Opinion
H048717
04-06-2023
THE PEOPLE, Plaintiff and Respondent, v. IVAN HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1775035)
LIE, J.
Defendant Ivan Hernandez shot and killed a rival gang member, Jesus Ayala, in view of surveillance video cameras. He was convicted by a jury of second degree murder, possession of a gun, and possession of ammunition. The jury also found true two gang enhancements alleged as to the charges of possession of a gun and possession of ammunition. The trial court sentenced Hernandez to a total term of 40 years to life in prison.
On appeal, Hernandez argues that the prosecutor committed prejudicial misconduct by falsely arguing that the victim was unarmed and by asking argumentative questions of a prosecution witness, the trial court erred by excluding evidence that the victim was in possession of two knives at the time of his murder, the trial court erred by failing to correct an error in its instructions, and Assembly Bill No. 333 (2021-2022 Reg. Sess.), which amended the elements of the gang enhancement statute and mandated bifurcation of gang enhancements, applies retroactively and requires reversal of his convictions. We agree that the gang enhancements must be vacated and reverse the judgment as to those enhancements. We otherwise affirm.
Hernandez has filed a petition for writ of habeas corpus that this court ordered to be considered with this appeal. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. BACKGROUND
A. The Information
On November 26, 2018, the Santa Clara County District Attorney's Office filed an information charging Hernandez with murder (Pen. Code, § 187, subd. (a); count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 3). As to count 1, it was alleged that Hernandez personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c) &(d)), committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(5)), and intentionally killed the victim, Jesus Ayala, while an active participant in a criminal street gang to further the gang's activities (§ 190.2, subd. (a)(22)). As to counts 2 and 3, it was alleged that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(A)).
Unspecified statutory references are to the Penal Code.
B. The Trial 1. Ayala's Murder
On September 29, 2017, at approximately 6:30 p.m., Ayala was shot to death in a strip mall parking lot on Jackson Street in San Jose. Surveillance videos show Ayala standing with Carlos Z. on a strip mall sidewalk when a sedan bypasses an open parking space to pull into a disabled access area next to Ayala. Ayala and the driver appear to eye each other for a moment, and it is unclear whether they are speaking. Ayala steps forward along the driver's side of the sedan as the driver begins to emerge. Ayala's hands are empty and at his sides, and Carlos Z. remains on the sidewalk. Ayala passes briefly within arm's reach of the driver, continues past to the rear of the sedan, and keeps his eyes on the driver. The two exchange words.
As Ayala passes him, the driver draws a gun. The passenger of the car also gets out. The driver racks his gun with his left hand. Ayala then starts to back away from the car, walking past the rear of two adjacent parked vehicles. The driver follows Ayala and, as Ayala continues in the direction of one of the strip mall's open doorways, fires toward him several times. Ayala then falls or dives for cover toward two bicycles on the sidewalk. The driver retreats toward his own car, pausing once to fire another volley at Ayala while Ayala is on the ground. The driver and the passenger then drive away in his sedan.
Juan Z. and Carlos Z. had gone to the strip mall with Ayala that evening to eat at the Pizza Box restaurant. Juan, who was on crutches at the time, was on his way to the bathroom inside the restaurant when he heard gunshots. Juan went outside the restaurant to see what had happened. Carlos and Ayala were already outside, and Juan saw that Ayala was lying injured on the ground. Juan stayed with Ayala until an ambulance came.
In an earlier interview, Juan told officers that he had stepped outside before the shooting started. At the time, Juan said that he saw two men drive up but that he went back inside because he needed to use the bathroom. The surveillance video shows him standing in the pizza shop doorway for four seconds, then reentering before the shooting begins; the video does not show Juan's location within the pizza shop.
Juan knew that Ayala was "sort of" a gang member, and that he had recently been released from custody following a probation violation. Juan testified that he "hang[s] out" with Sureno gang members but denied being in a gang himself.
Although Carlos testified at trial, he confirmed only that he was with Juan and Ayala at the Pizza Box that evening and otherwise denied any recollection of Ayala's killing or any of his statements to the police at the scene. In those previous statements, Carlos had recounted standing with Ayala in front of the Pizza Box when a car arrived with two men inside. The car's driver looked at both him and Ayala-"stared them up and down," looking "hard" and angry or ready to challenge someone to a fight. The driver had a tattoo under his left eye of either four dots or a teardrop. Ayala asked the driver, "What's up?" Carlos said that the driver responded, "Where are you from?" Ayala then showed his arms to the driver and approached the car. When the driver got out of his car holding a gun at his side, Ayala started to back away and tried to run; the driver then fired five or six gunshots. Before Ayala was shot, Carlos said that the passenger of the car had gotten out of the car at some point and, "panicking," attempted to "calm the driver down." The officer interpreted Carlos's reference to "panicking" as a belief that the passenger was concerned that the confrontation was "all out in the open" and was therefore trying to get the driver to leave.
Carlos had a knife clipped to the inside of his pants pocket. Only the clip was visible, as the knife itself was inside the pocket. An officer who noticed the clip contacted Carlos to have him put the knife away, so that other "officers wouldn't, one, engage him in a manner where they thought he was a threat and, also, potentially elicit a hostile response."
Bystander M.Z. was leaving a store in the strip mall when the shooting occurred. M.Z. heard a total of five shots, and she described the shooter as standing in the parking lot, getting into a car. The shooter fired two shots, took a step backward, and then appeared to come back and fire another three shots. M.Z. later identified Hernandez as the shooter from a photo lineup.
San Jose Police Department Officer Leonard Lao was the first responding officer at the scene. The strip mall had several businesses, including restaurants the Pizza Box and Las 7 Regiones. When Lao arrived, several bystanders signaled him over, and he saw a man lying on the sidewalk in front of Las 7 Regiones. Lao recognized the victim, Ayala, because he had previously registered as a gang member at the police station. Gang members are required to register if they have been convicted of either a felony or a misdemeanor, and Ayala had been convicted of manslaughter.
As Ayala was lying on the sidewalk, Lao could see some of his tattoos, including a tattoo of three dots on his hand, which Lao described as a common Sureno gang tattoo. Ayala also had "SPV Dukes" tattooed on his forearm and an "X" and "3" on his ankles, signifying the number 13. Ayala also had tattoos on his fingers-a single dot on his middle finger and three dots on his ring finger, which also signified the number 13.
2. The Police Investigation and Hernandez's Arrest
An investigator with the police department's crime scene investigations unit was able to enhance the surveillance videos to get a clearer view of the sedan's license plate, which was then provided to investigating officers. A forensic analyst was also able to reduce the surveillance video's speed in an attempt to identify when the fired rounds struck the cement and the nearby parked vehicle.
On November 24, 2017, officers located the suspect vehicle by its license plate number. The car was tested for gunshot residue-one sample was taken from the driver's seat area, and another sample from the steering wheel, the gear shift, and the center console. Officers discovered a bullet casing on the driver's floorboard, and paperwork inside the car stated that the car belonged to Hernandez. An expert in gunshot residue and analysis tested the residue samples taken from the sedan and found gunshot residue on both samples.
The car was registered to Juan Manual Hernandez, but Ivan Hernandez was identified as its driver during a traffic stop the prior year. Hernandez's probation officer, Chris Franco, confirmed that Hernandez was the man in the surveillance video footage.
Based on the surveillance video footage, a law enforcement officer was able to identify the passenger of the car as Eduardo Rodriguez. Rodriguez was arrested and questioned about Ayala's murder, but he was unhelpful and was eventually released.
3. Gang Evidence a. Surenos and Nortenos
Aside from Officer Lao, multiple other gang experts testified in this case: Officer Richard Martinez, Detective Gabriel Cuenca, Officer Nicholas Bronte, and Sergeant Justin Jantz.
Sureno criminal street gangs affiliate with the Mexican Mafia prison gang, whereas Norteno criminal street gangs are under the umbrella of the prison gang Nuestra Familia. Surenos associate with the number 13, because "M" is the 13th letter of the alphabet, and the color blue. Nortenos associate with the number 14 and the color red.
As rivals, Nortenos and Surenos have many violent conflicts. If a rival gang member enters another gang's territory, a gang member may be expected to protect the gang's territory. Conversely, gang members are sometimes expected to go out and show the gang's strength by going into rival gang territory to either assault, shoot, or stab somebody to bolster the gang's reputation. Reputation is key in gang culture because it gives the gang strength. Accordingly, when a rival gang member enters another gang's territory, gang members will conduct a "street check" by asking rivals about their gang affiliation and confronting them. Street checks typically end up in assault.
Sometimes Norteno and Sureno gang members go out of their way to street-check each other. These types of activities improve the gang's standing by instilling fear. Generally, a Norteno gang member who is disrespected is expected to retaliate, sometimes with violence. A gang member who has a weapon when disrespected is expected to use that weapon as part of their responsive violence. Gang members can initiate a street check by asking "What's up?" or "Where are you from?" A Norteno gang member would be expected to confront or street-check a Sureno, and they would be expected to act violently against a Sureno in that context.
Gang members may have distinctive tattoos. For example, a tattoo that has four dots is recognizable as a Norteno tattoo to both Norteno and Sureno gang members. An individual is not supposed to get a gang tattoo unless they have "put in some work in the gang," and individuals who get tattoos that they have not earned may be disciplined by other gang members.
b. SPV and Ayala's Gang Affiliation
Surenos Por Vida (SPV) is a Sureno subset in San Jose. SPV claims a territory in East San Jose near Heller Place and Stowe Avenue, encompassing several city blocks and bordering Jackson Street, where Ayala was murdered. The strip mall where Ayala was killed was several blocks from SPV territory. Officer Martinez characterized SPV as a "ruthless gang," known for violence.
In addition to the tattoos on his ankles, forearm, and fingers, Ayala had a large tattoo on his stomach that said "SPV." Based on Officer Martinez's training and experience, Ayala's tattoos would be recognizable to both Surenos and Nortenos and were indicative of Sureno gang membership. Martinez opined that Ayala was a SPV gang member. If a Norteno or a Sureno were to encounter each other "in an unfamiliar location," they might "be afraid of one another" and "might act on that fear."
Martinez also briefly noted that he had interviewed Ayala before for a stolen vehicle case, which later resulted in Ayala's incarceration.
c. NPS and Hernandez's Gang Affiliation
Northern Pride Soldiers (NPS) are a Norteno subset. According to Officer Bronte, NPS's primary activities include "[a] number of crimes, all enumerated in 186.22, sub (e), things like murder, carjacking, robbery, extortion." Bronte opined that NPS had more than three members and operated as either a formal or informal gang. NPS also had specific rivalries, including a rivalry with SPV. NPS territory generally ranged from Cropley Avenue and North Capitol to the east foothills of San Jose. Rather than being formally jumped into the gang, NPS gang members are typically friends from a young age or are family members.
NPS has common signs and symbols, including the color red, the numbers 67 or 677, the use of the word "Cropley," and an association with Gerardo Medina ("Lil'Gee"), an NPS member who was killed in a gang shootout. NPS members frequently display Medina's name in some form in tattoos and graffiti and take photographs at his gravesite.
NPS gang members are expected to engage in gang activities, including "putting in work"-in other words, committing crimes. A gang member who commits crimes benefits the gang by increasing the gang's notoriety. Committing a crime in daylight can be considered brazen and can increase the gang's notoriety, which will cause others to fear them. The gang's status permits them to commit crimes whenever they want to and can help with recruitment of new gang members. Asking a gang member, "What's up?" can be seen as disrespectful, as it is commonly interpreted as, "Do you want a fight?" It can also be considered a street check-a precursor to a fight.
NPS members are generally expected to respond violently to being street checked by a rival. A NPS member that does not respond to being street checked will face consequences. They might be disciplined by the gang, and the gang member's status within the gang might be damaged. A NPS gang member would view being street checked as disrespectful. A rival Sureno calling attention to his gang tattoos would also be considered disrespectful. These types of actions generally result in a violent response. Gang members obtain notoriety within the gang by putting in work or committing crimes, and there is additional value in committing a crime in or near the gang territory of a rival gang. Gang members may intentionally disrespect a rival to gain power, show they are not afraid, increase their own status, or increase their gang's status.
The gang experts provided evidence of several predicate offenses committed by NPS members. First, in 2015, Officer Bronte investigated a homicide in San Jose, which later resulted in a manslaughter conviction for NPS member Solomon Bowen. Hernandez was a passenger in Bowen's car when he was arrested, and officers found a red bat inside the car. Additionally, during the investigation into Bowen, officers found a photograph of Bowen and Hernandez together at Medina's gravesite. Bowen had several other convictions aside from the manslaughter, and he had previously been convicted of assault with a deadly weapon in violation of section 245 and three convictions of vehicle theft in violation of Vehicle Code section 10851.
And second, in August 2015, NPS member Dave Montenegro was convicted of possession of a concealed firearm and admitted that he committed the crime for the benefit of a gang. Montenegro, along with another man, had been stopped on the street by officers after they thought he looked similar to a robbery suspect. Both men were later determined not to be involved in the robbery.
The gang experts and other witnesses also provided evidence of Hernandez's affiliation with NPS. In 2016, Hernandez was convicted of possession of a sap in violation of Penal Code section 22210 and admitted the allegation that he committed the crime for the benefit of a criminal street gang.
In November 2016, while Hernandez was incarcerated in jail, he participated in a regimented "machine" workout, a type of workout where a group of inmates with the same identification or ethnicity exercise together in cadence to intimidate other groups or to "self-discipline each other." The workout was not permitted under the jail rules at the time, as inmates who were "affiliated" with each other were not permitted to exercise together.
In April 2017, probation officer Franco conducted a probation search of Hernandez's home and located various gang paraphernalia in his house. In part, Franco found a red cross, a red jersey with the number 14 on the back, and a shirt with the numbers "6-7" written on it. Franco also found a photograph of Hernandez on his phone where he is seen making signs indicative of NPS membership.
In October 2016, Hernandez was caught vandalizing a Valley Transit Authority (VTA) directory. Hernandez was using a knife to etch the letter "X' and the number "4," as well as the numbers "677."
Sergeant Jantz reviewed photographs of Hernandez's tattoos and saw several signs and symbols of gang membership. Hernandez had tattoos of four dots and a single dot under his eyes and another tattoo-"NPS"-on his chest. Based on Hernandez's tattoos, his prior conviction, his vandalism of the VTA directory, and his participation in the "machine" workout while in jail, Jantz opined that Hernandez was an NPS member on September 29, 2017.
C. The Verdict and Sentencing
On July 27, 2020, the jury found Hernandez not guilty of first degree murder but guilty of second degree murder. As to the conviction for murder, the jury found true the allegation that Hernandez had personally discharged a firearm but was unable to reach findings on the gang murder special circumstance or the gang enhancement. The jury found Hernandez guilty of possession of a gun and possession of ammunition and found true the gang enhancements alleged as to those counts.
On October 15, 2020, the trial court sentenced Hernandez to 15 years to life for second degree murder and an additional 25 years to life for the personal discharge enhancement. The trial court also imposed but stayed under section 654 two two-year terms for possession of a gun and possession of ammunition plus an additional three years for the gang enhancement as to each count.
II. DISCUSSION
A. Ayala's Possession of Two Knives
Hernandez argues that the prosecutor committed misconduct by falsely arguing to the jury that Ayala was unarmed when he knew that Ayala was in possession of two knives when he was killed. He further argues that the prosecutor's misconduct underscores that the trial court erred by excluding evidence of the knives in the first instance. We conclude that no misconduct occurred and, alternatively, even if we assume that the prosecutor's comments were erroneous and defense counsel rendered ineffective assistance by failing to object, counsel's omissions were not prejudicial. We also conclude that the trial court did not err in excluding evidence of Ayala's knives and that the exclusion, even if erroneous, would not have been prejudicial.
1. Background
Before trial, the prosecutor moved in limine to exclude evidence that Ayala was in possession of two knives at the time of the shooting, on the ground that there was no evidence that Hernandez was aware of the knives, which were concealed in Ayala's pocket. Defense counsel, however, argued that the evidence should be admitted because Ayala had recently been released from jail and had three "separate incidents of [violating section] 245," two of which involved "stabbings or shankings." Defense counsel also pointed out that there was no dispute that there was some sort of verbal altercation between Ayala and Hernandez, and the presence of knives would be relevant to Hernandez's claim of imperfect self-defense and to Ayala's "demeanor" and the "way he act[ed]" toward Hernandez: "[T]he fact that he possessed these weapons when he walks up to Mr. Hernandez says something about him and what his intention was." Ultimately, the trial court ruled that there would be no reference to the knives at trial "absent further order." It noted that the trial evidence, including potential testimony from Hernandez, could alter any number of its in limine rulings.
During closing arguments, the prosecutor played the surveillance video footage for the jury. In reference to the video, the prosecutor commented that Ayala "has nothing in his hands." The prosecutor also noted that when Ayala was walking toward Hernandez's car, his hands were "unclenched." And as Ayala was backing away from Hernandez, he "still ha[d] nothing in his hands." Based on the foregoing, the prosecutor argued that the videos showed that Ayala's hands were empty and that he made no aggressive action toward Hernandez.
Subsequently, the prosecutor made the following arguments, in response to whether self-defense was applicable: "Jesus Ayala displayed no weapon. He made no violent move. He swung no punch." The prosecutor also acknowledged that if there was a threat of great bodily injury to Hernandez, Hernandez was entitled to pursue Ayala until the danger of death or great bodily injury had passed. However, the prosecutor noted that the "second shooting [was] telling," because "Jesus Ayala could not possibly have been a threat anymore." At that point, Ayala was "[o]n his hands and knees, still with no weapon, unable to make any physical threat to Mr. Hernandez;" thus, "that second set of shots [was] completely unjustifiable." The prosecutor then reiterated several times that there had been "no weapon in [Ayala's] hands" during the shooting, and that Ayala's "hands were empty this entire exchange."
The prosecutor then argued that the jury should reject any argument that the shooting was justified because "Jesus Ayala's hands were not visible at the moment Ivan Hernandez shot him." The prosecutor stated: "[I]t is clear that there was no actual threat. There is no weapon there. Jesus Ayala never displays it. There is no threat of force. Mr. Ayala never even stops or confronts Ivan Hernandez directly. And, in fact, even Mr. Hernandez's passenger, Eduardo Rodriguez, knows that there's no threat there." Defense counsel objected to this argument as follows: "Facts not [in] evidence, Mr. Rodriguez's knowledge." The trial court overruled the objection.
The prosecutor later reiterated: "Ivan Hernandez's force was wildly excessive and disproportionate. Ivan Hernandez shot Jesus Ayala despite the lack of Mr. Ayala displaying any weapon or making any threatening punch or threat. [ ¶] . . . [¶] Jesus Ayala had no weapon at all. He made no violent motion towards the defendant. Mr. Hernandez pulled his gun immediately. The only thing that happened was a verbal exchange at that point: 'What's up?' That's it. That's all it took for Ivan Hernandez to pull his gun and rack that round into the gun."
2. Prosecutorial Misconduct a. Prosecutorial Error
Hernandez acknowledges that defense counsel did not object to the majority of the prosecutor's alleged false argument, but he argues that if his claims of misconduct were not preserved on direct appeal, his defense counsel was ineffective by failing to adequately object below. We therefore reach the merits of his claims despite any forfeiture because of his alternative claim of ineffective assistance.
A prosecutor commits misconduct when he or she" 'uses deceptive or reprehensible methods to persuade the jury.'" (People v. Parson (2008) 44 Cal.4th 332, 359.)" '[S]uch actions require reversal under the federal Constitution when they infect the trial with such" 'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.'" (Ibid.) "To establish such error, bad faith on the prosecutor's part is not required. [Citation.] '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.'" (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).) Although a prosecutor is generally given wide latitude during argument, "[d]ue process . . . bars a prosecutor's knowing presentation of false or misleading argument." (People v. Morrison (2004) 34 Cal.4th 698, 717.) "[A] prosecutor may not mislead a jury," including by asking "the jurors to draw an inference that they might not have drawn if they had heard . . . evidence the judge had excluded." (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 (Daggett); see United States v. Blueford (9th Cir. 2002) 312 F.3d 962, 968 ["it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt"].)
After reviewing the entirety of the prosecutor's argument, we conclude that no misconduct occurred. Viewed in isolation, the prosecutor made several comments that can be interpreted as suggesting that Ayala was not in possession of any weapons at the time that he was shot and killed. For example, as Hernandez points out, the prosecutor at one point stated, "There is no weapon there."
Hernandez, however, ignores the context of the prosecutor's arguments. When considering the prosecutor's arguments to the jury, we consider them as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) Furthermore, we examine whether there was" 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Centeno, supra, 60 Cal.4th 659, 667.)
The crux of the prosecutor's arguments on this point was not that Ayala was not in possession of weapons but that he was not armed with a visible weapon in his hands and was not displaying a weapon. The prosecutor illustrated this point by showing the surveillance video footage to the jury and describing what was seen on the video-that Ayala had no visible weapons in his hands. The prosecutor then argued that Hernandez's theory of imperfect or self-defense should be rejected by the jury because Ayala had no visible weapons. The prosecutor's argument that "[t]here is no weapon there," was, for example, immediately followed by his statement that Ayala never "display[ed]" a weapon and that there was nothing Ayala's his hands at the time he was shot.
Likewise, shortly preceding the prosecutor's comment that "Jesus Ayala had no weapon at all," the prosecutor had stated that "Ivan Hernandez shot Jesus Ayala despite the lack of Mr. Ayala displaying any weapon or making any threatening punch or threat." Considered together, a fair reading of these statements is that the prosecutor was not arguing that there were no weapons on Ayala's person, but that there were no weapons visible in Ayala's hands that would have constituted a threat toward Hernandez. This argument was not false or misleading-indeed, there was no evidence at trial that suggested that Ayala had any visible weapons, and the surveillance videos corroborate the prosecutor's assertion that Ayala was not holding anything in his hands when he was killed.
Daggett, supra, 225 Cal.App.3d 751, is distinguishable. The trial court in Daggett excluded evidence that the victim, who had been charged in juvenile court with molesting two younger children, had been molested by older children when he was five years old. (Id. at pp. 754, 757.) Yet during closing argument, the prosecutor argued that if the jury believed that the victim had molested the younger children, he must have learned the behavior by being molested by the defendant. (Id. at p. 757.) The Second District concluded that the prosecutor had misled the jury and had "asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded"; thus, the prosecutor had taken advantage of the trial court's ruling excluding the evidence. (Id. at p. 758.) Unlike Daggett, the prosecutor's comments did not capitalize on the excluded evidence. The prosecutor did not argue that Ayala had no weapons in his pocket, or that a search of Ayala's person revealed that he had no weapons. Rather, considered as a whole, the prosecutor fairly argued that Ayala had no visible weapons at the scene. Thus, defense counsel did not render ineffective assistance by failing to object to these statements, as she could have reasonably concluded that the statements did not amount to misconduct.
We similarly find no merit in Hernandez's assertion that cases like Brown v. Borg (9th Cir. 1991) 951 F.2d 1011 (Brown) and People v. Zaheer (2020) 54 Cal.App.5th 326 (Zaheer) are analogous to the situation presented here. In Brown, the prosecutor failed to disclose to the defense that items that had been allegedly stolen from the victim had been recovered by hospital staff who had presumably found them on the victim's body. (Brown, supra, at p. 1012.) The prosecutor in Brown, however, falsely argued to the jury that the items were missing. (Id. at p. 1015.) Likewise, in Zaheer, the prosecutor made an argument suggesting that the defendant was not driving his car when he committed his crimes even though the prosecutor had strong reason to believe that the defendant was driving his own car. (Zaheer, supra, at p. 338.) Unlike in Brown and Zaheer, the prosecutor here did not make any materially false statements if we consider his arguments in context.
Moreover, even if we assume that the prosecutor's comments are susceptible to the interpretation advanced by Hernandez on appeal-that the prosecutor falsely claimed that Ayala had no weapons on his person-and we assume that defense counsel was ineffective due to her failure to object, Hernandez has not demonstrated prejudicial error. Had defense counsel objected and had the jury been admonished that the prosecutor's argument that "Ayala had no weapon" misstated the facts, it is not reasonably probable that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694.) The prosecutor's argument regarding the presence of weapons was directed toward the interaction between Ayala and Hernandez as it related to Hernandez's claim of self-defense-whether weapons would have contributed to Hernandez's perception of danger, which could have justified a use of force. Moreover, the vast majority of the prosecutor's argument about Ayala's possession of visible weapons was appropriate, and the few comments that Hernandez objects to on appeal were brief.
Hernandez argues that the jurors' questions and the length of the deliberations, which took place over the course of four days, demonstrate that the case was close and bear favorably on his claim of prejudice. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [closeness of case indicated by juror questions]; People v. Paniagua (2012) 209 Cal.App.4th 499, 520 [lengthy deliberations bear favorably on issue of prejudice].) The jury questions, however, did not focus on the issue of self-defense. As opposed to self-defense, the length of the deliberations and the number of jury questions is more readily attributable to the jury's consideration of whether Hernandez acted with an intent to kill, or acted with premeditation and deliberation, or whether Hernandez committed the murder for the gang's benefit. And such an interpretation is consistent with the jury's later verdict finding Hernandez not guilty of first degree murder but guilty of murder, and the jury's later inability to reach a verdict on the gang special circumstance and gang enhancement alleged as to the murder count.
Accordingly, we find no merit in Hernandez's claim of prosecutorial misconduct. And for the same reason, we find no merit in his attendant claim of ineffective assistance of counsel.
b. Exclusion of Evidence
Hernandez argues that the prosecutor's argument about the presence weapons underscored the probative value of the evidence regarding Ayala's possession of the knives. He thus insists that the trial court erred in excluding the evidence in the first instance.
" '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." (People v. Wright (1985) 39 Cal.3d 576, 587.) Evidence Code section 1103, subdivision (a)(1) is thus an exception to the general rule of Evidence Code section 1101, subdivision (a), that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." However, admission of evidence under Evidence Code section 1103 is subject to exclusion by the trial court under Evidence Code section 352. (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828 (Gutierrez).) We review the trial court's ruling on the admission or exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (Gutierrez, supra, 45 Cal.4th at p. 828.)
Even assuming that possession of a knife qualifies as a specific act probative of violent propensity within the meaning of Evidence Code section 1103, Ayala's possession of the knives was at best marginally relevant on this record. Hernandez argues that Ayala's possession of knives was relevant to demonstrate Ayala's violent character, which Hernandez thus urges is related to his claim of self-defense. We agree that Ayala's reputation for dangerousness is relevant. "[T]he well[-]established fact in human experience that the known reputation of an assailant as to violence, even if the specific acts are not within the knowledge of the person assaulted, has a material bearing on the degree and nature of apprehension of danger on the part of the person assaulted, (and further even if the reputation is unknown) to show that one who is turbulent and violent may more readily provoke or assume the aggressive in an encounter." (People v. Smith (1967) 249 Cal.App.2d 395, 404.) Evidence of a victim's violent character is also "admissible to show that the victim was the aggressor." (People v. Shoemaker (1982) 135 Cal.App.2d 442, 446.)
Hernandez characterizes his claim of self-defense as "the critical issue[]" at trial, but the record does not support this characterization. Although the jury was instructed on the theories of self-defense and imperfect self-defense, defense counsel ultimately chose to focus on other defenses and argued that if the jury were to find that Hernandez was the shooter, he was not guilty of murder because he responded to a sudden quarrel in the heat of passion. The record further reflects this was a tactical decision based on defense counsel's assessment of the evidence: in pretrial litigation related to her investigation of potential psychological defenses, counsel described the surveillance video as showing that "[t]he driver suddenly shot Ayala" in the course of "a verbal confrontation." In litigating the admissibility of testimony by the forensic psychologist she had retained, defense counsel explained that she "had decided not to present self-defense in this case" because she was not sure she could "lay the foundation for it."
The evidence, however, would have had limited probative value as to Hernandez's state of mind with respect to his claim of self-defense, as the critical determination for the jury was what Hernandez was aware of at the time he shot and killed Ayala. (See People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227 [perfect self-defense requires an honest and reasonable belief in need to defend]; People v. Manriquez (2005) 37 Cal.4th 547, 581 [doctrine of imperfect self-defense requires actual but unreasonable belief in imminent danger of death or great bodily injury].)
As a threshold matter, the video shows first that Hernandez bypasses an open parking spot to pull directly in front of Ayala; by the time Hernandez's firearm is visible on camera, Ayala has already walked past and soon thereafter is in obvious retreat. Even if it had become apparent to Hernandez that Ayala possessed knives not captured by the camera, Ayala had already walked past Hernandez without using or brandishing them, and Hernandez had by that point escalated the confrontation beyond a knife fight. Moreover, there was no evidence that Hernandez knew Ayala or had knowledge of Ayala's personal reputation for violence, beyond what Hernandez may have inferred from Ayala's identification as a Sureno member of SPV. (See, e.g., People v. Tafoya (2007) 42 Cal.4th 147, 165 [absent evidence that defendant knew of witness's reputation for violence, evidence that witness was dangerous was irrelevant to self-defense claim].) For example, there was no evidence that Hernandez knew whether Ayala was reputed to carry knives-if there had been, the presence of knives on Ayala's person would have corroborated such reputation evidence. (See ibid.; see also People v. Thomas (1969) 269 Cal.App.2d 327, 329 [no error in exclusion of character evidence when there was no indication the defendant was aware of the victim's reputation for violence].) Thus, the probative value of the evidence was not particularly significant.
Accordingly, we find Hernandez's reliance on Swilley v. State (Fla. Dist. Ct. App. 2020) 295 So.3d 362, 365-366 to be misplaced. First, Swilley is Florida decision based on Florida law, and its persuasive force is minimized by its distinguishable facts. In Swilley, a District Court of Appeal in Florida reversed the defendant's conviction after concluding that the trial court erred by excluding evidence that the victim had a knife in his pants pocket. (Id. at p. 365.) The evidence of a knife in Swilley lent credence to the defendant's testimony that he knew the victim frequently carried a knife-rendering the evidence probative as to the defendant's claim he was in fear for his safety, given his specific knowledge of the victim's personal habits and character. (Id. at pp. 365-366.) Here, however, Hernandez establishes no such nexus between the happenstance of Ayala's knives and Hernandez's state of mind.
Hernandez also relies on U.S. v. Agurs (1976) 427 U.S. 97 (Agurs), arguing that the United States Supreme Court has recognized that a victim's possession of knives is relevant evidence when a defendant claims self-defense. Agurs, however, does not stand for the proposition advanced by Hernandez on appeal. In Agurs, the prosecution presented evidence that the victim was armed with two knives, but the issue there was not the admissibility of the knives. Rather, Agurs considered whether the prosecutor erred under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose to defense counsel that the victim had prior criminal convictions for assault with a knife and carrying a concealed knife. (Agurs, supra, at pp. 99, 100.) A prosecutor violates due process by failing to disclose evidence favorable to the defendant if the evidence is material either to guilt or to punishment. (Brady, supra, at p. 87.) In other words, Agurs did not contemplate the relevancy or probative value of the knives evidence, and "[i]t is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
In fact, Agurs cuts against Hernandez's argument that the knives had a significant probative value-the Agurs court noted that the victim's criminal history was "largely cumulative" of the evidence that he had two knives in his possession. (Agurs, supra, 427 U.S. at p. 114.) And like in Agurs, the evidence of the knives here would have been largely cumulative of the other evidence in the record of Ayala's dangerousness, which also tended to show he was the aggressor-for example, there was already evidence that Ayala had been convicted of manslaughter, was a member of the SPV gang, and, based on Carlos's prior statements and the surveillance video footage, was the one who approached Hernandez first. The cumulative nature of the evidence diminishes its probative value. (People v. Hendrix (2013) 214 Cal.App.4th 216, 244 [probative value of evidence is diminished if it is merely cumulative of other evidence].)
In his opening brief, Hernandez also argues that the prosecutor emphasized that his possession of a gun was relevant to determine who was the aggressor during the "street check" that preceded Ayala's shooting. Thus, Hernandez insists that the prosecutor's argument on this point demonstrates that Ayala's possession of knives would have likewise been relevant. However, Hernandez's possession of a gun-which the surveillance video shows he is holding while he approaches Ayala-is relevant to Hernandez's mental state and to his claim of self-defense. The probative value of this evidence as to Hernandez's mental state is not equivalent to the probative value of evidence of Ayala's possession of two knives that were not visible to Hernandez.
Moreover, probative evidence admissible under Evidence Code section 1103 is still subject to exclusion under Evidence Code section 352. (Gutierrez, supra, 45 Cal.4th at pp. 827-828.) We must therefore consider its potential for prejudice. Under Evidence Code section 352, evidence is "unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction." (People v. Doolin (2009) 45 Cal.4th 390, 439.) In this case, the trial court could have reasonably concluded that the evidence had the potential to confuse the jury or distract it from the primary issues of self-defense or heat of passion-the facts and circumstances known to Hernandez at the time he committed the murder. For example, the evidence might have invited an improper inference that Hernandez was justified in killing Ayala solely for his violent disposition. The evidence may have also caused the jury to focus on Ayala's possession of the knives despite the dearth of any evidence that Hernandez knew before firing his first shot whether or how Ayala was armed.
Therefore, even though the presentation of evidence would have required little time, the trial court could have reasonably concluded that the limited probative value of the evidence was substantially outweighed by its potential for prejudice. Accordingly, we find no abuse of discretion in the trial court's exclusion of the evidence. (Gutierrez, supra, 45 Cal.4th at p. 828.)
Hernandez argues that the exclusion of the evidence violated his constitutional right to present a defense. However," '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.'" (People v. Blacksher (2011) 52 Cal.4th 769, 821.) Thus, "[a]lthough the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Here, exclusion of Ayala's possession of the knives did not deprive Hernandez of his ability to present evidence of Ayala's propensity for violence or deprive him of the ability to present a claim of self-defense. And, as we have noted, the evidence was largely cumulative of the evidence that was already admitted. Therefore, the exclusion of evidence did not violate his constitutional rights.
Based on the foregoing, even if we conclude that the trial court erred by excluding the evidence, Hernandez cannot demonstrate prejudicial error. When the application of ordinary rules of evidence do not implicate the federal constitution, we review prejudice under the reasonable probability standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Hernandez argues that the evidence in this case was close, particularly to his claim of self-defense. Yet his own argument belies his claim of prejudice-Hernandez concedes that there was "substantial" evidence to support those defenses, in particular evidence that Ayala was a SPV member, had been previously convicted of manslaughter, and was the one who initiated contact with Hernandez. Hernandez also argues that several other identifiable Sureno gang members stood near or behind Ayala (presumably, Carlos and Juan, though Juan denied being a Sureno member at trial), and Carlos even had a knife clipped to the inside of his pants. Given the other evidence to support Hernandez's claim of self-defense and his claim that Ayala was the aggressor, evidence that Ayala possessed knives, which were not visible to Hernandez, would have been largely cumulative. Thus, even if the evidence had been admitted, it is not reasonably probable that Hernandez would have received a more favorable outcome. (Watson, supra, 46 Cal.2d at p. 836.)
Hernandez argues that an officer expressed concern for his safety when he saw that Carlos had a knife clipped to his pants. An officer, however, testified that when he saw the knife, he contacted Carlos so that "officers wouldn't, one, engage him in a manner where they thought he was a threat and, also, potentially elicit a hostile response."
And finally, we are also not persuaded by Hernandez's argument that the trial court in this instance treated the prosecutor more favorably than the defense because it precluded the admission of evidence of Ayala's knives but permitted the prosecutor to present evidence that Hernandez had possessed a knife and a bat on prior occasions. First, the prosecutor did not proffer evidence that Hernandez possessed a bat-the evidence that was admitted was that Hernandez was stopped in a car with another NPS gang member, Solomon Bowen, and that a red bat was found inside the car. Furthermore, the evidence that Hernandez possessed a knife was probative as to Hernandez's gang membership-Hernandez was stopped by police etching graffiti on a VTA directory using the knife. In short, Hernandez's possession of a knife was related to evidence that tended to show he was an NPS gang member. Hernandez's and Ayala's possession of knives was therefore probative of different issues. Hernandez's assertion that there was an "imbalance" in the evidence because of the trial court's ruling has no merit.
B. Additional Prosecutorial Misconduct
Hernandez argues that the prosecutor also committed misconduct by asking Carlos a series of argumentative questions after Carlos denied any recollection of the circumstances of Ayala's death. Irrespective of whether Hernandez has preserved this claim, we see no error in this line of questioning.
On direct examination, Carlos denied having any memory of the events of Ayala's murder, despite having viewed the video a few days earlier and being confronted on direct examination with his prior statements to law enforcement. The prosecutor then played Carlos the surveillance video footage of the crime. Three times during the video playback, the prosecutor prompted Carlos to look up to watch the video. After the video was played, Carlos admitted that he remembered having previously seen the video but did not want to pay attention to it.
The prosecutor asked Carlos, "Do you think it's important that the man who shot and killed Jesus Ayala is prosecuted?" Defense counsel objected to the question on the grounds of relevance and Evidence Code section 352, which the trial court overruled. Carlos answered, "Well, I wouldn't know. I'm not the law. I don't know what you're going to do." The prosecutor then asked Carlos, "Is it important to you that the person who shot Jesus Ayala face justice?" Defense counsel objected, arguing that the question had already been asked and answered, which the trial court overruled. Carlos answered, "Yes, but I don't want to have anything to do with that," elaborating that "it's something I wouldn't want to have to continue remembering." The prosecutor then asked, "Do you think you'll be able to forget Mr. Ayala being killed?" Defense counsel objected on the ground of relevance, which the trial court overruled. Carlos answered, "Well, I just want to be able to move on with life and forget about things that have happened in past." The prosecutor then asked, "Are you here to tell the truth?" And Carlos responded, "Well, I'm just telling you what I remember."
Preliminarily, we conclude that Hernandez forfeited this claim by his failure to make an objection on grounds of misconduct and request an admonition. (People v. Chatman (2006) 38 Cal.4th 344, 403 (Chatman).) Defense counsel's objections to the questions on the grounds of relevance and Evidence Code section 352 do not suffice to preserve for appeal an alternative claim of prosecutorial misconduct. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1241 [objections made on relevance grounds did not preserve misconduct claim on appeal], abrogated on a different point as stated in People v. Rangel (2016) 62 Cal.4th 1192.)
Moreover, even assuming Hernandez had preserved his claim of prosecutorial error, we do not consider the prosecutor's questioning to be improper. "An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable." (Chatman, supra, 38 Cal.4th at p. 384.) The prosecutor asked the questions Hernandez now characterizes as misconduct after Carlos denied remembering the events of Ayala's murder despite his presence at the scene and after he further resisted looking at the surveillance video of the fatal shooting. In context, we discern no basis to infer that the jury" 'drew the most damaging rather than the least damaging meaning'" from this line of questioning. (See Centeno, supra, 60 Cal.4th 659, 667.) Rather, the jury was most likely to have understood the questions as an effort to shame Carlos out of an implausible denial that he had no memory of the events-not as an appeal to sympathy, passion, or consideration of the ramifications of an acquittal, as Hernandez would have it. That the effort was ultimately unsuccessful does not make it error.
Accordingly, even if we were to consider the questions to be argumentative and improper, Hernandez would be unable to demonstrate prejudice on this record. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564 [prosecutorial misconduct examined under Watson standard if state law issues are involved].) The prosecutor's relatively brief line of questioning did not result in the admission of improper evidence or any demonstrable result that would have significantly inflamed the jury, and the jury was later instructed that nothing that the attorneys say is evidence. (See People v. Tully (2012) 54 Cal.4th 952, 1014 [brief exchange by prosecutor and witness that defendant claimed were intended to elicit impermissible" 'victim impact'" evidence was not prejudicial].) Accordingly, Hernandez does not meet his burden to show that it is reasonably probable that in the absence of the claimed misconduct, he would have received a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.)
Indeed, Hernandez himself concedes that this error was likely not prejudicial by itself, as he originally raised this claim solely within his argument on cumulative error.
C. Instructional Error
Next, Hernandez argues that his murder conviction must be reversed because the trial court improperly instructed the jury on imperfect self-defense and later failed to adequately correct the error. We find no merit in this contention, as the trial court corrected its erroneous instruction the following day, and the correct written instructions were given to the jury.
When initially instructing the jury, the trial court read a modified version of CALCRIM No. 571 on imperfect self-defense. In part, the trial court orally stated, "The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder or voluntary manslaughter." (Italics added.)
The parties later agreed that the trial court should not have included "or voluntary manslaughter" at the end of CALCRIM No. 571. The trial court subsequently stated that it would reread the instruction to the jury.
The following day, the trial court informed the jury: "Ladies and gentlemen-one of the instructions that I read yesterday had a slight change. You may not even notice the difference. I'm not going to tell you what the difference is. [¶] To put it I context, I'm going to reread all of them. [¶] That was a joke." The trial court then reread CALCRIM No. 571 to the jury, this time correctly omitting "or voluntary manslaughter" from the last sentence. Afterwards, the parties presented their closing arguments. A written copy of all the instructions, including only the correct version of CALCRIM No. 571 was later given to the jury.
First, we conclude that Hernandez has forfeited his claim of instructional error on appeal. Hernandez did not object to the trial court's oral correction, nor did he request any further instruction. A party generally cannot complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested an appropriate clarifying or amplifying language. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) Relying on People v. Ngo (2014) 225 Cal.App.4th 126, Hernandez argues that this court has rejected a similar claim of forfeiture. Ngo, however, is inapposite-there, the trial court erred when it gave a unanimity instruction that indicated a different time period than the charged information. (Id. at p. 148.) Thus, the instruction in Ngo was not correct in law and responsive to the evidence. (Id. at p. 149.) Whereas here, there is no dispute that the version of CALCRIM No. 571 subsequently given to the jury was correct in law and responsive to the evidence. Thus, to the extent Hernandez wanted the trial court to emphasize the correction that it made to CALCRIM No. 571, his failure to object below has forfeited his claim on appeal.
Even if we were to relieve Hernandez of any forfeiture, we would nonetheless find no error on this record. Hernandez argues that the trial court's attempt at levity- jokingly stating that it was going to reread all the instructions as opposed to only the one instruction it had misread-combined with the statement, "I'm not going to tell you what the difference is," essentially gave the jury conflicting instructions and failed to inform the jury that the first instruction, as initially read, was wrong. Hernandez, however, parses the trial court's words too closely. By informing the jury that there was a "slight change" to the jury instructions and that there was a "difference" between the two instructions, the trial court essentially told the jury that the first instructions contained an error. Without an error, there would be no need for a correction.
Accordingly, we find Hernandez's reliance on Ho v. Carey (9th Cir. 2003) 332 F.3d 587 (Ho), to be inapt. In Ho, the trial court initially instructed the jury that second degree implied malice murder was a general intent crime but later instructed the jury that the general intent instruction only applied to voluntary manslaughter without informing the jury that its previous instruction was incorrect. (Id. at p. 591.) Subsequently, the Ninth Circuit Court of Appeals reversed the district court's denial of a California prisoner's habeas petition after concluding that there was a reasonable likelihood that the jury applied the challenged instructions in an inappropriate way. (Id. at p. 595.) Hernandez argues that Ho is directly analogous, but unlike the ambiguous statements in Ho, the trial court's comments in this case alerted the jury that the first instruction was erroneous.
Moreover, the majority in Ho declined to consider that the trial court had provided the jury correct written instructions, which clarified the general intent instruction. (Ho, supra, 332 F.3d at p. 598 [dis. opn. of Hug, J.].) But in contrast to Ho, the California Supreme Court has held that "misreading instructions is at most harmless error when the written instructions received by the jury are correct." (People v. Box (2000) 23 Cal.4th 1153, 1212 (Box), disapproved of on a different point as stated in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Prieto (2003) 30 Cal.4th 226, 255 (Prieto) ["misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions"].) For example, in Prieto, the trial court erroneously misread an instruction to a jury and informed them that a person is guilty of the crime of murder if he or she" 'unlawfully kills a human being during the commission or attempted commission of a robbery, kidnapping, or rape with malice aforethought.'" (Prieto, supra, at p. 255.) The correct instruction states that a person is guilty of murder if he or she" 'unlawfully kills a human being during the commission or attempted commission of a robbery, kidnapping or rape or with malice aforethought.'" (Ibid., italics added.) Prieto concluded that the misreading was harmless because the jury received the correct written instructions, and, regardless, the misreading could have only benefited the defendant because it narrowed the elements of murder. (Ibid.)
Here, it is undisputed that the trial court subsequently gave the jury the correct written instructions, in addition to orally correcting the misstatement by reading CALCRIM No. 571 without error. The trial court's initial error, without more, thus does not warrant reversal of Hernandez's murder conviction. (Box, supra, 23 Cal.4th at p. 1212; Prieto, supra, 30 Cal.4th at p. 255.)
D. Assembly Bill No. 333
The jury found true the gang enhancements alleged under section 186.22 as to Hernandez's convictions for possession of a firearm and possession of ammunition. Section 186.22, however, has been amended by Assembly Bill No. 333, effective January 1, 2022, which has now modified the definitions of a "pattern of criminal activity" and "criminal street gang." Assembly Bill No. 333 also enacted section 1109, which now requires the trial court to bifurcate the trial on a gang enhancement upon a defendant's request. Hernandez argues that both the amended version of section 186.22 and the newly enacted section 1109 retroactively apply to his case. We agree that the gang enhancements must be vacated as the amended version of section 186.22 is retroactive but conclude the litigation of the gang enhancements in the unbifurcated trial was harmless as to the jury's verdict on the underlying offenses.
1. Section 186.22 a. Amendments to the Statute
Former section 186.22, subdivision (b)(1) provided for enhanced punishments when a defendant is convicted of an enumerated felony offense that is committed "for the benefit of, at the direction of, or in association with any criminal street gang." A criminal street gang was defined as "any ongoing organization, association, or group of three or more persons . . . whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f), italics added.)
Effective January 1, 2022, Assembly Bill No. 333 made several substantive changes to the gang enhancement statute. First, it changed the definition of a criminal street gang to "an ongoing, organized association or group of three or more persons . . . whose members collectively engage in or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f), italics added.)
Assembly Bill No. 333 also changed the definition of a "pattern of criminal gang activity." Under the former version of section 186.22, "the prosecution needed to prove 'only that those associated with the gang had committed at least two offenses from a list of predicate crimes on separate occasions within three years of one another.'" (People v. E.H. (2022) 75 Cal.App.5th 467, 477, fn. omitted (E.H.); former § 186.22, subd. (e).) Assembly Bill No. 333 made five changes to this definition: "First, the predicate offenses now must have been committed by two or more 'members' of the gang (as opposed to any persons. (§ 186.22, subd. (e)(2).) Second, the predicate offenses mut have been proven to have 'commonly benefited a criminal street gang.' (Ibid., italics added.) Third, the last predicate offense must have occurred within three years of the date of the currently charged offense. (Ibid.) Fourth, the list of qualifying predicate offenses has been reduced. (Ibid.) And fifth, the currently charged offense no longer counts as a predicate offense. (§ 186.22, subd. (e)(2).)'" (E.H., supra, at pp. 477-478.)
And finally, Assembly Bill No. 333 amended the statute such that the prosecution is now required to prove that the benefit the gang derives from the predicate and current offenses is "more than reputational." (§ 186.22, subdivision (g).) Section 186.22, subdivision (g) specifies that "[e]xamples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant."
b. Analysis
Hernandez argues, and the Attorney General agrees, that the amendments made to section 186.22 retroactively apply to his case under the principles set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). The Estrada rule provides a "presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (People v. Buycks (2018) 5 Cal.5th 857, 881.) Here, there is nothing in the language of Assembly Bill No. 333 that demonstrates a clear legislative intent for its amendments to apply only prospectively, and by narrowing the scope of section 186.22, it is an ameliorative change in the law as it reduces the possibility that the enhancement will apply. Thus, we concur with the parties that under the Estrada rule, the amendments apply retroactively to Hernandez, as his sentence was not yet final when the amendments became operative. (People v. Lopez (2021) 73 Cal.App.5th 327, 343-344; Estrada, supra, 63 Cal.2d at pp. 744-746.)
We next turn to the issue of prejudice, which we analyze under the harmless-beyond-a-reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. (People v. Sek (2022) 74 Cal.App.5th 657, 668 (Sek) ["[b]y requiring proof for a gang enhancement that the benefit to the gang was more than reputational, Assembly Bill No. 333 essentially adds a new element to the enhancement," implicating a defendant's federal constitutional rights].) Under this standard, we find that remand is required.
Here, the prosecutor argued the following three predicate offenses to the jury during closing argument: Hernandez's presently charged offenses, Solomon Bowen's conviction for manslaughter, and Dave Montenegro's conviction for carrying a concealed firearm. But the basis for the jury's true findings to the gang enhancements are not so clear.
In addition to these prior convictions, we note that the prosecutor also presented evidence that Bowen had a previous conviction of assault with a deadly weapon in violation of section 245 and three convictions of vehicle theft in violation of Vehicle Code section 10851. Likewise, Hernandez had a prior manslaughter conviction, as well as a prior conviction for possession of a "sap." Yet it appears that none of the underlying facts of these offenses were admitted into evidence.
First, it is not clear whether the jury found that the predicate offenses were committed for the benefit of the gang's reputation, which is now precluded under section 186.22, subdivision (g). At trial, Officer Martinez opined that gang members are sometimes expected to go out and show the strength of their gang by going into rival gang member's territory, and by assaulting, shooting, or stabbing somebody to bolster the gang's reputation. Martinez further opined that reputation is key in gang culture because it gives the gang strength. Thus, even though there may have been evidence that some of the predicate offenses were committed for reasons aside from furthering the gang's reputation, we cannot rule out a reasonable doubt that the jury relied only on reputational benefit.
Likewise, under the former version of section 186.22, subdivision (e), predicate offenses could have been committed by any "persons"-but section 186.22, subdivision (e)(2) now requires that predicate offenses have been committed by two or more members of the gang. As to Montenegro's conviction for carrying a concealed firearm, Montenegro was with another person when he was found with a gun. Yet, on cross-examination, defense counsel elicited testimony that Montenegro's companion was not an NPS member.
And finally, the charged offenses can no longer qualify as a predicate offense under section 186.22, subdivision (e)(2), whereas here, the prosecutor expressly argued that Hernandez's present charges were predicate offenses.
Accordingly, we conclude that we must vacate the gang enhancements and remand the matter to permit the prosecution the opportunity to retry the enhancements. (Sek, supra, 74 Cal.App.5th at p. 674; E.H., supra, 75 Cal.App.5th at p. 480.)
2. Section 1109
Hernandez also argues that section 1109, which was enacted by Assembly Bill No. 333, applies retroactively to his case under the principles set forth in Estrada. Section 1109 now requires bifurcation of gang enhancements upon a defendant's request.
The Courts of Appeal are split on this issue, and this court remains divided. One panel from this court has concluded that section 1109 is retroactive under Estrada as an ameliorative change in the law. (People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743 [holding that § 1109 is retroactive]; but see id. at p. 569 (dis. opn. of Elia, J.) [concluding that § 1109 is not retroactive].) Another panel from this court has concluded otherwise, holding that section 1109 is not retroactive. (People v. Ramirez (2022) 79 Cal.App.5th 48, review granted Aug. 17, 2022, S275341 [concluding that § 1109 is not retroactive]; but see id., at p. 67 (conc. opn. of Wilson, J.) [concluding that § 1109 is retroactive but failure to bifurcate was harmless].)
Recently, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), the California Supreme Court acknowledged the split of authority among the Courts of Appeal as to retroactivity of section 1109 but declined to resolve the split, as it concluded that any asserted error in the case before it was harmless. (Id. at p. 1208.) In its decision, the Tran court rejected the contention that a failure to bifurcate constitutes structural error. (Ibid.) The Tran court also concluded that the standard for federal constitutional error articulated in Chapman did not apply on the record before it, because the admission of gang evidence did not render the defendant's trial fundamentally unfair and did not constitute a violation of due process. (Id. at p. 1209.) Thus, Tran applied the reasonable probability test articulated in Watson, supra, 46 Cal.2d 818, 836. (Tran, supra, at p. 1209.)
The issue is now pending review before the California Supreme Court. After deferring review of Burgos pending its decision in Tran, the California Supreme Court has now limited briefing in Burgos to whether section 1109 applies retroactively to nonfinal cases.
As in Tran, we conclude that the admission of gang evidence in this case did not rise to the level of a due process violation. "[N]othing in Assembly Bill [No.] 333 limits the introduction of gang evidence in a bifurcated proceeding where the gang evidence is relevant to the underlying charges." (People v. Ramos (2022) 77 Cal.App.5th 1116, 1132.) As our Supreme Court has noted, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive modius operandi, specific intent, means of applying force or fear, or other issues pertinent to the guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez); People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 [motive is incentive for criminal behavior and its probative value generally exceeds its prejudicial effect]; People v. Duong (2020) 10 Cal.5th 36, 64 [accord].)
Here, much of the gang evidence, including evidence of NPS and SPV's rivalry, would have been independently admissible as relevant to Hernandez's mental state, including motive, intent, and the claim of self-defense as instructed to the jury. His and Ayala's status as members of rival gangs locked ineluctably in violent conflict- Hernandez's membership in NPS, Ayala's membership in SVP, the culture of both gangs, and the rivalry between NPS and SVP-would have all been relevant to show Hernandez's motive in shooting Ayala, his intent to kill, the existence of premeditation or deliberation, and whether Hernandez perceived a need to use deadly force to defend himself.
We acknowledge that some of the gang evidence would likely have been excluded had the trial been bifurcated, particularly some of the evidence concerning predicate offenses committed by fellow NPS gang members like Solomon Bowen and Dave Montenegro. Yet evidence of these predicate offenses was not particularly inflammatory in light of the charged offenses. Bowen, like Ayala, had been convicted of manslaughter, but the prosecutor did not seek to admit evidence of the particulars of Bowen's offense- the evidence presented was that Bowen had been involved in a shooting that resulted in death. Moreover, the facts elicited about Montenegro's offense were limited to his conviction for possession of a concealed firearm at a time when he was seen by officers crossing a street with another person. We discern no fundamental unfairness in the admission of this evidence.
Accordingly, we apply the Watson standard of harmless error. (See Tran, supra, 13 Cal.5th at p. 1209.) Under this standard, assuming that section 1109 is retroactive, any error was harmless because Hernandez establishes no reasonable probability of a more favorable result had his trial been bifurcated. For the contrary proposition, Hernandez argues that evidence that he had been stopped in a car with Bowen and that a bat was found inside the car, along with evidence that he previously possessed a knife and used it to etch graffiti was unduly prejudicial. Yet as we have stated, Hernandez's association with Bowen, an NPS gang member, and his possession of a knife to etch gang-related graffiti, would have been admissible as evidence of Hernandez's own gang membership, which in turn supplied a motive for the murder and circumstantial evidence of an intent to kill. To the extent that evidence of the bat would have been excluded, its admission was relatively innocuous-there was no evidence that Hernandez had dominion or control of the bat or even knew of its presence, let alone used or intended to use the bat for any nefarious purpose.
Moreover, the trial court here gave limiting instructions on the use of the gang evidence. For example, Hernandez's use of a knife to etch on the VTA directory was specifically limited to deciding whether Hernandez "engaged in gang activity." And the trial court instructed the jury on the limited purpose of evidence of gang activity in general, informing the jury that such evidence was limited to deciding whether Hernandez acted with the intent, purpose, and knowledge required to prove the gang enhancements and gang special circumstances, Hernandez's motive to commit the charged crimes, Hernandez's belief in the need to use self-defense, whether Hernandez acted in the heat of passion, and the credibility of witnesses. The jury was specifically instructed that it was not to conclude from the gang evidence that Hernandez "[was] a person of bad character or that he has a disposition to commit crime." Absent any indications to the contrary, we presume that the jury followed these instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
And finally, we observe that the jury in this case did not reach a finding as to the gang special circumstance or gang enhancement alleged as to the murder charge. The jury's failure to reach a unanimous verdict on these allegations undercuts Hernandez's claim that the gang evidence here was unduly prejudicial. Rather, the verdict suggests that the jury carefully assessed the evidence-which included two surveillance videos of the shooting-and was not influenced by any unduly prejudicial gang evidence.
As we have summarized, the surveillance video captured the entirety of the fatal encounter except audio, including Ayala's retreat, the commencement of firing, and the continued shooting after Ayala was on the ground.
For these reasons, we conclude that even if section 1109 were retroactive, remand is not required as error would have been harmless under Watson. (Tran, supra, 13 Cal.5th at p. 1209.)
E. Denial of Bifurcation Motion
Next, Hernandez argues that the trial court erred under former law in denying his pretrial motion to bifurcate the gang enhancements and special allegations because the Legislature has since made clear in enacting Assembly Bill No. 333 that gang evidence is racially discriminatory, prejudicial, and often unreliable. (Assembly Bill No. 333, Stats. 2021, ch. 699, § 2, subds. (d)(1)-(11), (e), (h).) We acknowledge the important legislative findings in Assembly Bill No. 333, but on appeal, we review for an abuse of discretion a trial court's denial of a bifurcation motion under the former law. (People v. Franklin (2016) 248 Cal.App.4th 938, 952 (Franklin).) At the time that the trial court made its ruling, bifurcation of gang allegations was not mandatory but discretionary and appropriate when the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049.) Nor did Hernandez's trial counsel raise the unreliable or racially discriminatory character of the gang evidence in arguing for bifurcation.
As we have concluded, much of the gang evidence introduced at trial would have been relevant to the substantive charges-the evidence was relevant to Hernandez's motive, his intent to kill, and his belief in the need for self-defense. Thus, it was not an abuse of discretion to deny the motion to bifurcate. (See Hernandez, supra, 33 Cal.4th at p. 1051.)
However, even if we find no abuse of discretion on the record before the trial court, reversal would be required if the defendant can show that the failure to bifurcate"' "actually resulted in 'gross unfairness' amounting to a denial of due process." '" (Franklin, supra, 248 Cal.App.4th at p. 953.) We find no gross unfairness or violation of due process here, for the reasons we have stated at II.D.2, ante.
And finally, we note that Hernandez's arguments about Assembly Bill No. 333 and the Legislature's intent in enacting the statute do not bear on the trial court's earlier denial of bifurcation. Our determination as to whether the trial court erred in denying bifurcation must be based "on the record as it stood at the time of the ruling." (Franklin, supra, 248 Cal.App.4th at p. 952.) The trial court, at the time it made its ruling, did not have the benefit of the Legislature's new public policy in favor of bifurcation or its express findings in support of that policy judgment.
Accordingly, we find no merit in Hernandez's contention that the trial court erred by denying the bifurcation.
F. Cumulative Error
Lastly, Hernandez argues that the cumulative effect of all the alleged errors in his case require reversal of his convictions. "In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483.) Yet here, we have found no error, though we have assumed the existence of several errors and have concluded that they are individually harmless-defense counsel's failure to object to the prosecutor's misconduct during argument when describing Ayala's possession of weapons, the trial court's exclusion of evidence that Ayala was in possession of two knives the day of the shooting, and the prosecutor's misconduct when questioning Carlos.
We conclude that even if we cumulate these assumed errors, the cumulative impact is still harmless under any standard. Even if the prosecutor's comments about whether Ayala visibly possessed weapons are interpreted as implying that Ayala had no weapons on his person, those references were fleeting. Moreover, the probative value of evidence relating to Ayala's possession of knives would have been largely cumulative of other evidence of Ayala's propensity for violence and his role as the initial aggressor. Likewise, the prosecutor's challenged questions to Carlos were brief and not particularly inflammatory. Thus, even assuming these errors, Hernandez is not entitled to a reversal of his convictions based on their cumulative impact.
III. DISPOSITION
The judgment is reversed and the true findings on the gang allegations under section 186.22 as to counts 2 and 3 are vacated. The matter is remanded with directions to permit the prosecution to elect whether to retry the gang allegations as to these two counts. If the district attorney elects not to retry defendant on the gang enhancement allegations, or at the conclusion of any retrial, the trial court is directed to resentence defendant.
WE CONCUR: GROVER, ACTING P.J., DANNER, J.