherwise affirmed. The matter is remanded for resentencing as to appellant Duggan, as well as any retrial of the murder charge as to Duggan.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.