Opinion
F069894
10-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO ENRIQUE HERRERA, Defendant and Appellant.
Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF143293A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark and Charles R. Brehmer, Judges. Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino, and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Armando Enrique Herrera was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a); count 1), a lesser included offense of the charged offense of first degree murder, personally discharging a firearm at an occupied motor vehicle (§ 246; count 2), and carrying a loaded firearm in public while actively participating in a criminal street gang (§ 25850, subd. (c)(3); count 3). With respect to counts 1 and 2, the jury also found true enhancements alleging defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)), and he had committed the underlying offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)).
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
Defendant was sentenced to state prison as follows: 15 years to life plus 25 years to life for the firearm enhancement on count 1; 15 years to life plus 25 years to life for the firearm enhancement on count 2, stayed pursuant to section 654; and a determinate term of three years on count 3, stayed pursuant to section 654. The trial court declined to impose a sentence on the gang enhancement attached to count 1, reasoning the 15-year minimum parole eligibility date applicable under the enhancement (§ 186.22, subd. (b)(5)) was moot in light of defendant's sentence on this count. With respect to the gang enhancement attached to count 2, defendant's sentence on the underlying conviction was modified to reflect a term of 15 years to life pursuant to the alternative penalty provision set forth under section 186.22, subdivision (b)(4)(B).
On appeal, defendant raises the following claims: (1) there is insufficient evidence to support his convictions; (2) the trial court erred in denying his motion to bifurcate the gang enhancements; (3) the prosecutor's gang expert related testimonial hearsay; (4) the prosecutor failed to show the existence of a unified criminal street gang pursuant to our Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty); (5) the trial court abused its discretion in admitting the gang evidence under Evidence Code section 352; (6) defendant's conviction on count 3 must be reversed because he acted alone in the commission of the offense; (7) defendant seeks appellate review of police officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether any relevant documents were erroneously withheld from disclosure by the trial court; and (8) the prejudice from these cumulative errors necessitates reversal of his convictions.
We conclude the gang enhancement on count 2 must be reversed because the gang expert related hearsay and testimonial hearsay. We are compelled to conclude the erroneous admission of this evidence was prejudicial. We further conclude defendant's conviction on count 3 must be reduced to a lesser included offense because the evidence adduced at trial tended to show defendant acted alone in committing the offense. We otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
Prosecution's Case
On June 5, 2005, at about 5:00 p.m., Detective Pete Mendoza responded to a report of gunfire at the Sno Fun shave ice drive-in in Delano. When he arrived at the scene, he found Ebelio Avila slumped over in the driver's seat of his pickup truck, deceased. Avila had suffered gunshot wounds to his face and head.
Eyewitnesses
Thelma Ontiveros
Thelma Ontiveros was parked next to the driveway entrance of the Sno Fun. From her side-view mirror, she saw a man approach the passenger's side door of Avila's pickup holding a black semiautomatic handgun. While Ontiveros could not hear the conversation, she noted the men appeared to be arguing for approximately 10 minutes. When the vehicle in front of her left, she drove into an alleyway nearby, called 911, and continued to observe the confrontation.
Ontiveros saw the suspect lean against the pickup, extend his right arm inside, and shoot two or three times. The suspect stopped, began slowly walking away, returned, and began shooting again.
Ontiveros gave a general description of the suspect from which a police composite sketch was drawn. She described the suspect as a 17- to 20-year-old Hispanic male, light complected with a near-shaven head, wide nose, full lips, five feet eight inches in height, and "a little heavy"—at least 190 pounds. Ontiveros was unable to identify the shooter in a 2010 photo lineup.
Enrique Mendoza
Enrique Mendoza was 13 years old at the time of the shooting. He was in a car with his mother Maria Mendoza, driving by the Sno Fun drive-in when he heard multiple popping sounds, like fireworks. He saw a man shooting a gun into a white pickup. He then heard a second series of gunshots. Enrique told police the shooter was about five feet three inches tall with a "round head."
Maria Mendoza
Maria Mendoza heard multiple gunshots in two intervals. She saw the suspect from the back as he walked away. Maria described him as short and stocky with "dark hair and [a] round head." In a 2010 photo lineup, Maria identified two people with round heads. One of them was defendant.
Adalberto Chavez
Adalberto Chavez was 15 years old at the time of the shooting. He was with his cousin Jose Martinez when he heard gunshots in two intervals. He saw a man shooting into Avila's pickup. The shooter was standing next to the passenger's side door with his right hand extended inside the pickup. The shooter may have pushed off the passenger's door with his left hand because Chavez saw the suspect's left arm extending out before fleeing. He described the suspect as "short," around five feet six inches, and heavy-set or "bigger-bodied." In a 2010 photo lineup, Chavez identified defendant as the shooter based on defendant's body weight.
Jose Martinez
Jose Martinez was 10 years old at the time of the shooting. He told police the shooter was a Hispanic adult male with a shaved head. In a 2010 photo lineup, Martinez identified defendant as the shooter. At trial, he was unable to remember significant details about the shooting.
The Investigation
At the crime scene, Detective Gerald Lewis noticed Avila's pickup truck appeared to have been recently washed. Jessica Flores, Avila's fiancée, testified Avila cleaned his pickup almost daily. According to Flores, on the morning Avila was shot, he washed and detailed his truck with ArmorAll.
Criminalist Nicole Townsend processed the pickup for latent prints. A palm print was lifted from the passenger's side rear door panel beneath the window. In 2005, the Automated Fingerprint Identification System (AFIS) was not capable of running palm prints for possible matches. In 2010, however, Townsend was able to run the latent palm print in the AFIS database. Among other possible candidates, the print matched defendant's palm print.
Townsend then independently compared the latent print with defendant's left palm print from his local arrest record and from his prints taken in court at trial. She opined the latent palm print on Avila's pickup truck belonged to defendant. Criminalist Jacqueline Moore also independently compared the latent palm print found on Avila's truck with defendant's prints. She concluded the left palm print lifted at the crime scene belonged to defendant.
Gang Evidence
Detective Michael Strand testified as a gang expert for the prosecution at trial. He had been a police officer with the City of Delano for four years and a detective for six months. During his career as a police officer, he focused primarily on gang suppression, intelligence gathering, and investigating violent feuds between the Norteño and Sureño criminal street gangs. He developed over 3,000 gang contacts during his career.
Strand opined defendant committed the instant offenses for the benefit of the Delano area Norteños, also known as Delano Norte. The evidence adduced at trial showed defendant claimed membership to West Side Delano Norte, a subset of Delano Norte, and the overarching Delano Norte gang. The evidence also showed Avila claimed membership to the Sureños, a rival criminal street gang.
Strand explained the territorial dividing line between the Norteños and Sureños is the area between Delano and McFarland. Delano is predominately Norteño gang territory while McFarland is 100 percent Sureño territory. The Sno Fun is in Norteño territory.
Officer Donald Flores testified he was at the scene of the shooting in the instant case on June 5 and the next day on June 6, 2005. He noted that sometime between June 5th and 6th, a building wall in the alley near the Sno Fun had been spray painted with blue graffiti. He described the graffiti as southern (Sureño) in nature. The message stated, "187 on all Busters," a derogatory term for Norteños. It covered the ground level of the wall all the way up to the top, about 15 feet high. Officer Flores opined the graffiti directed retribution against Norteño gang members for the homicide of Avila.
Strand surmised the graffiti was a message to other gang members. He opined the graffiti was a sign the Sureños were angry about Avila's murder, and the message served as a warning to Norteños that the gang would take retribution against them.
The Delano Norte Criminal Street Gang
According to Strand, Delano Norte comprises multiple subsets or cliques, including West Side Delano, East Side Delano, North Side Delano, Varrio Delano Locos, 21st Street, Youth Gone Wild, Way of Life, and Young Bucks. Any member of a subset could call himself a member of Delano Norte, but not of the "Northern Structure." The subsets get along with one another.
Strand testified the primary activities of Delano Norte include murder, attempted murder, vehicle theft, robbery, assault with a deadly weapon, narcotics sales, drive-by shootings, arson, witness intimidation, grand theft, burglary, rape, kidnapping, carjacking, vandalism, firearm-related offenses, and criminal threats. To show Delano Norte has committed a pattern of criminal gang activity, Strand adduced evidence of three predicate offenses.
Defendant's Active Gang Status
Detective Strand opined defendant was a Delano Norte criminal street gang member based on prior admissions, gang-related tattoos, the fact he has been previously documented wearing the color red, and his association with other documented Norteños. His opinion was based on police reports and the testimony of various witnesses.
Officer Vincent Lopez testified he was with another officer who had detained defendant on June 13, 2004, for driving without a license. When asked if he was a member of a gang, defendant replied affirmatively and claimed membership to the West Side Norteños. Officer Lopez observed a four-dot tattoo on defendant's left lower elbow. Strand explained a four-dot tattoo on a Norteño's elbow or hand is a sign of earned membership by "putting in work" on behalf of the gang, such as by committing shootings or stabbings. During this incident, defendant was also documented in the company of Everardo Contreras, Jr., and Ruben Garza, who are both Norteños.
Officer Monty Lewis testified he had detained defendant on December 2, 2007, at a police checkpoint. Defendant was a passenger in a car with four individuals. He yelled, "'Delano Norte,'" "'Fuck the police,'" and "'Fuck the Bulldogs,'" a known Fresno gang. Defendant was arrested for resisting arrest, public intoxication, and giving false information. Throughout the arrest, he continued yelling, "'Delano Norte.'" At the police station, defendant shouted, "'Fuck those mutts. Delano Norte. Motherfucker. Fuck the Bulldogs.'" Strand explained the Bulldogs and the Norteños are rivals.
Defendant's girlfriend, Mona Melendez, had known him for over 10 years. During police questioning, Melendez told Detective Campos defendant was a Norteño gang member. She also stated defendant "'[a]lways had two friends with him,'" whom she identified as Victor Garcia and Everardo Hernandez. According to Melendez, when they called, defendant "would just leave us. They were the most important thing" to him. Strand opined Victor Garcia was a northern gang member.
Opinion the Crime was Committed for the Benefit of a Criminal Street Gang
Based on a hypothetical mirroring the facts of the instant case, Strand opined the instant crime was committed for the benefit of the Norteño gang in Delano (Delano Norte). In Delano, the rivalry between the Norteños and the Sureños often manifests in violent crimes. By eliminating a rival gang member, a Norteño elevates his status as well as the status of the gang. A shooting similar to the instant case would benefit the Norteños by lowering the status of the Sureños and by instilling fear into the community.
Avila's Active Gang Status
Detective Strand opined Avila was an active Sureño gang member based upon statements by Avila's family and friends, his past confrontations with Norteños, booking admissions and police reports, his display of the color blue and his association with other documented Sureños, and because graffiti was spray painted in an alley calling for the murder of "all Busters" after Avila's murder.
Jessica Flores, Avila's fiancée, testified Avila was known to associate with criminal street gangs and he was regularly harassed by Norteños. She described several prior incidents wherein she and Avila were encircled at a fast food restaurant and followed at a shopping mall. The night before he was killed, Avila's tire was slashed at a Blockbuster parking lot. Avila carried a gun for protection against Norteños. He told Flores the Norteños were trying to intimidate him into leaving town but he "didn't want to leave."
Jose Camacho and Avila were friends who had met in high school, sometime between 1997 and 2001. Camacho associated with Sureños. While Camacho did not know if Avila was a Sureño, he stated Avila had many troubles with Norteños. In 1999, Camacho and Avila were walking home after school when a vehicle approached them. Someone yelled, "Delano Norte" and fired at them. Norteños confronted Avila in high school for "wearing a lot of blue," and asked him if he was a Sureño. In 2000, Avila shot at Norteño gang member Victor Garcia in retaliation for a shooting perpetrated by Garcia against Avila. In 2010, Camacho circled defendant's picture in a yearbook as an example of another person with whom Avila had troubles in high school. Avila had arguments with defendant, and defendant warned Avila to "watch his back."
Defense's Case
Defendant's girlfriend, Mona Melendez, testified she and defendant attended a baby shower for their first child on the day of the shooting. As proof, she presented the rental application for the patio where the shower was held. She claimed defendant was with her the entire time, from the early afternoon until the evening. Melendez did not remember if her mother was at her shower. She found no pictures taken from the baby shower.
Jennifer Rios, Melendez's cousin, testified she arrived at the baby shower before 4:00 p.m. and stayed until 8:00 p.m. Rios claimed she never saw defendant leave the shower. She also testified she never saw any photos from the baby shower. She admitted previously telling police she saw Melendez taking photos, "'We're a big family and we are always taking pictures of everything to remember everything by.'"
Rebuttal
Lorraine Melendez testified she had attended the June 2005 baby shower for her daughter. Lorraine had observed people taking pictures. The distance between the location of the baby shower and the Sno Fun shave ice drive-in is seven miles with a driving time of about eight minutes.
DISCUSSION
I. Sufficiency of the Evidence Supporting Defendant's Convictions
Defendant challenges the sufficiency of the evidence showing he was the perpetrator of the shooting. He contends (1) his conviction was based on the presence of a palm print on the victim's truck matching his palm print, which could have been left days prior to the shooting; (2) the "true" eyewitness to the shooting failed to identify him as the shooter; and (3) the gang evidence failed to show he was the shooter. The Attorney General replies substantial evidence supports the conclusion defendant was the shooter. We agree with the Attorney General.
Because defendant challenges the sufficiency of the evidence supporting count 3 in part III, post, we interpret his argument to challenge all other counts.
A. Standard of Review
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) In reviewing a record for substantial evidence, we do not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these functions are strictly reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) Our inquiry is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34.)
We reject evidence accepted by the trier of fact only when it is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear there is no hypothesis whatsoever upon which there is substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
B. Legal Analysis
Defendant challenges the sufficiency of the evidence supporting his convictions. He specifically contends there was insufficient evidence to show he was the shooter. He complains he was convicted based solely on palm print evidence, the eyewitnesses failed to identify him as the shooter, and the gang evidence did not show he was the shooter. We find defendant's contentions unpersuasive.
1. The Palm Print Evidence
Defendant essentially contends his case is based solely on palm print evidence. He analogizes the instant case to a line of so-called "fingerprint-only cases."
His reliance on these cases is misplaced. (People v. Redmond (1969) 71 Cal.2d 745, 756 [fingerprint evidence could not be considered substantially incriminating in burglary and assault case where victim was unable to identify defendant as her assailant and defendant was lawfully in victim's home the night before crime had occurred]; People v. Flores (1943) 58 Cal.App.2d 764, 769-770 [evidence of defendant's fingerprint inside stolen vehicle proved he was inside the vehicle but did not prove beyond a reasonable doubt he had stolen it]; Birt v. Superior Court (1973) 34 Cal.App.3d 934, 937-938 [evidence female defendant's fingerprint was found inside a rental vehicle used in a burglary was insufficient to sustain burglary charge against her where victim testified the perpetrators were two men]; People v. Johnson (1984) 158 Cal.App.3d 850, 854 [single thumbprint on one of multiple bottles containing illicit substance found in a home where nine people were living was insufficient to show defendant was in possession of the bottles].)
Here, the presence of defendant's palm print near the passenger's side door of Avila's truck is substantially incriminating. Ontiveros, Chavez, and Martinez reported seeing the shooter leaning on the truck next to the passenger's side door. The latent palm print was found in this area: on the passenger's side door of the truck, underneath the rear window door.
Ontiveros had previously told detectives she did not see the shooter lean against or touch Avila's truck, however, she later testified she had seen the shooter lean his left arm against the pickup. Chavez testified the shooter appeared to have pushed off from the truck. When he was interviewed just after the shooting, Martinez told Detective Lewis he saw the shooter lean up against the pickup with his left hand as he fired the gun a second time. In a 2010 interview, Martinez indicated he saw the shooter lean against the passenger side of the pickup. Based on the testimony of these witnesses, the jury could have reasonably inferred defendant touched the truck during the shooting.
Defendant asserts there are alternative exculpatory explanations for the presence of his palm print on Avila's truck. He suggests there is some evidence Avila may not have washed the passenger's side of his truck on the morning of the shooting, and it is possible he touched Avila's truck on a prior occasion. We reject defendant's attempts to reargue the evidence on appeal.
Avila's fiancée testified Avila cleaned his truck almost daily. On the morning he was shot, she observed Avila wash and shine his truck. When Detective Lewis responded to the crime scene, he noted Avila's truck appeared to have been recently washed. Thus, there was circumstantial evidence to support the conclusion the area where defendant's palm print was found had been washed the morning of the shooting.
Insofar as defendant suggests he may have touched Avila's truck when Avila visited the Jack-In-The-Box fast food restaurant where defendant worked, there is no evidence to support his assertion. Indeed, Flores testified she and Avila had not visited Jack-In-The-Box the day of or the day before Avila was killed.
Even assuming the record provided some support for defendant's claim, the jury apparently discredited any exculpatory explanations for the presence of defendant's palm print on Avila's truck in finding defendant guilty. Not only are we prohibited from reweighing the evidence presented below (People v. Culver, supra, 10 Cal.3d at p. 548), we are required to resolve all conflicting evidence in favor of the judgment (People v. Campbell (1994) 25 Cal.App.4th 402, 408). We find defendant's alternative explanations wholly unpersuasive.
2. Eyewitness Identifications
Defendant claims the "true" witness to the shooting failed to identify him as the shooter. He argues Ontiveros, the witness with the best view of the shooter, did not identify him as the shooter in a photo lineup. He further contends the other witnesses' identifications were tentative, possibly coerced, or based on guesses.
Defendant specifically claims Ontiveros was unable to identify defendant in a 2010 photo lineup as the shooter even though a composite sketch was drawn based on her description of the shooter; Adalberto Chavez identified defendant based on the fact defendant was the heaviest subject in the photographic lineup; Enrique Mendoza was not wearing glasses when he observed the shooting, although he needed them; Maria Mendoza selected defendant as one of two possible suspects based on the shape of defendant's head; and Martinez identified defendant as the shooter randomly because he felt pressured by detectives to pick someone. He further contends the witnesses' identifications lack credibility given their descriptions of the shooter's height compared to defendant's actual height.
Defendant does not argue the lineup procedures were unduly suggestive.
Although Ontiveros's inability to identify the shooter in a photographic lineup may be attributed to the fact the lineup was conducted five years after the shooting had occurred, we need not speculate as to why she was unable to make an identification. The witnesses were thoroughly and vigorously cross-examined at defendant's trial. In closing argument, defendant's trial counsel emphasized the flaws in the witnesses' identifications, including the inconsistencies between their prior statements to police and their testimony at trial. The jury was instructed to consider various factors in determining the credibility of the witnesses and the weight their identifications should be given, including how well the witness could see the perpetrator, how much time had passed between the event and the identification, whether the witness had ever failed to identify defendant, and how certain the witness was when he or she made the identification. Nothing in the record shows the jury failed to consider these factors in reaching its verdict.
The jury heard and considered the evidence defendant claims undermines the witnesses' identifications but nonetheless found them credible. The credibility of the witnesses and the weight of their identifications was ultimately a matter for the jury to decide. (People v. Ennis (2010) 190 Cal.App.4th 721, 729.) We find no basis to reject the witnesses' testimony on appeal.
3. Gang Evidence
Finally, defendant contends the gang evidence failed to show defendant shot Avila. Defendant asserts "there was nothing specific about the shooting to designate it as a gang-related hit." He further contends there was no evidence Avila was targeted by the Norteños or by defendant.
We initially observe the gang evidence was admitted to show motive, rather than identity. Further, although defendant suggests the gang evidence failed to show the shooting was gang-related, the record refutes his assertion.
Defendant and Avila were shown to be members of rival criminal street gangs. Defendant claimed membership to West Side Delano, a subset of Delano Norte, and the overarching Delano Norte criminal street gang. Avila claimed membership to the Sureños. Avila had been confronted by the Delano-area Norteños on multiple prior occasions. The most recent incident occurred the night before he was killed.
In addition to Avila's prior confrontations with Norteño gang members, the circumstances of the shooting suggest the crime was gang related. Avila was shot multiple times, at close range, in Norteño gang territory as he sat in his truck. According to Ontiveros, an armed male approached Avila and a verbal argument ensued. The man lowered and raised and lowered his gun until he eventually fired a series of gunshots at Avila. As the shooter began to walk away, he returned, fired several more shots, and then fled. Following the shooting, a 15-foot high writing, "187 on all Busters," was spray painted in blue paint on a wall near the Sno Fun. In our view, this evidence amply supports the conclusion the shooting was gang related, and possibly even a gang hit because of the manner in which Avila was killed.
We conclude the record contains substantial evidence to support defendant's convictions. The presence of the palm print matching defendant's palm print on Avila's truck and the witnesses' identifications and descriptions of the shooter amply support the conclusion defendant was the perpetrator of the shooting.
II. Bifurcation of the Gang Allegations
Defendant argues the trial court erred in denying his motion to bifurcate the gang enhancements and allegation. Below, defense counsel objected to the introduction of any gang evidence because it was "highly-inflammatory information." For the first time on appeal, defendant contends his motion should also have been granted because there was nothing about the shooting to suggest it was gang related. His argument is without merit.
A. Background
Defendant's trial counsel filed a pretrial motion to bifurcate the gang enhancements and allegation from the charged offenses. Counsel argued the gang evidence was voluminous and "presenting the evidence will distract from the real issues of the underlying case, prejudice the jury against defendant, and result in an unfair trial."
At a pretrial hearing, the court issued a tentative ruling denying the motion, finding the gang evidence cross-admissible to the issue of the motive. The court explained the evidence was also directly relevant to the charged offense of carrying a loaded firearm in public while actively participating in a criminal street gang (§ 25850, subd. (c)(3)), as well as the intent element pertaining to the gang enhancement (§ 186.22, subd. (b)), and the special allegation (§ 190.2, subd. (a)(22)). Defense counsel objected, claiming the gang evidence was "highly-inflammatory information." At the conclusion of defendant's trial, the court instructed the jury that the gang evidence was to be considered for the limited purpose of intent or motive. (CALCRIM No. 1401.)
B. Legal Principles
Section 1044 gives a trial court discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) Evidence of gang membership is admissible if it is relevant to a material issue in the case, it is not more prejudicial than probative, and it is not cumulative. (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Evidence of a defendant's gang affiliation may be admissible to prove motive, intent, modus operandi, or other issues pertinent to guilt in relation to the underlying offense, other than the defendant's criminal disposition. (Id. at p. 224.) "To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.) We review the trial court's decision for an abuse of discretion. (People v. Rodriguez (2011) 193 Cal.App.4th 360, 363.)
C. Legal Analysis
Defendant contends nothing about the shooting inherently suggests it was a gang-related crime. Although defendant did not utter any gang slurs or display gang colors or signs, the jury could have reasonably concluded the shooting was gang related.
Avila was shown to be an active Sureño gang member who had a longstanding rivalry with the Delano-area Norteños. Defendant claimed membership to Delano Norte and West Side Delano. The evidence showed Avila was targeted by Delano Norte gang members on prior occasions, and on at least one occasion, he shot at a Norteño gang member to whom defendant was loyal. The evidence also showed defendant and Avila were rivals in high school and defendant had previously told Avila to "watch his back." This evidence bears directly on the issue of motive. Thus, any inference of prejudice from the admission of the gang evidence was dispelled. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Defendant complains there is no evidence Avila and defendant had any confrontations, gang related or otherwise, after high school. This merely affected the weight of the evidence, which was a matter for the jury to consider. (People v. Ellis (1922) 188 Cal. 682, 698.) In a related argument, he contends the gang evidence failed to show he was the shooter, rather than any other Norteño gang member in the area. However, the gang evidence was admitted to show motive, not identity.
Defendant further contends the jury heard evidence of virtually all of his criminal history, including the fact he had 11 prior offense (police) reports. With the exception of defendant's conviction for resisting an executive officer (§ 69), the trial court had previously ruled reference to defendant's prior criminal record would be excluded. At trial, Detective Strand adduced evidence of 11 prior contacts defendant had with police. The record bears no evidence the jury heard evidence of defendant's criminal convictions.
Defendant also claims the gang predicates were unrelated to Avila's murder and, as a result, were irrelevant and inadmissible. The gang predicates defendant is referring to are the prior convictions of Arturo Villalobos, Christopher Fragoso, and Andres Lara, who Strand opined were members of Delano Norte or the West Side Delano Norte subset. This evidence was relevant to show Delano Norte was a criminal street gang within the meaning of section 186.22, subdivision (f). Because the trial court found the gang evidence admissible to the issue of motive, nothing precluded the People from introducing this evidence at defendant's trial. Indeed, as defendant himself concedes, this evidence was necessary to prove defendant acted to benefit a criminal street gang.
Finally, defendant suggests this was a close case, and as a result, he was prejudiced by the admission of gang evidence. Although we are not persuaded this was a particularly close case, to the extent the evidence supporting the gang enhancements and allegation was admissible to prove the underlying charges, any inference of prejudice was dispelled. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
We conclude the trial court did not abuse its discretion in denying defendant's motion to bifurcate the gang allegations. The trial court exercised its discretion appropriately in denying defendant's motion, finding the gang evidence was relevant to the motive for Avila's murder.
At oral argument, defendant's appellate counsel asserted defendant's motion to bifurcate should have been granted in light of the gang evidence admitted that was based on hearsay and testimonial hearsay. Although some of the gang evidence submitted by the prosecutor is now inadmissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), as we explain in part III, post, it was still admissible at the time of defendant's trial, and the trial court was following People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), the law applicable at that time. We do not find error in the trial court's ruling on defendant's bifurcation motion.
III. Testimonial Hearsay
Defendant contends the admission of certain hearsay testimony violated state law and, in some instances, federal law. He asserts the admission of testimonial hearsay violated his Sixth Amendment right to confrontation (see Crawford v. Washington (2004) 541 U.S. 36 (Crawford)), and further, the cumulative effect of hearsay admitted in violation of federal and state law necessitates reversal of his convictions.
The record shows the gang expert relied on and related as true case-specific hearsay not independently proven by competent evidence. Further, some of this hearsay evidence was testimonial under Crawford, supra, 541 U.S. 36. As we explain below, we are constrained to conclude the cumulative effect of the challenged testimony was prejudicial under Chapman v. California (1967) 386 U.S. 18, 22-24 (Chapman). We therefore strike the jury's true findings on the gang enhancement attached to count 2.
A. Background
Prior to trial, defendant filed a motion to bifurcate the gang issues. In his motion, defendant asserted his Sixth Amendment right to confrontation under Crawford, supra, 541 U.S. 36 prohibited the admission of testimonial hearsay statements unless the declarant was available to testify, or defendant had a prior opportunity to cross-examine the witness. He also argued the foundation of an expert witness's opinion, including the prosecutor's gang expert, cannot be based upon "hearsay, speculation, or the mere conclusions of other experts." Defendant did not otherwise raise this issue in a hearing on his motion.
Throughout trial, however, defense counsel interposed objections to witness testimony on hearsay and confrontation clause grounds. The court overruled these objections. The court also instructed the jury the witnesses were permitted to offer hearsay testimony because the expert would subsequently rely on this testimony for the basis of his opinions. Before Detective Strand testified, the jury was also admonished that an expert is permitted to rely on certain hearsay matters that may only be considered by the jury in evaluating the basis for the expert's opinion and not for the truth of the matter asserted.
B. Forfeiture
The Attorney General contends defendant forfeited some of his challenges to the gang expert's use of testimonial hearsay because he did not object to every statement he now challenges on appeal, and the objections he did make were insufficient. In a supplemental brief, defendant alternatively contends his trial counsel was ineffective for failing to object. We agree with defendant's assertion that any further objections to the expert's testimony on hearsay or confrontation clause grounds would have been futile. As a result, we need not address his ineffective assistance of counsel claim.
At the time of defendant's trial, Gardeley, supra, 14 Cal.4th 605 was controlling authority. In Gardeley, our Supreme Court held "[c]onsistent with [the] well-settled principles" concerning expert witness testimony, a detective "could testify as an expert witness and could reveal the information on which he had relied in forming his expert opinion, including hearsay." (Id. at p. 619.) The court reasoned, "a witness's on-the- record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Ibid.) In other words, such evidence went to the basis of the expert's opinion rather than the truth of the matter asserted.
Our Supreme Court disapproved this not-for-the-truth rationale in Sanchez, supra, 63 Cal.4th 665, holding, "this paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.) The court then adopted the following rule: "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.)
Here, defendant lodged hearsay and confrontation clause objections to some of the evidence he now challenges, but his objections were overruled by the trial court. The limiting instructions given by the trial court demonstrate the court was applying Gardeley, which it was bound to do at the time of defendant's trial. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) These admonitions show the court permitted the witnesses to relate hearsay statements because the expert would use those statements as basis evidence for his opinion. In light of this evidence, we are persuaded any further objections to the testimony defendant challenges on appeal would have been overruled. We will therefore reach the merits of defendant's claims.
C. Legal Principles
According to Sanchez, "If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686.) Thus, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Id. at p. 680.)
Testimonial statements are those "made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Sanchez, supra, 63 Cal.4th at p. 689.) To be considered testimonial, "the statement must be made with some degree of formality or solemnity." (People v. Dungo (2012) 55 Cal.4th 608, 619.) In contrast, nontestimonial statements are statements whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at p. 689, see id. at pp. 691-694.) Where a gang expert relies upon, and relates as true, a testimonial statement, "the fact asserted as true [has] to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685.)
D. Legal Analysis
Defendant contends the following evidence was based on testimonial and nontestimonial hearsay: (1) Flores's testimony about statements made by Avila; (2) Camacho's testimony about statements made by Avila; (3) Detective Campos's testimony regarding prior statements made by Camacho; (3) jail admissions, police reports, and field identification cards Detective Strand relied on in opining defendant was an active Delano Norte gang member; (4) defendant's tattoos and the background testimony about Delano Norte; and, (5) details from police reports about the predicate offenses.
1. The Testimony of Flores , Camacho , and Detective Campos
(a) Jessica Flores's Testimony
At trial, Avila's fiancée testified as follows:
"[PROSECUTOR:] Did [Avila] ever tell you why [the Norteños] were following [him]?
"[DEFENSE COUNSEL]: Objection; hearsay.
"[PROSECUTOR]: It will go to expert opinion, your Honor. And it is not testimony."
The trial court admonished the jury as follows:
"THE COURT: Okay. Ladies and gentlemen, there may be some opinions offered by this witness and other witnesses in regard to hearsay information. [¶] In formulating their opinions, an expert is entitled to rely on certain hearsay matters. These hearsay matters are only to be considered by you in evaluating the basis of the expert's opinion and are not to be considered for the truth of the hearsay matters themselves. [¶] Go ahead. You may answer. [¶] Objection is overruled.
"[PROSECUTOR:] Did ... Avila ever tell you why these people would follow him?
"[FLORES:] He didn't specifically say why. I just know it really bothered him."
Later, the prosecutor asked Flores the following question:
"[PROSECUTOR:] Did ... Avila ever tell you why all these Norteños had issues with him?
"[DEFENSE COUNSEL]: Objection; calls for hearsay.
"THE COURT: Mr. [Prosecutor]?
"[PROSECUTOR]: It will, I believe, be relied upon by the expert in opinions he will be offering later."
The court admonished the jury again:
"THE COURT: All right. Ladies and gentlemen, I previously gave you an admonition in regard to hearsay and that it is to be not considered for the truth by you, but can only be utilized in regard to an expert. [¶] I'm not going to read it to you again right now. I'll read it to you again later. [¶] You may answer. [¶] ... [¶]
"[PROSECUTOR]: Did ... Avila ever tell you why all of these Norteños harassed him?
"[FLORES:] He said because he wasn't scared of them. He—he didn't show them he was weak. So—so they were scared of him. So they were—follow him and harass him even more, trying to push him out of town. But he said he was born and raised in that town and he didn't want to leave."
As can be seen, the trial court permitted Flores to relate statements made by Avila because the gang expert would subsequently rely on those statements as basis evidence in his testimony. At the time of defendant's trial, an expert was permitted to rely on hearsay and to explain he was relying on hearsay because such testimony was not admitted for the truth of the matter asserted but as basis evidence for the expert's opinion. (Sanchez, supra, 63 Cal.4th at p. 683; Gardeley, supra, 14 Cal.4th at p. 619.) Sanchez rejected this rationale, holding, "an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Sanchez, supra, at p. 679.)
Here, although some statements by Flores were about events she personally perceived, including several prior occasions wherein Norteño gang members followed and harassed her and Avila, some of her testimony was based on hearsay, including statements Avila made to Flores about why the Norteños were harassing him. Thus, the expert relied on hearsay statements not proven by independent competent evidence or shown to come within a hearsay exception.
The Attorney General contends Strand's reliance on these facts did not violate defendant's right to confrontation because Flores testified at defendant's trial. Even so, Flores's statements about what Avila told her appear to be hearsay under state law. Neither the prosecutor below nor the Attorney General on appeal contends they come within an exception. (People v. Livaditis (1992) 2 Cal.4th 759, 778 [the proponent of hearsay has the burden to alert the trial court to the exception or ground for admissibility being relied upon].)
The Attorney General suggests the jury did not rely on these statements for their truth because the jury was expressly instructed Flores's statements may only be considered for the basis of the expert's opinion. Sanchez rejected an identical limiting instruction, reasoning: "hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth." (Sanchez, supra, 63 Cal.4th at p. 684.) This is because "an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.) It simply cannot logically be asserted that the jury here did not rely on hearsay statements related by Flores for the truth of the matter asserted.
(b) Camacho's Testimony
Defendant also challenges hearsay statements related by Camacho. At trial, Camacho testified as follows:
"[PROSECUTOR:] Well, how did you know that the person you said ... Avila had trouble with was the person in the picture [defendant]?
"[CAMACHO:] After a while, at—on the yearbook, he—we were going to the pictures and everything and he will point out this person.
"[DEFENSE COUNSEL]: I'm going to object as hearsay.
"THE COURT: That's not hearsay. [¶] Overruled.
"[PROSECUTOR:] ... Avila would point out the people he had trouble with?
"[CAMACHO:] Uh-huh. Yes.
"[PROSECUTOR:] And the person you circled in the exhibit that's on the display now was one of those people he pointed out?
"[CAMACHO:] Yes.
"[PROSECUTOR:] Did he tell you what kind of issues he had with this person?
"[CAMACHO:] Just arguments and, um, telling him that—that—to watch his back."
The Attorney General argues there is no confrontation clause violation because Camacho was subject to cross-examination at defendant's trial. Although Camacho's testimony did not violate defendant's right to confrontation, the statements he related appear to be hearsay. Camacho stated defendant told Avila to "watch his back," however, Camacho was not present when defendant purportedly made this statement.
To the extent Camacho also described how Avila identified defendant in his yearbook as an individual with whom he had troubles, the Attorney General does not explain how this conduct was not hearsay. The act of pointing may qualify as a substitute for verbal expression and thus constitute hearsay if offered for the truth of the matter asserted, i.e., that Avila had problems with defendant. Alternatively, the act may be admitted not for the truth of the matter asserted, but to explain some other conduct. For purposes of assessing prejudice, which we discuss below, we will assume without deciding that Camacho's testimony about Avila pointing out defendant's picture was hearsay.
(c) Detective Campos's Testimony
Defendant also challenges Detective Campos's testimony. Detective Campos testified Camacho told him during a police interview Avila was shot based on his gang affiliation:
"[PROSECUTOR:] Okay. What did [Camacho] say?
"[DEFENSE COUNSEL]: Objection; lack of foundation; lack of personal knowledge; speculation.
"THE COURT: Overruled. [¶] You can answer.
"[DETECTIVE CAMPOS:] I'm sorry. Repeat the question.
"[PROSECUTOR:] What did ... Camacho—how did ... Camacho respond when you asked him why he believed the victim was shot?
"[DETECTIVE CAMPOS:] Oh, that—he told me that the victim was climbing up in status."
We can discern no confrontation clause or hearsay violation from Campos's testimony. Defense counsel asked Camacho whether he told police Avila was shot because he was reaching a high status in the gang. Camacho stated, "I never told a[n] officer that." Camacho's statement to Detective Campos appears to be admissible as a prior inconsistent statement. (Evid. Code, § 1235.)
2. Evidence of Defendant's Status as an Active Gang Member
Detective Strand opined defendant was a Norteño gang member based on police reports, field identification reports, the testimony of witnesses who testified at trial, defendant's gang-related tattoos, and defendant's documented association with other Norteño gang members. We conclude some of this evidence constituted hearsay under state law and some of this evidence was testimonial hearsay for confrontation clause purposes.
(a) Police Reports
In opining defendant was an active gang member, Detective Strand adduced evidence of police contacts with defendant documented in police reports.
Two of the contacts Strand described were based on the testimony of Officers Lopez and Lewis. This includes the December 2, 2007, incident where defendant was arrested at a DUI checkpoint, and a June 13, 2004, incident where defendant was arrested with a prohibited weapon. Both Lopez and Lewis had personal knowledge of the events they described and were subject to cross-examination at defendant's trial. Further, the statements by defendant they related were admissible as party admissions (Evid. Code, § 1200). We find no prejudicial error with respect to Strand's discussion of these contacts. (Sanchez, supra, 63 Cal.4th at p. 686 [an expert cannot 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].)
Four of the contacts described by Strand were, however, based on the observations of officers who did not testify at defendant's trial. To the extent Strand relied on hearsay in describing these contacts, the record also shows at least one of these contacts is testimonial. On February 12, 2007, Officer Ray McDermott was dispatched in response to a report of vandalism. He contacted defendant while defendant was in a car with Nicholas Huaracha, a self-admitted North Side Delano gang member, and Moses Rivera, a self-admitted West Side Delano gang member. During this contact, defendant self-admitted to being a northern gang member. Strand described facts gathered during the course of an investigation following a completed crime. Moreover, the facts he related were from a police report authored by an investigating officer who did not testify at defendant's trial. There can be no doubt evidence of this contact is testimonial hearsay. (Sanchez, supra, 63 Cal.4th at p. 694.)
The record does not permit us to discern whether the remaining three contacts are testimonial. On August 1, 2008, an officer contacted defendant. Defendant was documented wearing a red shirt. When a detainee asked defendant where he was from, defendant took it as a challenge to fight. On September 7, 2008, Officer Bautista observed defendant at a house with two documented Norteños, Orlando Gonzalez and Enrique Davila. On September 29, 2008, defendant threatened Officer Bautista and also pointed to his handgun and stated, "'I have one just like that.'" Although it is possible these contacts occurred during police investigation of a completed crime, the record does not permit us to make a conclusive determination. Moreover, as no Crawford objections were interposed, we will not simply assume they are testimonial. (People v. Ochoa (2017) 7 Cal.App.5th 575, 584-585 [where defendant lodges specific and timely objection at trial, "the People, as the proponent of the evidence, would have the burden to show the challenged testimony did not relate testimonial hearsay"].)
The Attorney General contends the police reports are not testimonial because "the primary purpose of the prior reports was not intended to accuse [defendant] of murder." The Attorney General is referring to the modified primary purpose test set forth by the plurality in Williams v. Illinois (2012) 567 U.S. 50, 84-85 [plur. opn. of Alito, J.] [finding that a forensic report was not testimonial because it was not prepared for the primary purpose of accusing a targeted individual].) As Sanchez explained, this test was rejected by the four-member dissent in Williams, as well as Justice Thomas, who wrote separately. (Sanchez, supra, 63 Cal.4th at p. 691.) Sanchez also rejected this test, reasoning, "the plurality's 'targeted individual' addendum has no basis in the language of the confrontation clause, its history, or post-Crawford jurisprudence." (Sanchez, supra, at p. 695.) Thus, the police reports need not relate to accusing defendant of the charged offense to be testimonial.
The Attorney General further contends the fact the police reports documented police contacts with defendant did not render them sufficiently formal for confrontation clause purposes. Sanchez also refutes this assertion. There, the court held: "'[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it.'" (Sanchez, supra, 63 Cal.4th at pp. 694-695, quoting Davis v. Washington (2006) 547 U.S. 813, 826.) Contrary to the Attorney General's assertion, police reports generally contain a sufficient degree of formality or solemnity so as to be considered testimonial. Of course, whether a police report is ultimately testimonial depends upon the primary purpose of that report. (Sanchez, supra, 63 Cal.4th at p. 694 ["When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, ... those hearsay statements 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"].)
(b) Strand's Reliance on the Testimony of Flores, Camacho, and Melendez
In reaching his opinion defendant was an active gang member and the crime was committed for the benefit of a gang, Strand also relied on testimony from witnesses who testified at defendant's trial, including Flores, Camacho, and Melendez. Strand explained the witnesses testified defendant associated with documented gang members who had problems with Avila. According to Strand, this was significant because "Norteños will back each other up and essentially make one's enemies their own enemies." He also opined the fact that Melendez had previously stated defendant "would just leave" when his friends called was significant because it showed he was a dedicated gang member.
Some of the testimony Strand was relying on in forming his opinion was based on hearsay statements related by Camacho, and some were based on nonhearsay sources, such as statements made by Melendez, who testified to events she had personally perceived. We note although Flores, Melendez, and Camacho were subject to cross-examination at defendant's trial, any hearsay statements they relate must come within an exception. Particularly where defendant lodged contemporaneous objections to the witness's testimony on hearsay grounds. (People v. Rodriquez (1969) 274 Cal.App.2d 770, 777 [after the defendant has raised an evidentiary objection, the burden is on the People to establish admissibility].) As discussed, Strand's reliance on hearsay statements related by Flores and Camacho was improper under state law.
(c) Field Identification Reports
Strand also described two field identification reports detailing police contacts with defendant. One of the reports described the June 13, 2004, police contact between defendant and Officer Lopez. Strand's testimony as to this contact did not violate defendant's Sixth Amendment right to confrontation because Lopez was subject to cross-examination.
The second report described the February 12, 2007, contact between defendant and Officer McDermott. During the contact, defendant self-admitted to being a northern gang member and he was documented in the company of two self-admitted gang members, Moses Rivera and Nicholas Huaracha. As discussed, evidence of this contact appears to be testimonial.
(d) Defendant's Tattoos and Background Testimony About Delano Norte
Defendant contends Detective Strand relied on "images of tattoos" in opining defendant was an active gang member. However, both Officer Lopez and Detective Strand personally observed defendant's gang tattoos.
Defendant further contends Strand related improper testimony as to the fact Delano Norte subsets conduct secret meetings where they plan missions for the month. Strand explained that during the meetings, the gang discusses who is on a hit list and who may be killed without permission. According to Strand, it is common for a member to tell his gang associates who they are having trouble with, and as a result, the gang may go after that individual. Nothing compels the conclusion Strand was relying on improper hearsay rather than sources within his area of expertise, including his personal experience as a law enforcement officer.
We reject defendant's assertion that Strand's description of defendant's gang-related tattoos and his testimony describing secret meetings held by Norteño gang members was based on inadmissible hearsay.
(e) The Predicate Offenses
Defendant further challenges the expert's reliance on police reports to adduce evidence of the gang's pattern of criminal activity. As we explain below, Strand's testimony as to three predicate offenses committed by members of the Delano Norte and West Side Delano Norte gang was based on hearsay not within an exception.
To show Delano Norte has committed a pattern of criminal gang activity, Detective Strand adduced evidence of three predicate offenses. In March 2001, Arturo Villalobos discharged a firearm from a motor vehicle at a house in McFarland, injuring a Sureño gang member. Villalobos pleaded no contest to discharging a firearm from a motor vehicle. Strand opined Villalobos was an active Delano Norte gang member based on his jail booking admission wherein he stated he associated with "'The North,'" and "'All'" cliques or subsets thereof, and that he should be kept away from the "'South.'" Strand also based his opinion on the circumstances of the crime.
In May 2002, Christopher Fragoso stabbed a man in a local liquor store. In his booking admission, Fragoso stated "he belonged to the North and that he should be kept away from the South." Based upon Fragoso's booking admission, and the fact the crime was "an act of violence at ... 7:30 at night," Strand opined Fragoso's assault was committed for the benefit of the Norteño gang and that Fragoso was a Norteño and a member of the West Side Delano Norte subset.
In May 2004, Andres Lara was driving through Delano when he encountered two Sureños. Gunfire erupted and both Sureños were shot. Strand opined Lara was Norteño because he had "WSDN" tattooed across his chest, and on previous occasions he had yelled out at the victims, "'It's all about the Norte.'" Lara pled no contest to assault with a deadly weapon. Strand stated Lara was a member of the West Side Delano Norte subset.
Strand familiarized himself with all three cases by reading police reports. The circumstances of the crimes he described suggest the reports were compiled during the official investigation of completed crimes. Sanchez makes clear that an expert is not permitted to supply case-specific facts about which he has no personal knowledge. (Sanchez, supra, 63 Cal.4th at p. 676.) This is so regardless of whether those facts are also testimonial. Here, even if the facts Strand related were not testimonial, it seems clear they are case-specific hearsay. (Id. at p. 685; People v. Ochoa, supra, 7 Cal.App.5th at pp. 588-589 [a nonparty's admission to being a member of a certain criminal street gang is a case-specific fact under Sanchez].)
The booking admissions described by Strand were not admitted into evidence. Further, the certified court records admitted to prove the prior convictions of all three offenders do not show which criminal street gang Villalobos, Fragoso, and Lara claimed membership to. Thus, there was no nonhearsay evidence showing Villalobos, Fragoso, and Lara claimed membership to Delano Norte or West Side Delano Norte.
3. Prejudice
To summarize, we conclude the prosecutor's gang expert related hearsay when he relied on statements made by Avila to his fiancée Flores and to his friend Camacho. We further conclude the gang expert related some testimonial hearsay in opining defendant was an active Delano Norte gang member. Finally, the record shows Strand related case-specific hearsay in adducing evidence of the prior convictions of Delano Norte and WSDN gang members.
"'"'Confrontation clause violations are subject to federal harmless-error analysis under Chapman[, supra,] 386 U.S. 18, 24.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error."'" (People v. Capistrano (2014) 59 Cal.4th 830, 873.) Because some evidence of defendant's prior contacts with police are testimonial, we address the cumulative effect of all errors under the constitutional standard. (Sanchez, supra, 63 Cal.4th at p. 697.)
(a) Defendant's Active Gang Status
Strand related some testimonial hearsay in adducing evidence of defendant's prior contacts with police. Notwithstanding this evidence, the record discloses ample evidence showing defendant claimed membership to Delano Norte, the West Side Delano Norte subset, and that Avila's murder was gang related.
In June 2004, defendant admitted to Officer Vincent Lopez he was a West Side Norteño gang member. In December 2007, Officer Lewis described an incident where defendant was detained at a police checkpoint. During the incident, defendant yelled out "'Delano Norte,'" and "'Fuck the Bulldogs,'" and he was documented in the presence of other Norteño gang members.
Defendant had multiple gang-related tattoos, including a Huelga bird and West Side Delano tattooed on his shoulder, and four dots on his elbow. Strand explained a four-dot tattoo on a Norteño signifies the individual has put in work for the gang. Finally, defendant's girlfriend identified him as a Norteño gang member when she was interviewed by Detective Campos. Her testimony was admissible at trial as a prior inconsistent statement. Defendant's prior admissions, his gang tattoos, and his girlfriend's statement to police strongly support the conclusion he was an active gang member.
The nonhearsay evidence admitted at trial also showed the shooting was motived by intergang rivalry. Avila was shown to be an active Sureño gang member who had been threatened by the Norteños on multiple prior occasions. Although there was no evidence to suggest defendant was ordered to kill Avila, the crime itself suggested it was an execution-style murder. As defendant himself notes, "someone shot Avila at point-blank range, left, and then returned to shoot him several times again." Following the shooting, a message directing retaliation against the Norteños was spray painted in an alley near the restaurant. Based on this evidence, it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the erroneous admission of certain hearsay evidence. (People v. Capistrano, supra, 59 Cal.4th at p. 873.)
(b) The Predicate Offenses
The record shows Strand related case-specific facts from police reports authored by other officers in adducing evidence of the fact Villalobos was a Delano Norte gang member, and Fragoso and Lara were members of the West Side Delano Norte subset. These reports were gathered during the investigation of completed crimes. Excluding evidence of these police reports and Villalobos's and Fragoso's booking admissions, there is insufficient evidence to show these offenders were Delano Norte or West Side Delano Norte gang members.
Even if this evidence is not testimonial, it is case-specific hearsay under Sanchez. (Sanchez, supra, 63 Cal.4th at p. 677 [expert's opinion that presence of diamond tattoo shows an associate of defendant belongs to a criminal street gang is a case-specific fact].)
We are unable to conclude the erroneous admission of this evidence was harmless. Although the jury could have relied on evidence of defendant's conviction for second degree murder as evidence of one predicate offense (People v. Duran (2002) 97 Cal.App.4th 1448, 1458), a pattern of criminal gang activity must be shown by the conviction of two or more enumerated offenses "committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).) Without evidence of a second predicate offense, we are compelled to conclude the prosecutor failed to show the existence of a criminal street gang as defined under section 186.22. As a result, the jury's true finding on the gang enhancement attached to count 2 must be stricken and defendant's conviction on count 3 must be reduced, because this count necessarily relies on the existence of a criminal street gang as defined under section 186.22.
As a result of striking the gang enhancement and reducing defendant's conviction on count 3, the requirement that defendant register as a member of a criminal street gang pursuant to section 186.30 must also be stricken.
IV. Associational or Organizational Connection
In a supplemental brief, defendant challenges the sufficiency of the evidence "'showing an associational or organizational connection that unites members of [the] putative criminal street gang,'" in light of the fact that Delano Norte was shown to comprise various subsets. (Prunty, supra, 62 Cal.4th at p. 67.) The Attorney General contends the evidence permitted the jury to infer defendant shot Avila for the benefit of Delano Norte or the West Side Delano Norte subset. We address this issue because it is relevant to whether the People may retry defendant for the gang enhancement. As a practical matter, we recognize there would be no sentencing benefit to retrial since the gang enhancement on count 2 was ordered stayed, and defendant was not sentenced on the gang enhancement attached to count 1. Nonetheless, the People may seek to retry defendant in the event his conviction on count 1 is reversed following a successful habeas corpus petition. With this in mind, we are guided by the following standard: "[I]n 'reviewing the sufficiency of the evidence for purposes of deciding whether retrial is permissible, [we] must consider all of the evidence presented at trial, including evidence that should not have been admitted.'" (People v. Lara (2017) 9 Cal.App.5th 296, 328, fn. 17.)
Preliminarily, we agree with defendant's contention that the prosecutor's theory of the case was that defendant murdered Avila for the benefit of the overarching Delano Norte criminal street gang. Notwithstanding the prosecutor's ambiguous theory in closing argument, the evidence he adduced at trial supports the conclusion the crime was committed for the benefit of the overarching Norteño gang, rather than the West Side Delano Norte subset. Nonetheless, because sufficient evidence supported the conclusion Delano Norte was a criminal street gang under section 186.22, subdivision (f), we reject defendant's contention that Prunty necessitates reversal of his convictions.
A. Legal Principles
Section 186.22, subdivision (b)(1) establishes a sentencing enhancement for "any person who is convicted of a felony 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." To establish the existence of a "criminal street gang" within the meaning of section 186.22, the People must prove: "(1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran, supra, 97 Cal.App.4th at p. 1457; see § 186.22, subd. (f).)
Thus, among other elements, the People must prove the alleged criminal street gang for whom the defendant acted for the benefit of has engaged in a pattern of criminal activity. A "pattern of criminal gang activity" is a gang member's individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated predicate offenses during a statutorily defined time period. (§ 186.22, subd. (e); see People v. Loeun (1997) 17 Cal.4th 1, 9-10.)
In Prunty, our Supreme Court "decide[d] what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) Prunty held "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71.) A problem "arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang." (Id. at p. 91 (conc. & dis. opn. of Corrigan, J.).)
In Prunty, the prosecution failed to prove the existence of a unified criminal street gang because the predicate offenses—committed by members of alleged Norteño subsets—were not shown to be sufficiently connected to either the subset claimed by the defendant, or to the overarching gang. (Prunty, supra, 62 Cal.4th at p. 82.) The court explained, "where the prosecution's evidence fell short [was] with respect to the predicate offenses." (Ibid.) The gang expert did not describe any evidence showing "collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described." (Ibid.) For example, the gang expert's testimony did not show the alleged subsets "shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Ibid.)
The expert's testimony in Prunty also failed to demonstrate "the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that defendant sought to benefit." (Prunty, supra, 62 Cal.4th at p. 82.) Although there was ample evidence the defendant identified as both a member of a subset of the Norteños and the larger overarching Norteño gang, the expert offered no evidence showing whether the individuals who committed the predicate offenses exhibited behaviors showing their self-identification with the umbrella Norteño gang. (Id. at pp. 82-83.) As such, the evidence was insufficient to prove the relevant subsets were part of the same unified criminal street gang. (Id. at p. 85.)
B. Legal Analysis
Here, the gang expert opined Villalobos claimed membership to Delano Norte, and Fragoso and Lara were members of West Side Delano Norte. Defendant contends West Side Delano Norte was not shown to be sufficiently linked to the overarching Delano Norte gang. We agree, but find no prejudice.
To the extent the prosecutor adduced evidence of the fact Fragoso and Lara were in a subset of Delano Norte, he was required to link that subset to the overarching Delano Norte criminal street gang or prove that West Side Delano Norte was a criminal street gang in its own right under section 186.22. Fragoso's and Lara's subjective intent to identify with the overarching northern gang was insufficient to show such a connection, as was their use of a similar name, colors, and common enemy. (Prunty, supra, 62 Cal.4th at pp. 74-75, 79, 82-84.)
The Attorney General contends the prosecutor theorized defendant murdered Avila to benefit Delano Norte or the West Side Delano Norte subset. In closing argument, the prosecution stated: "Now, if and only if you find that this is a first-degree murder, you will next have to decide whether the defendant intended this murder to benefit the Norteños or West Side Delano, the subset of the Norteños."
We reject this theory. In adducing evidence of the primary activities of the gang, the prosecutor asked Strand about the primary activities of Delano Norte rather than West Side Delano Norte. Moreover, the prosecutor asked the gang expert whether Delano Norte had committed a pattern of criminal activity. Finally, assuming a hypothetical mirroring the facts of the instant case, the prosecutor asked how a crime similar to the shooting perpetrated by defendant would benefit Delano Norte. Thus, notwithstanding the prosecutor's ambiguous comments in closing argument, the theory he pursued at trial was that defendant murdered Avila for the benefit of the overarching Delano Norte gang.
Nonetheless, there was ample evidence to show Delano Norte was a criminal street gang within the meaning of section 186.22, subdivision (f). Only two predicate offenses are required to establish the existence of a criminal street gang under section 186.22. (People v. Duran, supra, 97 Cal.App.4th at p. 1458.) Here, the jury could rely on defendant's conviction in the instant case as evidence of one predicate offense. As noted, the evidence established defendant was a member of the overarching Delano Norte criminal street gang as well as the West Side Delano Norte subset. As to the second predicate offense, Arturo Villalobos was shown to be a member of Delano Norte rather than any particular subset of Delano Norte. Nothing in the record compels us to conclude he was also necessarily a member of a subset. Thus, we find no prejudice.
V. Admission of Gang Evidence Under Evidence Code Section 352
Defendant contends the gang evidence should have been excluded under Evidence Code section 352 because it was cumulative and unduly prejudicial. We conclude the trial court exercised its discretion appropriately in admitting the gang evidence.
A. Legal Principles
"Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. [Citations.] '"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."'" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168; see People v. Valdez (2012) 55 Cal.4th 82, 138.) We review a trial court's evidentiary rulings for abuse of discretion and will reverse only if the ruling was arbitrary, whimsical, or capricious as a matter of law. (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
B. Legal Analysis
The gang evidence was admitted in the instant case because it was relevant to the motive for the shooting. Where evidence supporting a gang enhancement is also admissible to prove the underlying charges, any inference of prejudice is dispelled. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Defendant nonetheless maintains the gang evidence was cumulative and prejudicial. He specifically challenges Strand's testimony describing "multiple uncharged offenses committed by other suspected gang members" and seven prior police contacts with defendant.
Not only did defendant fail to challenge the admission of the gang evidence by lodging a specific and timely objection below, our independent review of the record discloses no basis to infer this evidence was cumulative and unduly prejudicial. Evidence of defendant's prior police contacts tended to show he was a member of a criminal street gang years before and after Avila's murder. These contacts documented defendant's association with other gang members, his display of the color red, and his self-admissions to being a gang member. From this evidence, the jury could draw the conclusion that defendant was a criminal street gang member at the time of Avila's murder. This was directly relevant to the charged offenses.
The prejudice Evidence Code section 352 is designed to protect against is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.
"'[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Here, evidence of defendant's prior contacts with police was probative of the fact he was a Delano Norte gang member. We reject defendant's assertion this evidence had little probative value on the issues or that the "sheer volume of the evidence was prejudicial."
Defendant further contends details of some of the gang evidence, specifically those showing he previously tried to bite a police officer and he intentionally urinated on a floor, "had nothing to do with motive or ... gang related activity" and could only have prejudiced the jury against him for his "despicable behavior."
The record belies defendant's assertion. The jury heard this evidence but found defendant guilty of second degree murder. This was so even though the circumstances of the crime strongly support the conclusion defendant committed the murder with willful and deliberate premeditation. In light of the strong evidence supporting defendant's guilt, we are not persuaded there was a reasonable possibility of a more favorable outcome if the evidence showing he had previously tried to bite an officer and urinated on a floor had been excluded. (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1191.)
Finally, defendant argues that absent the gang evidence, there was little connecting him to the charged crimes. His conclusion is untenable in light of the fact several witnesses identified him as the shooter and his palm print matched a palm print found on Avila's truck, which had been washed the morning of the shooting.
We conclude defendant has failed to show the trial court abused its discretion in admitting certain gang evidence under Evidence Code section 352.
VI. Defendant's Conviction on Count 3
Defendant contends his sentence on count 3 for possession of a loaded firearm in public should be reversed because he acted alone in the commission of the shooting. The Attorney General agrees because defendant acted alone, he could not be convicted of carrying a loaded firearm in public while actively participating in a criminal street gang. (§ 25850, subd. (c)(3); People v. Rodriguez (2012) 55 Cal.4th 1125, 1139 [active participation in a criminal street gang under § 186.22, subd. (a) punishes the "commission of criminal acts done collectively with gang members"].) Rather than reversing defendant's conviction, the Attorney General asserts the appropriate remedy would be for this court to reduce the conviction to the misdemeanor offense of carrying a loaded firearm in public.
Section 186.22, subdivision (a), makes it a crime to "actively participate[] 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." The substantive gang offense is composed of three elements: (1) active participation in a criminal street gang; (2) knowledge the gang's members have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance of any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) The substantive gang offense is directed at targeting "gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related." (People v. Rodriguez, supra, 55 Cal.4th at p. 1138.)
A conviction for unlawfully carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subd. (c)(3)) requires the prosecutor to prove each element of the substantive gang offense (§ 186.22, subd. (a)). (People v. Robles (2000) 23 Cal.4th 1106, 1115.) Here, not only did the People fail to show the existence of a criminal street gang, as discussed under part III, ante, the evidence did not show defendant acted in concert with other gang members in committing the charged offenses.
Defendant argues we should dismiss count 3 because he has already been punished for his personal use of a firearm. Alternatively, he submits that if count 3 is reducible to the misdemeanor offense of carrying a loaded firearm in public, the appropriate remedy would be to reduce his conviction and stay his sentence pursuant to section 654. We conclude the offense is reducible.
The plain language of section 25850 makes clear that carrying a loaded firearm in public is a lesser included offense of carrying a loaded firearm as an active participant in a criminal street gang (id., subd. (c)(3)). The latter offense necessarily implicates the commission of the former offense. We will therefore order the trial court to reduce defendant's conviction on count 3 to the misdemeanor offense of carrying a loaded firearm in public (§ 25850, subd. (c)(7)), and stay his sentence under section 654. VII. Defendant's Pitchess Motion
Defendant asks this court to independently review the documents examined by the trial court in response to his Pitchess motion to determine whether any materials were improperly withheld from disclosure. The Attorney General does not object.
A. Pitchess Motion
Pitchess established that "a criminal defendant [can] 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; see §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)
Pursuant to the Pitchess discovery procedure, the moving party must file a written motion describing the type of records sought, supported by "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, § 1043, subd. (b)(3); accord, People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) If the superior court finds good cause, it must conduct an in camera review of all pertinent documents to determine whether any documents are relevant to the case, typically disclosing only identifying information concerning those who filed complaints against the officer. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.)
When the court finds good cause and conducts an in camera review pursuant to Pitchess, it must make a record of what documents it has examined to permit appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1230; People v. Guevara (2007) 148 Cal.App.4th 62, 69.) The court may preserve the record by photocopying the documents and placing them in a confidential file, preparing a sealed list of the documents it considered, or "simply state for the record what documents it examined" and seal that transcript. (Mooc, supra, at p. 1229.)
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records. (Mooc, supra, 26 Cal.4th at p. 1229; see People v. Hughes (2002) 27 Cal.4th 287, 330.) Defendant is entitled to meaningful appellate review of the confidential files reviewed by the superior court. (Mooc, at p. 1228.)
If the reviewing court determines the superior court abused its discretion by denying disclosure of confidential records it had reviewed, reversal is not required unless the error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Samuels (2005) 36 Cal.4th 96, 110; People v. Gaines (2009) 46 Cal.4th 172, 182-183.) The determination of whether the court's error was prejudicial "involves an assessment or weighing of the persuasive value of the evidence that was presented and that which should have been presented." (Gaines, at p. 182.) There must be a reasonable probability of a different outcome if the potential impeachment evidence had been disclosed. (Ibid.)
B. Background
On February 4, 2014, defense counsel filed a motion seeking disclosure of any complaints related to dishonesty, false statements, or the fabrication of charges or evidence by Officer Martin Cervantes, the former lead investigator assigned to Avila's murder case. The prosecutor had advised defense counsel Cervantes had engaged in possible misconduct during the handling of the instant case and indicated defendant should file a Pitchess motion.
Defendant filed a pretrial motion for disclosure of Officer Cervantes's personnel records pursuant to Pitchess. The trial court determined defendant's motion showed a plausible factual foundation for the discovery requested and conducted an in camera review of all pertinent documents to determine whether any of the records were relevant and subject to disclosure. Following the trial court's review, one report describing misconduct by Officer Cervantes in the instant case was disclosed.
The appellate record shows the superior court reviewed a total of four other reports during the in camera hearing and determined none of the reports were responsive to defendant's request for discovery under Pitchess. Our independent review of two of these reports discloses no basis to infer the trial court erred in reaching its conclusion.
Photocopies of the two remaining reports, however, were not included in the appellate record. The first report was marked IA 2009-04 and dated February 20, 2009, and the second report was marked IA 2007-04 and dated April 2007. The superior court's description of the first report does not permit us to conclusively determine whether it was improperly withheld from disclosure. The court's description of the second report appears to show it did not contain materials responsive to defendant's Pitchess motion.
On January 12, 2015, this court granted defendant's motion to augment the record to include the reporter's transcript from the in camera hearing held pursuant to defendant's Pitchess motion, as well as the documents examined by the court at the hearing. We further directed the superior court to prepare a settled statement stating "(1) whether the files received from the custodian are the same files the court examined at the in camera hearing held on April 15, 2014; (2) whether any other files were examined at the in camera hearing held on April 15, 2014, that were not received from the custodian and describe the contents of those missing files as completely as possible within the court's recollection; and (3) any other pertinent information."
By order dated May 15, 2017, we directed the superior court to augment the record to include the two omitted reports, or to describe the contents of those missing reports as completely as possible within the court's recollection. Although the superior court's description of the second report supports the conclusion it did not contain materials responsive to defendant's Pitchess motion, we requested augmentation of the record to include this report out of an abundance of caution. We ordered the court to transmit the settled statement and all transcripts to this court.
On June 19, 2017, the superior court submitted a sworn declaration by the Chief of Police for the City of Delano and an affidavit by a clerk for the Kern County Superior Court indicating these records had been destroyed and that no records would be provided. As a result, the court was unable to conduct further proceedings in order to prepare a settled statement.
On our own motion, and over defendant's objection, we take judicial notice of the existence of the clerk's affidavit as well as the declaration of Chief Mark DeRosia, which were transmitted to this court by the Kern County Superior Court. (Evid. Code, § 459.) In so doing, we emphasize we take notice of the existence of these declarations and not of the truth of the statements therein. We further note since these documents were transmitted by the superior court, and are therefore part of the record on appeal, we take notice of these documents only out of an abundance of caution.
Following the filing of our opinion, defendant submitted a petition for rehearing. Because the parties did not receive copies of this court's May 15, 2015, order for a settled statement, or the declarations submitted in response to our order, we granted defendant's petition to give the parties the opportunity to submit supplemental briefing on whether the superior court's failure to disclose or otherwise adequately describe the nature of the two reports prejudiced defendant.
C. Legal Analysis
The superior court determined two reports in Cervantes's personnel record were not subject to disclosure. We find no prejudicial error with respect to the court's conclusion.
Notably, it has been more than five years since the reports at issue were created. Our Supreme Court has held the routine destruction of records after five years does not deny a defendant's due process. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 12.) "Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant's constitutional right to a fair trial; routine destruction by a law enforcement agency 'acting ... "in accord with [its] normal practice"' tends to indicate '"good faith"' [citations]." (Ibid.) "[D]ue process does not prohibit a law enforcement agency from destroying records of citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent." (Ibid.) Such destruction "violates a defendant's right to due process only when the complaint's exculpatory value to a particular criminal case is readily apparent before its destruction. [Citation.] The mere 'possibility' that the complaint might be exculpatory in some future case is insufficient." (Id. at pp. 11-12.)
The date of the purged reports reviewed by the superior court at the in camera hearing suggests they have been routinely destroyed. Contrary to defendant's assertion, there is simply no evidence to support the conclusion these records were destroyed in bad faith or that the exculpatory value of these records was "readily apparent." Although defendant claims the purged reports contained exculpatory or impeaching material under Brady v. Maryland (1963) 373 U.S. 83, nothing in the record supports his contention.
Even assuming the purged reports contained evidence bearing on Cervantes's credibility, it is not reasonably probable the outcome of this case would have been different if such information had been disclosed to the defense. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 842-843.) Officer Cervantes had only been assigned as the lead investigator on Avila's murder case between February 2010 and March 2010, a time span of one month. There is no evidence he participated in the investigation of Avila's murder at any time thereafter, nor does the record show Cervantes testified at defendant's trial.
We further observe any evidence bearing upon Cervantes's credibility would have been duplicative of evidence defense counsel adduced at trial. During cross-examination, defense counsel questioned Detective Campos about the circumstances of Cervantes's removal as the lead detective on Avila's murder case. Campos had been assigned to investigate Cervantes following a report that Cervantes had shown defendant's photograph to Avila's parents and had offered to give them defendant's home address. Cervantes refused to cooperate with the investigation and he ultimately resigned from the Delano Police Department. Defense counsel emphasized the incident in opening and closing argument, opined Cervantes had a personal vendetta against defendant, and suggested the report showing defendant's palm print matching the latent print on Avila's truck was somehow compromised because it was generated when Cervantes was the lead detective on the case. Any additional testimony about Cervantes's credibility, which might have been contained in the purged reports, would only be cumulative of the evidence adduced at trial. We therefore conclude it is not reasonably probable the result of defendant's trial would have been different had the purged reports been disclosed to defense counsel. (People v. Marshall, supra, 13 Cal.4th at pp. 842-843.)
Defendant requests we order remand to permit the trial court to conduct a hearing to clarify the nature of the confidential materials it reviewed in camera. That, however, was the purpose of this court's order for a settled statement. Because the court has indicated it is unable to comply with our order, we have presumed error. The inquiry now is whether defendant was prejudiced by the court's error and, as we have explained, we are unable to conclude defendant was prejudiced.
He also requests remand to conduct a hearing with the custodian of records to determine whether the destruction of the purged reports was the result of bad faith. Defendant's request appears to be based, in part, on the assumption that Chief DeRosia was required to retain Cervantes's records beyond five years. He does not, however, direct us to sufficient legal authority to support his assertion. Section 832.5, subdivision (b) requires a law enforcement agency to preserve records of citizen complaints for "at least five years." "Many if not most law enforcement agencies have a policy of routinely destroying citizen complaints after five years." (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 11.) Here, the missing reports were at least five years old at the time of the in camera hearing on defendant's Pitchess motion. Because Chief DeRosia appears to have complied with all statutory requirements with respect to the retention and destruction of these records, remand is not an appropriate remedy.
Further, the authority defendant relies on in support of his request for remand is inapposite. In People v. Guevara, supra, 148 Cal.App.4th at page 68, the custodian of records represented that no documents in the officers' personnel records were responsive to the defendant's Pitchess motion. The list of documents the custodian of records had examined in reaching this conclusion was not made part of the record on appeal. (Ibid.) As a result, the Court of Appeal could not determine whether the custodian of records withheld potentially responsive or relevant materials from disclosure. The Court of Appeal noted the trial court is the "'locus of decisionmaking' at a Pitchess hearing, ... not the prosecution or the custodian of records.'" (Id. at p. 69.) Because the Court of Appeal could not adequately assess the completeness of the custodian's review of the personnel files, nor could it establish the legitimacy of the custodian's decision to withhold documents contained therein, the judgment was conditionally reversed so the court could conduct a new in camera hearing. (Ibid.)
In People v. Bell (2015) 241 Cal.App.4th 315, the trial court erroneously denied the defendants' request for a jury trial on their "once in jeopardy" pleas. Sections 1041, subdivision 3, and 1042 unambiguously require all issues of fact raised by a plea of once in jeopardy to be determined by the jury, including the issue of whether the prosecutor provoked the defense in moving for mistrial, as the defendants claimed. (Bell, at p. 360.) Relying on People v. Gaines, supra, 46 Cal.4th 172, we held the proper remedy was to conditionally reverse the judgment of conviction and remand the matter for a new trial on factual issues raised by the defendants' once-in-jeopardy pleas only. Thus, remand was appropriate based on the narrow issue presented. (Bell, at p. 360, citing People v. Gaines, supra, 46 Cal.4th at p. 180 ["'"'[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand.' [Citation.]"'"].)
In cases where the trial court has erroneously denied the defendant's motion for discovery under Pitchess, conditional remand is appropriate. (People v. Gaines, supra, 46 Cal.4th at p. 180, citing § 1260 [the court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances"].) Further, our Supreme Court has explained remand may be appropriate where the trial court has failed to make a record of the documents it examined in camera. (Gaines, at p. 180, citing Mooc, supra, 26 Cal.4th at p. 1231.) Here, in contrast to Guevara and Bell, remand is not required.
After two orders for a settled statement, the state of the record is still unclear as to whether essentially one report was improperly withheld from disclosure. While we have presumed error as a result, it is still defendant's burden to show prejudice. Specifically, defendant must demonstrate "a reasonable probability of a different outcome had the evidence been disclosed." (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.) In light of the age of the purged reports, Cervantes's limited involvement in the investigation of Avila's murder, and in the absence of any evidence showing Cervantes tampered with the palm print evidence presented against defendant, we conclude no such probability has been demonstrated here.
VIII. Cumulative Effect of Errors
Defendant seeks reversal on grounds of the cumulative effect of all errors alleged on appeal. Under the "cumulative error" doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; accord, In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) With the exception of the errors we have identified herein, we conclude all other errors alleged were individually and collectively harmless.
DISPOSITION
Defendant's conviction on count 3 is reduced to the misdemeanor offense of carrying a loaded firearm in public (§ 25850, subd. (c)(7)). The gang enhancement attached to count 2 is stricken. This case is remanded for the People to retry the gang enhancement. If the People elect to retry this enhancement, they shall notify defendant of their intent within 30 days after remand and refile the charges within the time prescribed by law. At the conclusion of further proceedings, or if the People elect not to retry defendant on the gang enhancement, the trial court shall resentence defendant.
In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
MEEHAN, J.