Opinion
D073126
06-06-2018
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL ENRIQUE MADRIGAL et al., Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Enrique Madrigal. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Jessie Ventura Ortiz. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1206343 ) APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed in part; reversed in part; remanded with directions. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Enrique Madrigal. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant Jessie Ventura Ortiz. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gabriel Enrique Madrigal and Jessie Ventura Ortiz (Madrigal and Ortiz together Appellants) of first degree murder (Pen. Code, § 187, subd. (a); count 1); willful, deliberate, and premeditated attempted murder (§§ 664/187, subd. (a); count 2); shooting at an occupied vehicle (§ 246; count 3); and two counts of criminal street gang activity/street terrorism (§ 186.22, subd. (a); counts 5, 6). The jury found true the allegations that Appellants committed count 1: (a) for the benefit of, or at the direction of, or in association with a criminal street gang with the specific intent to promote, or further or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(a); and (b) were active participants in a criminal street gang and that the murder was carried out to further the activities of the criminal street gang within the meaning of section 190.2, subdivision (a)(22). The jury also found true as to Madrigal certain enhancements under section 12022.53, subdivisions (d) and (e) as to count 1. Additionally, the jury found true as to Ortiz that he killed the victim by discharging a firearm from a vehicle (§ 190.2, subd. (a)(21)) and he personally and intentionally fired a firearm causing great bodily injury or death (§§ 1192.7, subd. (c)(8), 12022.53, subd. (d)). Regarding count 2, the jury found true a gang enhancement allegation (§ 186.22, subd. (b)(1)(a)) as to both Madrigal and Ortiz, and a firearm use enhancement as to Madrigal (§ 12022.53, subds. (c), (e)(1)) and a firearm use enhancement as to Ortiz (§§ 1192.7, subd. (c)(8), 12022.53, subd. (c)). As to count 3, the jury found true a gang enhancement allegation (§ 186.22, subd. (b)(1)(a)) as to both Madrigal and Ortiz, and a firearm use enhancement as to Ortiz (§§ 667, 1192.7, subd. (c)(8)).
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Madrigal to prison for life without the possibility of parole for count 1 as to the murder offense and the findings under section 190.2; an additional consecutive term of 25 years to life for the great bodily injury firearm enhancement under section 12022.53, subdivision (d); 15 years to life for the attempted murder as well as a 20-year determinate term under section 12022.53, subdivision (c); and a determinative term of three years under count 5. The court stayed sentences under counts 3 and 6 as well as the corresponding enhancements.
The court sentenced Ortiz to prison for life without the possibility of parole for the murder offense and an additional consecutive term of 25 years to life under the firearm enhancement; 15 years to life for the attempted murder offense as well as a 20-year determinate term under section 12022.53, subdivision (c); and a determinative term of three years under count 5. The court stayed sentences under counts 3 and 6 as well as the corresponding enhancements.
Madrigal appeals, contending: (1) the trial court committed prejudicial error by admitting certain out-of-court statements Ortiz made to his girlfriend, M.G.; (2) the trial court committed prejudicial error by admitting certain portions of a law enforcement interview with M.G.; (3) the trial court committed prejudicial error by admitting evidence of the headstamps on the bullets found in Madrigal's possession as well as the spent casings found at the scene of the crime; (4) substantial evidence does not support a conviction under count 5; (5) there was insufficient evidence to support the jury's findings of gang allegations, gang special circumstances, and the gang-principal firearm allegations; (6) the trial court improperly instructed the jury on an essential element of pattern of gang activity; (7) the prosecutor committed prejudicial misconduct by misstating the law during the rebuttal closing argument; and (8) the trial court committed sentencing errors.
Ortiz appeals and joins most of Madrigal's arguments.
We agree with Madrigal that Ortiz's statements to M.G. should not have been admitted against him and were prejudicial. In addition, we conclude that the admission of other hearsay statements as part of M.G.'s interview were prejudicial as well. As such, reversal as to counts 1 through 3 and 6 is warranted. Also, we conclude that insufficient evidence supports conviction under count 5, and thus, reverse that count as to Madrigal as well. Finally, we agree that substantial evidence does not support the gang allegations, gang special circumstances, and gang-principal firearm allegations, and as such, we strike the jury's true findings on those gang-related issues. Additionally, the lack of substantial evidence is another ground under which to reverse Madrigal's conviction under count 6. Because we reverse all the counts under which Madrigal was convicted, we do not address his remaining arguments.
As to Ortiz, we find no error regarding the admission of his statements to M.G. Also, although we determine it was error to admit certain portions of M.G.'s interview, we conclude such error was harmless. However, Ortiz's argument that insufficient evidence supports his contention under count 5 is well taken. Additionally, we agree that the evidence was insufficient to establish the pattern of criminal gang activity element; therefore, the gang special circumstances for count 1 and the gang enhancements for counts 1 through 5 should be stricken as to Ortiz. Also, because of the lack of sufficient evidence, count 6 should be reversed as to Ortiz as well.
Also, while this case was pending, we granted Ortiz's motion to file a supplemental brief to explain the impact, if any, of amended section 12022.53, subdivision (h) on his sentence. That subdivision allows the superior court, in the interest of justice, to strike certain enhancements under section 12022.53. (§ 12022.53, subd. (h).) The People concede that section 12022.53, subdivision (h) applies to Ortiz, but argue that, on the record before us, the trial court would not have exercised its discretion under the new subdivision even if it had the discretion to do so at the time it sentenced Ortiz. Although the People may be correct, we cannot be certain based on this record, and we will not exercise our discretion in place of the trial court's. As such, in an abundance of caution, we must remand this matter for resentencing to allow the superior court to consider whether Ortiz's firearm enhancement should be stricken.
The amended section 12022.53, subdivision (h) became effective on January 1, 2018. (Stats. 2017, ch. 682, § 2, p. 5108.)
Madrigal joined Ortiz's argument regarding remand to allow the court to exercise its discretion to strike the firearm allegation. Because we are reversing Madrigal's convictions, we do not address this issue as to Madrigal.
In summary, we reverse the convictions as to counts 1 through 3, 5, and 6 as to Madrigal. If the People so choose, they may retry Madrigal on counts 1 through 3. We reverse Ortiz's conviction under counts 5 and 6. Also, the true findings involving the gang special circumstances for count 1 and the gang enhancements for counts 1 through 3 and 5 should be stricken as to Ortiz, and to the extent such allegations apply to him, Madrigal as well. Because substantial evidence does not support the convictions under counts 5 and 6, those counts should be dismissed. We affirm the remainder of the judgment and remand this matter back to the superior court for further proceedings consistent with this opinion, including reconsidering Ortiz's sentence in light of section 12022.53, subdivision (h).
FACTUAL BACKGROUND
Prosecution
Florencia 13 and Mira Loma Dodd Street are rival criminal street gangs. Appellants are self-admitted members of Florencia 13.
In January 2012, Ortiz and M.G. were living on 50th Street with their two children. One evening, two or three cars pulled up in front of their house and people in the cars opened fire at the house. The gunman fired about 50 rounds into the house while M.G. and the children were inside (Ortiz was not present). No one was injured.
Ortiz believed that members of the Mira Loma Dodd Street gang were responsible for the shooting. He told M.G. that he had to get them back. Ortiz's opportunity to exact revenge did not occur for almost four months.
Bruce lived in a house in Mira Loma Dodd Street gang territory. Although he was not a member of the Mira Loma Dodd Street gang, its members regularly congregated at his house. One night in May 2012, Appellants drove to Bruce's home looking for Mira Loma Dodd Street gang members. Finding none in front of the house, they tagged a car parked in front with their Florencia 13 gang graffiti. That car belonged to A.M., who was visiting Bruce and was asleep inside. Appellants also tagged the garage door of Bruce's house with their gang graffiti. When Bruce's dog came outside, Ortiz shot the dog in the head. Bruce came out to check on his yelping dog as Appellants fled in a blue Toyota pickup truck that Madrigal's stepmother owned. Madrigal was the driver. Ortiz fired a few shots as they drove away. Within the next few days, the graffiti on the garage door was painted over and the graffiti on A.M.'s car was "easily removed" with a rag and gasoline.
The injury to Bruce's dog led to the charge of animal cruelty (count 4). The dog survived, and the jury did not convict Madrigal or Ortiz under count 4.
In the early morning hours of June 2, 2012, several people were gathered at Bruce's house, including L.M., a member of the Mira Loma Dodd Street gang. A.M., R.S., and A.A. also were at Bruce's house at that time. L.M. and A.A., who had been in a relationship previously, began to argue and fight. A.M. and Bruce stopped the fight. R.S. had A.A. climb into the passenger seat of his car; he got into the driver's seat. Meanwhile, L.M. walked back toward the garage. At this point, Appellants drove by Bruce's house in the pickup truck, looking for Mira Loma Dodd Street gang members. They drove by initially and confirmed there were gang members present. On a second drive by, Ortiz opened fire with his rifle at the group. Ortiz fired at least seven shots. He shot L.M. twice in the back, causing him to fall to the ground. Ortiz also shot at R.S. in his car, but R.S. was not injured. Nevertheless, the bullets damaged R.S.'s car, shattering the driver's side window. One bullet pierced through part of R.S.'s shirt.
After being shot, L.M. asked A.M. to take him away from Bruce's house. He died later that night.
After the shooting, Madrigal and Ortiz fled the scene. As they sped past a nearby business, a surveillance camera caught footage of them driving by in the pickup truck.
Defense
Neither Madrigal nor Ortiz testified.
A.M. testified that he believed the shooter was riding in an SUV, not a pickup truck. When he was shown a photo of the blue truck that Madrigal's stepmother owned, he testified that was not the vehicle from which the gunman was firing his rifle.
Bruce testified that when L.M. was shot, he ran outside and saw the perpetrator's truck, which he said was the same blue pickup truck that he had seen the week before, when his dog was shot. Just after the killing, however, when he was interviewed at the scene by a sheriff's deputy and later by a detective, he stated in both interviews that he had remained in the house when L.M. was shot, and never saw the perpetrator's vehicle.
M.G. told sheriff investigators that Ortiz had his own stash of ammunition at Tony's house, which he kept with a "long gun." Tony was a former gang member who grew marijuana in the back yard of a house on 56th Street that he rented, but he did not live there. Tony befriended Ortiz after the house on 50th Street was shot up. He invited Ortiz, M.G., and their children to live in the house on 56th Street, which also sheltered two other men who would have otherwise been homeless.
DISCUSSION
I
ORTIZ'S STATEMENTS TO M.G.
A. Madrigal's Contentions
Madrigal asserts the trial court committed prejudicial error by admitting statements Ortiz made to M.G. as statements against penal interest. (See Evid. Code, § 1230.) He argues the statements were not against Ortiz's interest and not reliable. Further, Madrigal asserts the evidence prejudiced him as to counts 1, 2, 3, and 6 as those offenses were based on the drive-by shooting that occurred on June 2, 2012.
Ortiz joined "all applicable issues raised" in Madrigal's opening brief. However, he does not argue that the trial court erred in admitting his statements to M.G. Nor could he do so. Ortiz's hearsay statements to M.G., which implicated himself, constituted admissions. "The hearsay rule does not bar statements when offered against the declarant in an action in which the declarant is a party. (Evid. Code, § 1220.) 'The evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action. Accordingly, the hearsay rule does not make the statements inadmissible.' " (People v. Horning (2004) 34 Cal.4th 871, 898, fn. omitted.) This exception "covers all statements of a party, whether or not they might otherwise be characterized as admissions." (Id. at p. 898, fn. 5; italics omitted.)
B. Background
On December 17, 2013, investigators Gary Bowen and Jason Corey interviewed M.G. Before trial, the prosecution moved to admit Ortiz's statements to M.G. against both Madrigal and Ortiz. The trial court found Ortiz's statements were declarations against penal interest. Additionally, the court determined a "sufficient indicia of trustworthiness" existed to allow the statements to be admitted under Evidence Code section 1230. The court noted that Ortiz made the statements "to a friend and to a girlfriend[,]" "to a person . . . [considered] to be a confidant[.]"
At trial, M.G. testified that Ortiz did not make any admissions to her about shooting the victim or Madrigal driving the blue pickup truck. When Bowen testified later at trial, the prosecutor played a recording of the interview with M.G. During the interview, M.G. relayed a variety of statements Ortiz made about the shooting of L.M. that varied greatly. For example, M.G. told the investigators that Ortiz told her that he was a passenger in the blue pickup truck in which Madrigal was driving and ran over or tried to run over the victim: "[Ortiz] was like, 'Oh, he just ran him over.' I was like, 'What do you mean ran him over?' He's like, 'Yeah, he tried to run him over.' "
M.G. also informed the investigators that Ortiz changed his story about who was driving the truck: "Yeah. And then at first [Ortiz] said that he drove and then later on he said that [Madrigal] drove. And then later on, ah, well, that's different from the story, from their stories because I heard from the street that I was driving." Subsequently in the interview, Bowen asked M.G. whether Ortiz "finally" told her who was driving the truck, and she responded in the negative.
Further, M.G. stated during her interview that Ortiz did not identify the shooter. Instead, Ortiz repeatedly told M.G., "We shot him."
C. Applicable Law
Hearsay statements are generally inadmissible. (Evid. Code, § 1200, subd. (b); see People v. Sanchez (2016) 63 Cal.4th 665, 674 ["[h]earsay is generally inadmissible unless it falls under an exception"].) One exception, codified in Evidence Code section 1230, "permits the admission of any statement that 'when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.' [Citation.] As applied to statements against the declarant's penal interest, in particular, the rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.] [¶] To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' " (People v. Grimes (2016) 1 Cal.5th 698, 710-711(Grimes), fn. omitted; accord, People v. Smith (2017) 10 Cal.App.5th 297, 303.)
The analysis for determining whether Evidence Code section 1230 permits "the admission of 'any statement or portion of a statement not itself specifically disserving to the interests of the declarant' " has evolved. (See Grimes, supra, 1 Cal.5th at p. 713.) Courts used to strictly interpret the declaration against interest exception to the hearsay rule, with the Supreme Court holding the exception was "inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant." (People v. Leach (1975) 15 Cal.3d 419, 441; People v. Greenberger (1997) 58 Cal.App.4th 298, 328 (Greenberger) ["[o]nly those statements or portions of statements that are specifically disserving of the penal interest of the declarant were deemed sufficiently trustworthy to be admissible," while "[s]tatements not specifically disserving were characterized as 'collateral' statements and inadmissible"].) The reason for the Leach rule was that "portions of a confession inculpating others are not as inherently trustworthy as those portions that are actually disserving to the declarant's interests." (Grimes, supra, at p. 713.) Thus, under Leach the declaration against penal interest exception applied only to statements "genuinely and specifically inculpatory of the declarant . . . ." (Greenberger, supra, at p. 329; People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).)
The Supreme Court in Grimes rejected this mechanical approach to determining what constitutes a declaration against penal interest and instead adopted a "contextual approach." (Grimes, supra, 1 Cal.5th at p. 717.) Under Grimes, " 'the nature and purpose of the against-interest exception does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not "further incriminate" the declarant. Ultimately, courts must consider each statement in context in order to answer the ultimate question under Evidence Code section 1230: Whether the statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant's interest, such that "a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true." ' [Citation.] Importantly, the court [in Grimes] found that a statement is not 'automatically inadmissible merely because it does not render the declarant more culpable than the other portions of his confession—or because . . . the statement does not "significantly enhance the personal detriment" to a person who has already confessed responsibility for the crime.' " (People v. Smith (2017) 12 Cal.App.5th 766, 788-789 (Smith), quoting Grimes, supra, at pp. 716-717.) Thus, courts now look at the totality of the circumstances to determine the admissibility of portions of a statement that, "though not independently disserving of the declarant's penal interests, also are not merely 'self-serving,' but 'inextricably tied to and part of a specific statement against penal interest.' " (Grimes, supra, at p. 715, quoting People v. Samuels (2005) 36 Cal.4th 96, 121; accord, Smith, supra, 12 Cal.App.5th at p. 790.)
Additionally, in evaluating whether a statement is made against the declarant's penal interest, courts should be mindful of a statement wherein the declarant is attempting to spread or shift blame. Such a statement may not qualify as one made against the declarant's self-interest. (See Duarte, supra, 24 Cal.4th at p. 613 [statement was inadmissible where it "tended to cast a more sympathetic light on [the declarant's] motives" and his intentions because declarant claimed that he shot at the wrong house]; People v. Shipe (1975) 49 Cal.App.3d 343, 353 ["each [declarant] exculpated himself of the greater offense of murder in the first degree while admitting lesser transgressions"]; Greenberger, supra, 58 Cal.App.4th at p. 335 ["When examining what was actually said by the declarant special attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement's content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility. Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another. This is why Evidence Code section 1230 only permits an exception to the hearsay rule for statements that are specifically disserving of the declarant's penal interest. [Citation.] This is not to say that a statement that incriminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant's penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances."].)
In addition to showing that the declarant is unavailable and that the declaration was against the declarant's penal interest when made, the proponent of the evidence must show "that the declaration was sufficiently reliable to warrant admission despite its hearsay character" before a statement can be admitted under Evidence Code section 1230. (Duarte, supra, 24 Cal.4th at pp. 610-611.)
" 'To determine whether [a particular] declaration [against penal interest] passes [Evidence Code] [section 1230's] required threshold of trustworthiness, a trial court "may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." ' [Citation.] We have recognized that, in this context, assessing trustworthiness ' "requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception." ' " (Duarte, supra, 24 Cal.4th at p. 614.)
"There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against [penal] interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry." (Greenberger, supra, 58 Cal.App.4th at p. 334.)
We independently review the trial court's preliminary determination whether a hearsay statement is sufficiently trustworthy to qualify as a declaration against penal interest—the same standard courts have traditionally applied in determining whether a hearsay statement bears sufficient indicia of trustworthiness to satisfy the confrontation clause. (People v. Tran (2013) 215 Cal.App.4th 1207, 1217-1218; People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175; Lilly v. Virginia (1999) 527 U.S. 116, 137 [independent review applies in determining whether a hearsay statement has sufficient "guarantees of trustworthiness" to satisfy the confrontation clause].) In contrast, we review the trial court's ultimate decision to admit or exclude the statement for an abuse of discretion, bearing in mind that the scope of the court's discretion is limited by the applicable law and reversal is appropriate only when there is no reasonable basis for the court's ruling. (Tran, supra, at pp. 1217-1218; see People v. Brown (2003) 31 Cal.4th 518, 534.)
D. Analysis
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' " (Grimes, supra, 1 Cal.5th at p. 711, quoting Duarte, supra, 24 Cal.4th at pp. 610-611.)
Here, there is no dispute that Ortiz was unavailable as he invoked his Fifth Amendment right not to testify at his trial. However, the parties disagree regarding whether Ortiz's statements to M.G. were against his penal interest and reliable. The People contend that Ortiz's statements to M.G. were clearly against his penal interest because he "did not seek to curry favor, shift blame or responsibility, but equally inculpated both himself and Madrigal in the murder." They also argue the "overall circumstances in which [Ortiz] made his statements to his girlfriend supported their reliability." Not surprisingly, Madrigal construes Ortiz's statements and the context in which he made them differently than the People. To this end, Madrigal insists Ortiz attempted to deflect blame toward Madrigal to make him be the more culpable person. Additionally, Madrigal points to several indicia of unreliability within the context of Ortiz talking to M.G. Madrigal has the better argument.
Although the People acknowledge the importance of context in analyzing a declarant's statement (see Grimes, supra, 1 Cal.5th at p. 715), they selectively present portions of Ortiz's statement while conveniently ignoring other selections. For example, the People claim that Ortiz did not shift or deflect blame because he "consistently placed himself with Madrigal at the time of the drive-by shooting and murder." Thus, the People emphasize that Ortiz told M.G. that he was with Madrigal and Madrigal was driving. They drove by Bruce's house twice, and after seeing the victim, shot him. However, a closer review indicates that the record is not as precise as the People represent.
The People claim that M.G. told the investigators that Ortiz informed her that Madrigal was driving the truck at the time of the drive-by shooting and cite to a portion of M.G.'s interview they claim supports this assertion. Nevertheless, the record is much less clear. Indeed, M.G. appeared to be unsure who was driving the truck as exhibited by her responses to Bowen's questions about that point. The pages cited by the People state, in part:
"BOWEN: What did you hear about . . .
"M.G.: Nothing, just that how that supposedly they're saying they, ah, [Madrigal] was driving or something like that, and that supposedly right there and stuff, I guess that person right there or something like that . . .
[¶] . . . [¶]
"BOWEN: So you heard [Madrigal] was driving, and who - who did the shooting?
"M.G.: Oh, I don't know. I just know that supposedly they said that they're both dr- right there.
"BOWEN: Who is 'both?'
"M.G.: [Madrigal] and [Ortiz].
"BOWEN: [Madrigal] and [Ortiz] were together . . .
"M.G.: Yeah.
"BOWEN: . . . and [Madrigal] was driving?
"M.G.: I guess. So I don't know if it was [Ortiz] or if he or whatever, cause at first even me, they didn't - weren't even talking. They weren't even talking at all, like, I didn't even see him until probably, like, the following- not that day, but, like, the following day. So the night that they left, I didn't see him that day that the event went on, didn't until the following day."
This portion of M.G.'s interview cited by the People does not establish that M.G. told the investigators that Madrigal was the driver and that Ortiz was the person who told M.G. that fact. Instead, M.G. stated that she guessed Madrigal was the driver, but she was not sure. Moreover, it is not clear from this portion of the record (again cited by the People as evidence that Ortiz told M.G. Madrigal was the driver) that Ortiz is the source of the information M.G. is providing to the investigators. In fact, later in the interview, M.G. told the investigators that she was not sure who was driving the truck and indicated that Ortiz said he was driving, later said Madrigal was driving, and she had even heard a story that she was the driver.
In addition, M.G. did not tell the investigators that Ortiz told her he was the shooter. Instead, M.G. indicated that Ortiz said, "We shot him."
The People maintain that it does not matter that Ortiz did not tell M.G. that he was the shooter because his statements still place Ortiz and Madrigal together at the time of the shooting, which would implicate them both equally. However, the People's argument overlooks the context that M.G. provides. It appears that M.G. was aware, before Ortiz told her, that there had been a shooting of a Mira Loma Dodd Street gang member. And when she later talked to Ortiz about the incident, he told her that Madrigal ran over the victim in the truck. Further, when Ortiz changed his story, he was equivocal about who was driving and stated, "we shot" the victim. Thus, he never conclusively identified Madrigal as the driver or himself as the shooter. At most, Ortiz's statements to M.G. indicate that he was with Madrigal when the victim was shot, and Ortiz played some role in the victim's death. Although in a vacuum such statements do implicate Ortiz and appear to be against his penal interest, when considered in the proper context, Ortiz is shifting and/or avoiding blame. (See Duarte, supra, 24 Cal.4th at p. 613; Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Shipe, supra, 49 Cal.App.3d at p. 353.)
Similarly, we are concerned about the reliability of Ortiz's statements to M.G. The trial court found them to be reliable because Ortiz made them to his girlfriend. Although we agree that the fact that M.G. was Ortiz's girlfriend suggests that Ortiz would treat M.G. as a confidant, this one fact does not overshadow the remaining context of the statements. Notably, Ortiz changed his story multiple times and never indicated who was driving the truck or who shot the victim. The declarant changing his story is a strong indicator that his statement is not reliable. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1108-1109; People v. Geier (2007) 41 Cal.4th 555, 585.)
Also, the context suggests Ortiz was motivated to minimize his role in the shooting further indicating his statements were not reliable. (See Duarte, supra, 24 Cal.4th at pp. 614-616.) If M.G. was Ortiz's trusted confidant, there would be no reason for Ortiz to change his story and deflect blame. However, because he was not entirely honest with M.G. and did not tell her what actually happened, the mere fact that M.G. was Ortiz's girlfriend is not the antiseptic that cleanses the unreliability of Ortiz's statements.
Adding to the unreliability of Ortiz's statements is that, at times, it is unclear the source of M.G.'s information. For example, the People cite to a portion of her interview as proof that Ortiz told her that Madrigal was driving, but the referenced sections of the record do not indicate that the information came from Ortiz, but instead, M.G. heard the information from some unidentified sources.
In summary, we conclude that Ortiz's statements to M.G. were not sufficiently reliable to be admitted as statements against the declarant's penal interest. As such, Ortiz's statements to M.G. were inadmissible hearsay as to Madrigal. Therefore, we must evaluate whether this error was prejudicial.
If admission of the hearsay statements violated a state statute alone, we apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson), and reverse only if there is a reasonable probability of a result more favorable to the defendant in the absence of the error. (Duarte, supra, 24 Cal.4th at pp. 618-619 [Watson standard applicable to state law error in admission of hearsay].) If, on the other hand, the error violated an appellant's confrontation clause rights, we must determine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Madrigal claims "the error was so significant" that it violated his right to due process under the Fourteenth Amendment. However, except for this assertion, he does not cogently argue his point. Without additional explanation, we cannot adequately evaluate this claim.
Next, Madrigal insists his right to confrontation under the Sixth and Fourteenth Amendments was violated as well. To violate Madrigal's confrontation rights, the statements at issue must be testimonial. (See People v. Sanchez, supra, 63 Cal.4th at pp. 686, 698; Smith, supra, 12 Cal.App.5th at p. 785.) The People point out that we recently determined that statements made by a declarant to acquaintances, like the ones here, were not testimonial under the "primary purpose" test. (See id. at p. 787.) Madrigal does not take issue with that determination in Smith. Nor does he argue Smith was wrongly decided on that point. He does not ask us to apply the "primary purpose" test, and he does not argue that if we did so, we would conclude Ortiz's statements to M.G. were testimonial. Instead, he concedes that statements, like the ones made here by Ortiz to M.G., are not testimonial under California Supreme Court precedent. (See People v. Geier, supra, 41 Cal.4th at p. 603; People v. Cortez (2016) 63 Cal.4th 101, 129.) Moreover, he acknowledges that we must follow Geier and Cortez, but maintains that he must preserve the issue for further review by either the California or United States Supreme Court. Essentially, Madrigal all but concedes that we, as an intermediate court of appeal, must evaluate whether the trial court's error here was prejudicial under the Watson standard. However, even under this less stringent standard, we conclude Madrigal was prejudiced by the admission of Ortiz's statements to M.G.
"Ultimately, the question that a court must answer in determining whether a statement falls within the ambit of the confrontation clause is whether, in light of all the circumstances and when viewed objectively, 'the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." ' " (Smith, supra, 12 Cal.App.5th at p. 787, citing Ohio v. Clark (2015) ___ U.S. ___, 135 S.Ct. 2173, 2180.)
The People's sole argument that Madrigal was not prejudiced by the admission of Ortiz's statements to M.G. is based on the trial testimony of another witness, Tony. Tony testified that Ortiz told him that Madrigal drove Ortiz in a blue truck to Bruce's house where Ortiz shot at Mira Loma Dodd Street gang members, and Ortiz believed he had killed two people. Ortiz also told Tony that he had previously shot a dog outside of Bruce's house. With the admission and substance of Tony's testimony, the People insist that even if Ortiz's statements to M.G. were redacted to omit Madrigal's name or excluded altogether, there is no reasonable probability that Madrigal would have received a more favorable result. We disagree.
Tony testified at trial as part of a plea deal. He was on probation for three previous felonies and had open cases, involving two felonies and a misdemeanor. He indicated that he believed he was facing 10 or 12 years in prison for his crimes (the prosecutor indicated that it was at least eight years). In exchange for his testimony, he was sentenced to house arrest and 180 days of probation. Although a deal was not in place when he first spoke to a sheriff's deputy, he told the deputy that he knew "something about the murder" after the deputy apprehended him regarding an outstanding warrant.
Tony also had an extensive criminal history. In addition to the three open cases and the three cases for which he was on probation, Tony had been convicted of manufacturing methamphetamine and intimidating or dissuading a witness. He was sentenced to prison for those offenses. He served time in a juvenile facility and sold drugs for about 17 years. He was a gang member for 10 years, beginning when he was 14 years old.
The People argue that Tony's version of what Ortiz told him confirmed the version Ortiz told M.G. However, the People gloss over several differences. Noticeably, the version of Ortiz's statements to Tony was unequivocal. According to Tony, Ortiz admitted to shooting the victim and stated that Madrigal was driving. Unlike Ortiz's statements to M.G., there was no claim that Madrigal had run over the victim or any question as to the identity of the driver or the shooter.
In addition, it is not clear from the record that the jury found Tony credible. For example, the jury did not convict Madrigal and Ortiz of count 4 (animal cruelty) although Tony testified that Ortiz told him that he had shot the dog in front of Bruce's house. Instead, the jury was deadlocked on count 4, nine to three as to both defendants. We observe that M.G. did not state that Ortiz told her anything about shooting a dog. The jury also requested that Tony's testimony be read back during deliberations.
Further shedding doubt on Tony's credibility, during her interview with the investigators, M.G. indicated that she "never trusted Tony really - I just thought it was a lot of things that I would hear come from him. I - I would always tell [Ortiz], just watch your back because . . . ."
The jury additionally requested copies of the transcript of M.G.'s interview and a DVD player to play a DVD of the interview.
Other than Tony's testimony, the evidence against Madrigal was not overwhelming. There was no direct evidence of Madrigal's involvement in the shooting. There was no eyewitness identification of Madrigal as one of the perpetrators of the crime. And Tony admitted that Madrigal did not tell him anything about the shooting. The rest of the evidence implicating Madrigal was circumstantial.
Madrigal sometimes or mainly drove a blue pickup truck. Further, a surveillance camera near in time and place of the shooting caught footage of a pickup truck. However, at least one eyewitness to the shooting testified that the vehicle used was an SUV, not a pickup truck. In addition, there was evidence that Ortiz participated in a separate drive-by shooting incident in which he drove a "smaller compact truck" and Madrigal was not the passenger in that car. Thus, the jury was presented with an alternative vehicle used in the subject drive-by shooting as well as evidence that Ortiz drove a different, smaller truck during a previous drive-by shooting.
Evidence was produced at trial that Madrigal possessed over 100 rounds of Winchester Super-X .22 caliber cartridges, the same type and brand as the spent casing at the crime scene, and another round of the same type and brand was found in the bed of the blue pickup truck. Yet, a .22 caliber rifle is a common and popular weapon, and thus, the .22 caliber rounds were common and popular ammunition. Also, in the same bag in which the deputies found the .22 ammunition, they found ammunition for other types of guns.
For purposes of our review on this issue, we stress we are not concerned whether substantial evidence supports Madrigal's convictions under counts 1, 2, 3, and 6. Instead, we review the record to ascertain if it is "reasonably probable" Madrigal would have obtained a more favorable outcome had the error not occurred. (People v. Lasko (2000) 23 Cal.4th 101, 111.) Our high court has emphasized "that a 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. ([Watson, supra, 46 Cal.2d] at p. 837; cf. Strickland v. Washington[, supra], 466 U.S. 668, 693-694, 697, 698 ['reasonable probability' does not mean 'more likely than not,' but merely 'probability sufficient to undermine confidence in the outcome'].)" (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; italics omitted.) A more favorable outcome under this analysis includes a hung jury. (Cf. People v. Soojian (2010) 190 Cal.App.4th 491, 519-521.) Under this standard, we conclude had the error not occurred, it is reasonably probable Madrigal would have obtained a more favorable outcome.
Our conclusion here is further buttressed by the trial court's error in admitting other portions of M.G.'s interview containing hearsay, unrelated to Ortiz's statements (as we discuss below).
II
OTHER HEARSAY CONTAINED IN M.G.'S INTERVIEW
A. Appellants' Contentions
Appellants maintain that the trial court committed reversible error when it allowed the prosecution to play M.G.'s interview with the investigators in its entirety because portions of the interview contained hearsay (separate from Ortiz's statements to M.G.). In addition, they argue some portions also lacked foundation and were speculative. The People concede that some of Appellants' arguments have merit, but assert they were not prejudiced by the admission of the evidence.
B. Background
The prosecutor informed the court that she intended to play M.G.'s entire interview to the jury. Appellants objected to specific portions of the interview on the grounds of hearsay, speculation, and lack of foundation.
Madrigal objected to the following portions of M.G.'s interview:
1. M.G. "heard" people saying Madrigal "was driving or something like that, and that supposedly right there and stuff, I guess that person there or something like that . . . [¶] I mean, I heard so many stories."
2. Bowen asked, "So you heard [Madrigal] was driving, and who-who did the shooting?" M.G. responded, "Oh I don't know. I just know that supposedly they said they were both dr- right there." And a few questions later, after Bowen again asked if Madrigal was driving, M.G. responded: "I guess. So I don't know if it was [Ortiz] or if he or whatever . . . ."
3. M.G.'s response to Bowen's question about where the gun used in the shooting came from in which she said she thought Ortiz got the gun from Madrigal or one of Madrigal's uncles, but she was "not exactly sure" and further equivocated when Bowen specifically asked if Madrigal gave the gun to Ortiz: "For - yeah, from him or from somebody, but I'm not exactly sure, I don't wanna like . . . ."
4. Bowen's assertion that Appellants knew the location of Bruce's house, to which M.G. answered, "Oh, I don't know."
5. Bowen asked M.G. about Madrigal's girlfriend's feelings about him being incarcerated, and M.G. responded: "Nothing. Just well, the same thing how everybody gets just kinda like mad and sad because they have choices and . . . [interruption by Bowen] . . . they make dumb decisions."
The People point out, and Madrigal concedes, that he did not object below to this fifth portion of the interview. As such, the People argue Madrigal forfeited this objection by failing to raise it with the trial court. However, considering the record and the trial court's blanket overruling of all objections to the admission of M.G.'s interview, we conclude that any additional objections would have been futile. Therefore, we do not find forfeiture applicable here. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
Ortiz objected to the following portions of M.G.'s interview:
1. M.G. stated she assumed the Mira Loma Dodd Street gang shot up the house on 50th Street.
2. M.G.'s reference to Florencia 13 being at war with the Mira Loma Dodd Street gang.
3. After Bowen told her that the sheriff's department assumed it was the Mira Loma Dodd Street gang shooting up the house on 50th Street, M.G. responded, "I know, everybody heard, too."
4. M.G. said that she had "heard so many stories" about the murder, including that Ortiz and Madrigal were "supposedly . . . both . . . right there" where someone got shot and Madrigal was driving.
5. Ortiz told M.G. that he wanted to get back at the Mira Loma Dodd Street gang as well as M.G.'s statement that the "word on the street" was that Ortiz "was a target[.]"
6. M.G. said that Ortiz and his friends, while drinking around a bonfire, said " 'That fool from Mira Loma died.' "
7. M.G.'s statement, "Yeah, then they just said yeah, I guess they shot him and-but he . . . ."
8. M.G.'s statements that she "heard that supposedly Jeff had gotten rid of" the gun, including her clarification that she heard them say, " 'Oh, yeah. Like, Jeff got rid of it."
9. M.G. stated that Tony once "mentioned something about a dog but he was laughing about it."
The court overruled the objections. In explaining its reasoning, the court emphasized that, in regard to any hearsay objection, M.G.'s interview would be admissible under the prior inconsistent statement exception if M.G. testified inconsistently at trial. (See Evid. Code, § 1235.) The court further stated that to the extent M.G.'s interview could be objectionable under the grounds of lack of foundation or speculation, those objections would be cured by M.G.'s availability as a trial witness. In addition, the court believed that "much of what's said [during the M.G. interview] . . . is explained by her initial reluctance to give information and then later clarify through subsequent statements within the interview[.]"
Also, while the parties were discussing the various objections, the court indicated multiple times that it believed the objected to portions of the M.G. interview also were relevant to M.G.'s state of mind.
By the time of trial, M.G. had married Ortiz in the hope she would not have to testify against him. She primarily contradicted or claimed not to remember what was discussed with the investigators during her December 13, 2015 interview. For example, she testified that she did not remember telling the investigators that she believed the Mira Loma Dodd Street gang shot up her house on 50th Street. She also testified that she did not know who shot up the house. She denied telling Bowen that Ortiz said that he was going to get back at the Mira Loma Dodd Street gang. M.G. denied having any knowledge of the gun that Ortiz used in the drive-by shooting or having described the gun to Bowen. M.G. stated that she did not remember telling Bowen that Madrigal gave the gun to Ortiz. M.G. also denied that Ortiz ever told him that he or Madrigal was involved in the subject drive-by shooting. She denied telling Bowen that Ortiz did so.
Ortiz's trial counsel did not cross-examine M.G., and Madrigal's trial counsel only asked her a few questions, but did not question her about the inconsistencies between her trial testimony and what she said during her interview with Bowen.
While questioning Bowen during the trial, the prosecutor played the tape of M.G.'s interview.
C. Analysis
At the outset, we observe that the trial court took a somewhat unorthodox approach to the admission of M.G.'s interview. It seemed to believe that any potential objections to the evidence would be cured or addressed by the fact that M.G. would testify at trial and could be asked about her interview with the investigators. In other words, although portions of M.G.'s interview might contain hearsay, be speculative, or lack foundation, the court took the approach that somehow M.G.'s presence as a witness negated these objections. Although we acknowledge a trial court has broad discretion to determine the admissibility of the evidence, such discretion is not without limits. We are troubled by a situation, like here, where the court overrules objections to evidence that is clearly speculative, lacks foundation, or is based on hearsay with the caveat that defense counsel can challenge the evidence through cross-examination of the witnesses at trial. Simply because a witness who was interviewed by law enforcement also is going to testify at trial does not render the Evidence Code obsolete in evaluating the admissibility of the witness's statements to law enforcement in the first instance.
1. Madrigal's Objections
Here, regarding Madrigal, the People do not argue that any of the objected to evidence was properly admitted. Instead, they maintain the admission of the evidence was harmless error. We disagree.
The first two portions of M.G.'s interview to which Madrigal objected pertain to M.G. hearing that Madrigal was the driver of the pickup truck during the drive-by shooting and M.G. guessing that Madrigal was the driver based on what she heard. The People agree that the two passages include inadmissible hearsay but argue they are harmless because M.G. later stated that Ortiz told her that Madrigal was the driver. The People's argument, however, assumes that Ortiz's statement to M.G. was admissible as to Madrigal. As we determine above, it was not. Further, the portions of the interview that the People claim show Ortiz told M.G. that Madrigal was the driver are anything but clear. In one portion of the interview cited by the People, Bowen suggested to M.G. that Madrigal was the driver, "So [Madrigal's] drivin' . . ." In another cited portion, M.G. was telling Bowen what Ortiz "would always tell" her when Bowen interrupted to say, ". . . so who was this guy that he-he said he's with [Madrigal], . . . [Madrigal's] drivin' by in-in his truck?" To which M.G. responded, "Yeah, in his truck." Again, Bowen suggested that Ortiz told M.G. that Madrigal was driving. Further, in the interview, M.G. admitted that Ortiz had said he was driving the truck, but later said Madrigal was driving the truck, and finally stated that Ortiz never clarified who was the actual driver or shooter.
We have similar concerns regarding two of the remaining three portions of M.G.'s interview objected to by Madrigal. The People claim M.G.'s statement that Ortiz may have gotten the gun from Madrigal was harmless because it is clear from M.G.'s statement that she really was not sure from whom Ortiz received the gun. We agree that M.G.'s statement was equivocal, but this point only underscores that the statement should not have been admitted in any event. It begs the questions why the People wanted this portion of the interview admitted at trial and why the trial court admitted it if, as the People contend here, "there is precious little the jury could have done with her statement that would harm Madrigal." Indeed, if M.G. did not know who gave Ortiz the gun, then her statement in the interview suggesting or guessing that Ortiz received the gun from Madrigal was not relevant and should not have been admitted. And despite the People's cavalier "so what" argument that the evidence suggesting Madrigal gave the gun to Ortiz was not important, it is clear why the prosecutor wanted this evidence admitted. It further linked Madrigal to the crime if he supplied the gun to the shooter. Therefore, the prosecution's argument that this evidence was unimportant is not persuasive.
Similarly, we are troubled by the admission of M.G.'s statement, repeating that Madrigal's girlfriend had told her she was "mad" and "sad" because of the "dumb decisions" Madrigal made. The People concede that this statement was hearsay and irrelevant. However, again they argue Madrigal was not prejudiced by its admission. We are not persuaded. This statement implies that Madrigal's girlfriend is reacting to Madrigal's "dumb decision" to participate in a drive-by shooting. It is additional circumstantial evidence that Madrigal was guilty (e.g., even his girlfriend knew he did it).
These erroneously admitted statements offered evidence that Madrigal was the driver during the drive-by shooting, Madrigal might have given the gun used in the murder to Ortiz, and Madrigal's girlfriend knew Madrigal was guilty. Against this backdrop, we conclude that it is reasonably probable Madrigal would have obtained a more favorable outcome had the error not occurred. (People v. Lasko, supra, 23 Cal.4th at p. 111.) This error is even more prejudicial when considered in connection to the erroneous admission of Ortiz's statements to M.G. about Madrigal. In light of these errors, we reverse Madrigal's convictions under counts 1, 2, 3, and 6.
We do not find any error in admitting the portion of M.G.'s interview where Bowen asserted that Ortiz and Madrigal knew the location of Bruce's house and M.G. responded that she did not know if that were true.
2. Ortiz's Objections
Ortiz identifies nine portions of M.G.'s interview that he believes were improperly admitted. In support of his position, he joins the arguments promulgated by Madrigal in his opening brief. In doing so, however, Ortiz fails to appreciate the differences between his and Madrigal's positions. Most importantly, Ortiz glosses over the fact that he made statements to M.G. that are admissible as party admissions. In contrast, Madrigal did not make any such admissions, and, as we have concluded above, Ortiz's statements to M.G. are not admissible as to Madrigal as statements against penal interest. Ortiz's joinder in Madrigal's argument does not account for this conclusion. Thus, Madrigal's arguments are not helpful to Ortiz.
Ortiz also does not specifically explain, in his opening brief, why the trial court erred in admitting the subject nine portions of M.G.'s interview. Instead, he notes that he "raised a separate objection on hearsay, speculation and lack of foundation grounds to many specific portions of the statement." Then he asserts that "[f]or reasons articulated by his trial attorney . . . the court should have redacted" the nine passages of M.G.'s interview. Although Ortiz cites generally to about 19 pages of the record wherein he claims his trial attorney discussed these objections, he does not otherwise explain or discuss why the trial court erred in overruling the objections. In other words, Ortiz asks this court to comb through the record to find his trial counsel's arguments and then apply them here. This is not our role. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived."].)
Moreover, even if we were to scour the 19 pages of the record referenced by Ortiz in his opening brief, we would struggle to ascertain why Ortiz believes each of the nine passages should have been excluded. In those 19 pages of the record, Ortiz's trial counsel focused on the first passage regarding M.G.'s statement that she assumed and/or thought the Mira Loma Dodd Street gang shot up the house on 50th Street. Defense counsel did not address any of the other passages in detail, if at all.
Despite these shortcomings, the People do not argue forfeiture. Instead, they argue the statements were admissible because they show what M.G. and/or Ortiz believed. In addition, the People argue that Ortiz is the source of certain statements or the statements are his adoptive admissions. We are not persuaded. The statements at issue, by and large, appear to be speculative, lack foundation, and contain inadmissible hearsay. That said, even if the evidence was erroneously admitted, we conclude any error was harmless.
Here, Ortiz made certain admissions to M.G. that placed himself at the scene of the crime, participating in the murder as either the driver or the shooter. Additionally, after the house on 50th Street was shot up, Ortiz told M.G. that he had to get revenge on the Mira Loma Dodd Street gang. M.G. also indicated that she had seen Ortiz with a "long gun," the same type of gun used in the murder. There was evidence that Ortiz was a member of Florencia 13, and additional evidence indicated that Florencia 13 and Mira Loma Dodd Street gang were rivals. Also, Ortiz admitted to Tony that he shot the victim. Considering this overwhelming evidence against Ortiz, we conclude that it is not reasonably probable Ortiz would have obtained a more favorable outcome had the error not occurred. (People v. Lasko, supra, 23 Cal.4th at p. 111.)
On appeal, Ortiz argues the admission of portions of M.G.'s interview was prejudicial, stressing the techniques the investigators used when interviewing M.G. Ortiz did not argue at trial that the investigators improperly coerced M.G. and her statements should be excluded on those grounds. Here, he argues the investigators' techniques lessen the impact of M.G.'s statements. This argument goes to the weight the jury should have given the evidence. It does not support Ortiz's argument that he was prejudiced by the evidence's admission at trial.
III
HEADSTAMPS ON THE AMMUNITION
Appellants complain about some of the ballistics expert testimony, suggesting it was irrelevant. Specifically, they urge that the trial court should have prohibited the expert from testifying about microscopic markings on the casings at the crime scene that matched markings on live rounds recovered from Madrigal's truck and bedroom. Appellants contend such markings were irrelevant without additional statistical evidence about the widespread distribution of such markings on bullets. We disagree. The evidence from the ballistic expert surpassed the minimal threshold of relevance and was properly admitted at trial. (See Evid. Code, § 210 [" 'Relevant evidence means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."].) To the extent that Appellants are asking us to reweigh the evidence, we cannot do so. On review, we do not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Background
A sheriff's deputy recovered several expended bullet casings from the crime scene. The casings bore the word "Super" as a headstamp. In addition, a deputy found a bag with .22 caliber rifle bullets and other ammunition in Madrigal's bedroom and one .22 caliber bullet in Madrigal's truck. Those .22 caliber bullets also bore the headstamp, "Super." The pathologist recovered two bullets from the victim during the autopsy.
A ballistics expert examined the expended casings from the crime scene, the live bullet cartridges recovered from Madrigal's room and truck, and the bullets taken from the victim's body. The expert concluded that the expended casings deputies collected at the crime scene were all fired from the same gun. The .22 caliber live bullet cartridge in Madrigal's truck was the same brand and caliber as the casings from the crime scene. The bullets recovered from the victim were of the same caliber as the casings. The bag of ammunition from Madrigal's room had a mix of different kinds of bullets, including a box of shotgun shells, .32 caliber automatic handgun cartridges, and a box of Winchester brand Super-X cartridges. The bag also had a loose Winchester Super-X cartridge and a loose Federal brand cartridge. Additionally, the box of Winchester Super-X cartridges were the same caliber and had the same manufacturer as the live round from the truck and the casings from the crime scene.
The expert explained the manufacturing process of bullets and how headstamps are imprinted or impressed on them with a headstamp tool, or bunter. The expert explained that the bunter will leave distinctive microscopic markings on the bullets and that over time, as residue builds up on the tool, or as it wears out, the distinctive markings will change. Thus, it is possible to compare the headstamps between bullets to determine whether they were manufactured relatively close in time and stamped by a given bunter. In comparing headstamps on the casings and the live ammunition recovered from Madrigal's room and truck, the expert found that some of the casings were imprinted by the same bunter around the same time as some of the live cartridges.
The expert explained that a given bunter could stamp hundreds of thousands of bullets. On cross-examination, the defense worked to downplay the significance, if any, of the connection the expert found between the Winchester Super-X casings and the bullet cartridges in Madrigal's truck and room by drawing out that there were thousands of bullets that would exhibit the same microscopic headstamp features. Put differently, the defense sought to show the sharing of the same headstamp was of no significance in establishing Appellants committed the murder and related offenses.
C. Analysis
Appellants maintain that the trial court erred in permitting the expert to testify about the headstamps. Relying on out-of-state case law (including unpublished cases), Appellants point out examples where experts who testified about headstamps also testified about quantitative information (e.g., a certain bunter can stamp a certain number of bullets, the "life span" of a bunter). At trial in the instant action, the expert did not offer any such testimony. Appellants insist that without this additional information, the headstamp evidence was statistically insignificant and therefore irrelevant. They also urge that any possible probative value in the headstamp evidence was far outweighed by its prejudicial impact because there was no evidence of how many bullets a bunter produced or what the geographic distribution of the manufactured bullets was. Therefore, Appellants assert the headstamp evidence was inadmissible. We disagree.
As a threshold matter, we observe that Appellants provide no California authority addressing this issue. They have not pointed to any requirement that a ballistic expert testifying about headstamps would have to provide certain quantitative information to make the evidence relevant. Because there is no requirement as a matter of law that such information is foundationally required to make the testimony admissible, a trial court is guided by basic relevancy and prejudice considerations. (See Evid. Code, §§ 210, 352.)
Here, we conclude the trial court did not abuse its discretion in admitting the headstamp evidence. That the expended cartridge casings bore the same headstamp markings as some of the bullets in Madrigal's room had a tendency, even if only slight, in reason to prove that the bullets that were shot at the crime scene came from Madrigal's bullet stash. That the bullets could also have come from somewhere else does not render the proffered evidence irrelevant, but such a possibility could cause the jury to discount the evidence. In other words, the weight of the evidence is impacted.
Evidence is relevant if it has a tendency in reason to establish a disputed fact that is of consequence to the case. (Evid. Code, § 210.) Only relevant evidence is admissible. (Evid. Code, § 350.) Here, the headstamp evidence passes this minimal requirement. However, the trial court retains discretion to exclude otherwise relevant evidence if the evidence's probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) The prejudice Evidence Code section 352 refers to is not evidence that tends to prove a defendant's guilt because 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, Appellants maintain the headstamp evidence was prejudicial and had a tendency to confuse the jury. We are not persuaded. The fact that some of the bullets recovered from the crime scene had the same headstamp as bullets found in Madrigal's possession was relevant. Moreover, we disagree that the court abused its discretion in not precluding the admission of the evidence under Evidence Code section 352. Appellants were able to cross-examine the ballistics expert, getting him to admit that a given bunter can stamp hundreds of thousands of bullets. In this sense, they provided the jury with an admission by the expert of the type of quantitative information they claim was lacking. Thus, the jury could weigh the evidence accordingly. Additionally, Appellants could have called their own statistics and ballistics expert to present more evidence about the widespread distribution of Winchester Super-X bullets to point out the headstamp evidence was not statistically significant. They did not find it necessary to do so.
In short, the headstamp evidence was relevant and admissible. It was the province of the jury to weigh that evidence. The trial court did not abuse its discretion in admitting the challenged evidence.
IV
COUNT 5
A. Appellants' Contentions
Appellants maintain the evidence to support count 5 (criminal street gang activity/street terrorism) was insufficient. We agree.
B. Background
During closing argument, the prosecutor told the jury that count 5 "deals with the day [Appellants] shot the dog." At trial, the prosecution provided evidence that on May 26, 2012, Appellants drove to Bruce's house, did not see any rival gang members to shoot, and therefore got out and sprayed graffiti on the garage and on a car in the driveway. Bruce's dog emerged from the house, and Ortiz shot it. As Madrigal and Ortiz drove off, two shots were fired from the truck, but Bruce, who had come outside to investigate, could not tell what, if anything, the shooter was shooting at.
The prosecutor summarized the events that occurred on May 26, 2012 in the context of count 4. She explained:
"Count 4 is animal cruelty. And it requires that the defendants wounded a living animal and they acted maliciously. This applies to the day that they went over and shot at Bruce [M2's] dog. That was on May 26th of 2012. And remember what Bruce [M2] says. That that day he hears a shot. He comes outside. His dog is yelping. He goes to comfort his dog, and he sees a little blue truck going down the street and he hears some more shots. Sounded like a .22. [¶] We know that this defendant is the one who did -- oh, and there's an 'F13' painted on the side of his garage. [¶] We know this defendant is the one who did it because -- these defendants are the one [sic] who did it because Mr. Ortiz told Mr. [M3] that he'd done it, that he and Madrigal did it. And it's Madrigal's truck again. [¶] . . . Count 5 deals with the day they shot the dog."
The court instructed the jury on animal cruelty (CALCRIM No. 2953), assault with a deadly weapon (CALCRIM No. 875), and vandalism (CALCRIM No. 2900). The court also instructed the jury regarding the elements of participating in a criminal street gang in violation of section 186.22, subdivision (a) (counts 5, 6; CALCRIM No. 1400).
C. Substantial Evidence Standard
When considering a defendant's challenge to the sufficiency of the evidence, we review the entire record most favorably to the judgment to determine whether the record contains substantial evidence from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. We do not reweigh evidence or reassess a witness's credibility and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198, 210.)
D. Analysis
Section 186.22, subdivision (a) punishes "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." "Th[is] substantive offense . . . has three elements: Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, . . . 'knowledge that [the gang's] members engage in or have engaged in a pattern of criminal gang activity,' and . . . the person 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' " (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Here, the prosecutor relied on the events on May 26, 2012 for the felonious conduct element of the street terrorism charge for count 5. Appellants argue that the vandalism offense was not supported by substantial evidence; thus, it was factually deficient. Where one of several theories presented to the jury is factually insufficient, reversal is required if the record contains "an affirmative indication" that the jury relied on the insufficient ground in convicting defendant. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton); see People v. Marks (2003) 31 Cal.4th 197, 233 ["Where the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground."].)
In Guiton, a jury convicted defendant of selling or transporting cocaine. (Guiton, supra, 4 Cal.4th at p. 1119.) The California Supreme Court determined that the evidence was insufficient on the selling theory, but was sufficient on the transportation theory. The court reasoned that "if there are two possible grounds for the jury's verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground." (Id. at p. 1127.) The court held that: "If the inadequacy of proof is purely factual . . . reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual . . . the . . . rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Id. at p. 1129.) The court found the error to be factual (inadequate evidence of sales) rather than legal (e.g., an improper legal theory); thus, the error did not require reversal. (Id. at p. 1131.)
Here, Appellants argue that the evidence was insufficient to support the jury's finding of felony vandalism. Section 594, subdivision (b)(1) provides that vandalism may be punishable as a felony only if the property damage is $400 or more. Appellants contend the prosecution did not provide the necessary evidence to show property damage of at least $400. The graffiti sprayed on A.M.'s car was easily removed with gasoline and a rag. And the graffiti on the side of the garage was painted over the same day by "[s]ome people from the neighborhood from Mira Loma" (referring to the gang). There was no showing of actual cost to remove the graffiti from A.M.'s car or cover up the graffiti on the garage.
The People acknowledge this evidentiary void, but argue circumstantial evidence and the jury's common knowledge allowed them to infer the property damage was at least $400. Not so. The evidence showed the graffiti was removed with little effort, and the graffiti on the garage was painted over. The People acknowledge this evidence, but still assert the jury would know "a proper paint job to repair the damage Madrigal and Ortiz caused would have required the whole house to be repainted. And it is common knowledge that the average cost to repaint a home exceeds $400." However, the People's argument ignores the fact that the prosecutor failed to provide any evidence whatsoever regarding the value of the property damage. There is no indication that any witness testified that the entire house had to be repainted or the prosecutor made any such argument at trial.
The prosecution has the "burden . . . to prove every element of a crime beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260.) Here, it is clear the prosecution did not satisfy its burden as to the vandalism offense. Thus, the felonious criminal conduct element of the street terrorism offense in count 5 cannot be satisfied by the vandalism offense. That said, we still must affirm Appellants' convictions under count 5 unless there is an affirmative indication in the record that the jury relied on the invalid ground. (Guiton, supra, 4 Cal.4th at p. 1129; People v. Marks, supra, 31 Cal.4th at p. 233.)
After reviewing the record, we do find a basis to conclude the jury based its verdict for count 5 on felony vandalism. The People emphasize that substantial evidence supports a finding of animal cruelty based on Tony's testimony that Ortiz confessed to shooting Bruce's dog. Appellants do not challenge the sufficiency of the evidence of this claim, but instead, point out that the jury did not convict Appellants of animal cruelty, casting doubt that the jury relied on that felony as an element of street terrorism. The People counter, arguing that inconsistent verdicts are permitted. (See People v. Lewis (2001) 25 Cal.4th 610, 656.)
The jury was deadlocked nine to three. There is no indication in the record if it was nine to convict and three to acquit or vice versa.
Although we agree with the general principle that inconsistent verdicts are allowed to stand (see People v. Palmer (2001) 24 Cal.4th 856, 860-861), that tenet does not end our inquiry here. We are not asked to invalidate a conviction based on inconsistent verdicts, but to review the record for an affirmative indication that the jury relied on the invalid ground in convicting Appellants under count 5. In the instant action, the fact that at least three of the jurors did not find the evidence sufficient beyond a reasonable doubt to convict Appellants of animal cruelty (count 4) leads us to question whether those same jurors presented with the same evidence would somehow find animal cruelty proved beyond a reasonable doubt as the felonious conduct element of the street terrorism offense. (See § 186.22, subd. (a).) Put differently, the fact that the jury hung on the animal cruelty conviction is an affirmative indication that the jury did not use that offense as the felonious conduct necessary to convict Appellants under count 5.
The People also contend Appellants' argument fails because substantial evidence supports the jury finding Appellants committed an assault with a deadly weapon based on Appellants firing two shots from the truck as they left Bruce's house. We disagree.
As set out in CALCRIM No. 875, the elements of the crime of assault with a deadly weapon in violation of section 245, subdivision (a)(1) are: (1) the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (2) the defendant did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force with a deadly weapon to a person. The People do not explain how the evidence satisfies these factors. Instead, they argue that assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury" upon another. (§ 240.) Further, the People emphasize that there is no requirement that a defendant actually fire the firearm or even point it at a person because mere placement of the hand on the gun is sufficient if coupled with the requisite general intent. (See People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Then they assert the jury could infer that Appellants fired the gun "in the general direction of the house they just vandalized" because Appellants went to that house with the intent to "extract vengeance upon their Mira Loma Dodd Street gang enemies" and shot Bruce's dog.
At trial, Bruce was the only witness who testified about Appellants taking two shots from the truck on May 26, 2012. To this end, Bruce described what he observed as follows:
"The truck turned the corner here and went up to the stop sign. I didn't know the truck was -- that they were the ones that shot her at that time until the truck reached the stop sign, and they shot off a couple more shots. I don't know what they were shooting at."
Later during his testimony, Bruce responded to the prosecutor's question regarding when he knew the truck was involved in the shooting of his dog:
"Until after they reached the stop sign at Jurupa, they shot off a couple more shots. They stopped at the stop sign, and then when they took off, they shot off a couple more shots. And that's when I knew that's who shot my dog."
Bruce's testimony about the two shots is limited. He testified that he heard the shots, but he admitted he did not know at what the Appellants were shooting. There is no evidence that Appellants shot at Bruce's house or in his general direction. He simply conveys to the jury that two shots were fired after the truck left the scene and turned on a street corner. Based on this sparse evidence coupled with Appellants intent to "extract vengeance" by traveling to Bruce's house, the People claim the jury could infer that Appellants fired at Bruce's house. We are not persuaded.
The only witness to the shots being fired did not testify regarding where or at what Appellants were shooting. There is no indication in the record that bullets were recovered from the May 26, 2012 shooting to show that Appellants shot at Bruce's house or in that general direction. Without more, we cannot say sufficient evidence supports a finding that Appellants committed the offense of assault with a deadly weapon. More specifically, there is no evidence that Appellants did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.
Our conclusion is further buttressed by the prosecutor's closing argument at trial. In referring to count 5, she does not argue to the jury that it could find the felonious conduct requirement of that offense satisfied by Appellants firing two shots while leaving Bruce's house on May 26. Instead, she focused on the animal cruelty count and vandalism.
In summary, based on our review of the record, there exists "a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Guiton, supra, 4 Cal.4th at p. 1130.) A "reasonable probability" means simply more than an "abstract possibility." (See, e.g., People v. Wilkins (2013) 56 Cal.4th 333, 351.) The jury deadlocked on the animal cruelty offense. There was not sufficient evidence presented to support a finding of assault with a deadly weapon based on the May 26, 2012 events. Further, sufficient evidence does not support a finding of felony vandalism. Accordingly, we conclude this was a case of factual insufficiency with an affirmative indication that the jury relied on the insufficient theory. As such, Appellants' convictions under count 5 must be reversed.
IV
GANG ENHANCEMENTS AND SPECIAL CIRCUMSTANCES
A. Appellants' Contentions
A defendant may be subject to sentencing enhancements if he is convicted of "a felony committed for the benefit of, at the direction of, or in association with a[ ] criminal street gang." (§ 186.22, subd. (b).) A "criminal street gang" is "any ongoing organization, association, or group of three or more persons" that, among other things, has "members [who] individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) A "pattern of criminal gang activity" exists when gang members have been convicted of "two or more" statutorily enumerated predicate offenses within three years of each other. (§ 186.22, subd. (e).) Also, among other elements, a prosecutor must prove that a defendant was an active participant in a criminal street gang to obtain a conviction under the substantive street terrorism offense. (See People v. Lamas, supra, 42 Cal.4th 516, 524.)
Here, regarding certain gang enhancements and special allegations as well as count 6 (street terrorism), Appellants maintain substantial evidence does not support a finding that Florencia 13 was a criminal street gang because the prosecution did not prove the required pattern of criminal gang activity. In addition, Appellants argue the trial court erred in instructing the jury, with respect to the element of pattern of criminal gang activity, that "possession of a stolen vehicle" is a predicate offense that may underlie a finding that Florencia 13 engaged in a "pattern of criminal gang activity."
B. Background
In the prosecution's motion to introduce gang evidence, the prosecutor indicated that she would introduce the following predicate offenses: (1) an attempted murder by Florencia 13 gang member J.H. committed on January 11, 2009; (2) possession of a stolen vehicle by Florencia 13 gang member J.U. on February 10, 2011; (3) assault with a deadly weapon (a firearm) by J.U. on November 3, 2012; and (4) Ortiz's juvenile adjudication under Vehicle Code section 10851.
At trial, Carlos Mendoza, an investigator for the Riverside County Sheriff's Department, testified for the prosecution as a gang expert. Mendoza testified about Florencia 13 gang member J.H. Mendoza stated that, on January 11, 2009, J.H. and another individual were riding in J.H.'s car in the Mira Loma area. They saw a young man in a vehicle and started flashing gang signs at him. When the young man did not respond, J.H. shot at the man's vehicle four times then followed the vehicle through the Mira Loma area. J.H. was subsequently convicted of attempted murder and shooting at a vehicle.
Mendoza also testified about Florencia 13 gang member J.U. Mendoza stated that, on February 10, 2011, J.U. was arrested and later convicted of receiving a stolen vehicle. Additionally, Mendoza testified that, on November 3, 2012, J.U. pistol whipped a man and was subsequently convicted of assault with a deadly weapon.
Regarding Ortiz, among other things, Mendoza testified that he "committed . . . an assault on a young man in the Mira Loma area, and that was a Florencia implication in it as well." Ortiz's trial counsel objected on the grounds of relevance, which led to a prolonged discussion outside the presence of the jury. Ortiz's counsel argued that Ortiz's alleged assault should not be admitted at trial because it occurred when Ortiz was a juvenile, there was no adjudication that Ortiz committed the assault, and the underlying facts of the assault were disputed. He asserted the prosecution should only be allowed to admit evidence of the adjudication under Vehicle Code section 10851 (vehicle theft) and not other events that "were not proven or not admitted[.]"
The court asked the prosecutor for what purpose she was offering the incident. The prosecutor answered that she was offering it "[j]ust to prove his . . . active gang status." The court ultimately overruled Ortiz's counsel's objection.
Mendoza then testified about an incident occurring on June 17, 2007. Mendoza stated that three or four individuals were inside a vehicle and Ortiz was outside the vehicle at a convenience store. Ortiz asked a young man outside the convenience store what gang he claimed. The young man responded that he was not a member of any gang and got into his vehicle. As the young man was leaving, one of the three or four individuals in the other vehicle, yelled, "Florencia" or "Florence." Later that night, Ortiz was driving a "smaller compact truck" when a passenger in that car shot at a vehicle a "young man victim" was driving at a Jack in the Box in the Mira Loma area.
After the close of evidence, when the parties were discussing jury instructions, the court asked the prosecutor whether she was including the underlying crimes of the instant matter as "one of the predicates" for the felonious criminal conduct element to establish a pattern of gang activity. The prosecutor responded in the negative and told the court there was no need to instruct the jury regarding "predicates that have not been convictions." Thus, the court instructed the jury that the predicate crimes would consist of "the commission of or attempted commission of or conviction of any combination of two or more of the following crimes: attempted murder, shooting into an occupied vehicle, possession of a stolen vehicle, and/or assault with a deadly weapon." However, the court omitted the portion of CALCRIM No. 1400 that allowed the jury to consider the currently charged crimes for purposes of the element of predicate acts as well as the portion that is required where the predicate acts are to be proved by evidence other than a record of conviction. (See CALCRIM No. 1400.)
C. Analysis
Here, Appellants insist that substantial evidence only supports the existence of one predicate crime. The People counter that substantial evidence easily supports a finding of at least two predicate crimes, if not more. Appellants have the better argument.
Appellants maintain that J.H.'s crimes (attempted murder and shooting at a vehicle) constituted only one predicate crime. They acknowledge that both crimes are qualifying crimes under section 186.22, subdivision (e), but argue they constitute only a single predicate act because there is no indication they were committed on separate occasions or by two or more people. (See § 186.22, subd. (e) ["provided that . . . the offenses were committed on separate occasions, or by two or more persons"].) To this end, Appellants claim the instant matter is analogous to People v. Zermeno (1999) 21 Cal.4th 927 (Zermeno).
The People counter that the two subject crimes qualify under section 186.22, subdivision (e) because they were committed by two people, J.H. and his unnamed companion. In other words, two crimes were committed by the principal (J.H.) and an aider and abettor (the unnamed companion). As such, the People argue this instant matter is like People v. Loeun (1997) 17 Cal.4th 1 (Loeun). We do not find that case instructive here.
In Loeun, supra, 17 Cal.4th 1, the defendant struck the victim several times with a baseball bat. Seconds later, another member of the defendant's group struck the victim with a tire iron. (Id. at p. 6.) The California Supreme Court addressed the question of whether the requisite "pattern" of criminal activity required under section 186.22 could be established "by evidence of the offense with which the defendant was charged and proof of another offense committed on the same occasion by a fellow gang member." (Loeun, supra, at p. 5.) The court answered this question in the affirmative, explaining:
"The pertinent statutory language does not require proof, however, that the two or more predicate offenses must have been committed both on separate occasions and by different persons. Under the statute, the pattern of criminal gang activity can be established by proof of 'two or more' predicate offenses committed 'on separate occasions, or by two or more persons.' [Citation.] The Legislature's use of the disjunctive 'or' in the language just quoted indicates an intent to designate alternative ways of satisfying the statutory requirements. [Citations.] This language allows the prosecution the choice of proving the requisite 'pattern of criminal gang activity' by evidence of 'two or more' predicate offenses committed 'on separate occasions' or by evidence of such offenses committed 'by two or more persons' on the same occasion. Therefore, when the
prosecution chooses to establish the requisite 'pattern' by evidence of 'two or more' predicate offenses committed on a single occasion by 'two or more persons,' it can, as here, rely on evidence of the defendant's commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member." (Id. at pp. 9-10; italics omitted.)
In Zermeno, a section 186.22, subdivision (b) gang enhancement was imposed on a defendant who was convicted of assault with a deadly weapon. (Zermeno, supra, 21 Cal.4th at p. 930.) The finding of the requisite predicate offenses was based on the assault itself and on the aiding and abetting of the assault by the defendant's fellow gang member. (Ibid.) The Supreme Court found the evidence insufficient to support the gang enhancement because "[w]hen a defendant commits an aggravated assault and a fellow gang member aids and abets that assault by preventing anyone from stepping in . . . their conduct [does not] amount to 'two or more offenses' committed 'on separate occasions, or by two or more persons' so as to establish a 'pattern of criminal gang activity' under . . . section 186.22." (Zermeno, supra, at p. 928, fn. omitted.) Instead, the high court concluded that "under applicable law, the combined activity of defendant and his companion, who facilitated defendant's commission of the assault, was a single offense." (Id. at pp. 928-929.)
The court also clarified that "Loeun[, supra, 17 Cal.4th 1] involved two separate assaults by two different assailants, each one subject to criminal liability as a direct perpetrator, not merely as an aider and abettor." (Zermeno, supra, 21 Cal.4th at p. 933.) Where, by contrast, one gang member is the actual perpetrator and the other is liable solely as an aider and abettor, the combined activity of the two constitutes but one offense. (Id. at pp. 931-932.)
Here, we conclude the instant matter is more like Zermeno, supra, 21 Cal.4th 927 than Loeun, supra, 17 Cal.4th 1. Unlike the defendant and his companion in Loeun, here we do not have two separate assaults by two different assailants. Instead, here, J.H. shot at the victim's vehicle, which led to his conviction for two offenses, attempted murder and shooting at a vehicle. At most, the unnamed companion in the car with J.H. could have been an aider and abettor.
Although we find the instant matter distinguishable from Loeun, supra, 17 Cal.4th 1, it also is not on all fours with Zermeno, supra, 21 Cal.4th 927. As the People point out, Zermeno involved only one charged crime with one principal and one aider and abettor. (Id. at pp. 928-929.) Here, J.H. was charged and convicted of two crimes. The People thus argue we can use J.H. for one offense and the unnamed individual for the other (as an aider and abettor). In this sense, the People assert Zermeno does not stand for the proposition that an aider and abettor may never be used to establish a pattern of criminal activity. Although the People may be correct, we do not need to address that issue to resolve the dispute before us.
Here, based on the record before us, it is clear the prosecutor intended to use J.H.'s offenses to establish the predicate crimes not the acts of J.H.'s unnamed companion. Indeed, in the prosecution's motion to introduce gang evidence, the prosecutor indicated that she would introduce the attempted murder by J.H. committed on January 11, 2009 as a predicate crime. Although she mentioned other offenses that could be used as predicate crimes, there is no mention of the crimes of J.H.'s unnamed companion.
Further, the lack of focus on the unnamed companion to establish a predicate crime is underscored by Mendoza's testimony at trial. Mendoza focused on J.H. It was J.H.'s car. J.H. was the shooter. He was convicted of attempted murder and shooting at a vehicle. Mendoza mentioned that another individual was in the car and that he, like J.H., threw gang signs at the victim. Mendoza did not testify that the unnamed companion was driving J.H.'s car.
If J.H. was the shooter, it would be reasonable to infer that the unnamed companion was the driver. However, Mendoza testified that it was J.H.'s car; therefore, it is equally plausible that J.H. was driving.
There is no indication that the unnamed companion was ever charged or convicted of attempted murder and/or shooting at a vehicle based on the events on January 11, 2009, either as a principal or an aider or abettor. Although a conviction is not required for the offense to qualify as a predicate crime, the prosecutor would have the burden to prove, beyond a reasonable doubt, that the crime was committed. The elements of aiding and abetting a crime are as follows: (1) the perpetrator committed the crime; (2) the defendant knew that the perpetrator intended to commit the crime; (3) before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and (4) the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. (CALCRIM No. 401.) Here, the People do not point to any evidence in the record that the unnamed companion knew J.H. intended to shoot at the victim's car, intended to aid and abet J.H., and did, in fact, aid and abet J.H. At most, Mendoza testified that the unidentified individual was in J.H.'s car when J.H. shot at the victim's vehicle, and the individual had previously thrown gang signs at the victim along with J.H. That evidence is not sufficient to prove beyond a reasonable doubt that the unnamed individual was an aider and abettor.
The People's difficulty of successfully arguing J.H.'s unnamed companion's offenses, as the aider and abettor, could be used to establish a predicate crime is further undermined by the prosecutor's statement to the trial court that the jury did not need to be instructed regarding "predicates that have not been convictions." This declaration indicates that the prosecutor was only going to use convictions to establish the predicate crimes and raises the issue whether the jury was properly instructed to consider any felonious conduct that did not consist of a conviction. However, no party addresses this issue, and we eschew any further discussion of it.
Without the People being able to establish that the unnamed individual was an aider and abettor, we are left with J.H.'s convictions of two crimes based on the same act on the same occasion. As such, J.H.'s crimes can only serve as one predicate crime for purposes of section 186.22. (See § 186.22, subd. (e) [predicate offenses must be "committed on separate occasions, or by two or more persons"].)
Having concluded that substantial evidence supports the finding of one predicate crime regarding J.H.'s offenses, we next turn to J.U. The prosecution offered two crimes committed by J.U. The first was receiving a stolen vehicle (§ 496d). The second was assault with a deadly weapon. Regarding the second crime, it is undisputed that that offense occurred after the subject crimes in the instant action. "Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) Therefore, as the People concede, J.U.'s second crime cannot constitute a predicate crime as a matter of law. We thus turn to J.U.'s first crime, which faces no similar temporal problem.
In pertinent part, section 186.22, subdivision (e) states a " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses . . . ." That subdivision then proceeds to list 33 specific crimes that qualify to establish the predicate crimes for a pattern of criminal gang activity. J.U.'s first crime is receiving a stolen vehicle (§ 496d.) That crime is not one of the enumerated crimes. Thus, Appellants argue it cannot qualify as a predicate crime.
The People acknowledge that Appellants are "technically correct." Nevertheless, they note that "grand theft of any firearm, vehicle, trailer, or vessel" is included. (§ 186.22, subd. (e)(10).) The People claim that receiving stolen property is a species of theft. In support of their position, the People emphasize that the general receiving stolen property statute (§ 496) is codified in the larceny chapter of the Penal Code. Further, the People insist that courts "routinely refer to receiving stolen property as a theft crime." To support their position, the People rely on People v. Masbruch (1996) 13 Cal.4th 1001 at page 1008, People v. Frausto (2009) 180 Cal.App.4th 890 at page 901, and People v. Barker (2001) 91 Cal.App.4th 1166 at page 1174. We do not find the People's arguments persuasive.
"Larceny and receiving stolen property are quite distinct, because the crime of receiving stolen property is aimed at the 'fence,' not the thief." (In re Christopher S. (1985) 174 Cal.App.3d 620, 624.) As our high court explained: "[Receiving stolen property] 'is directed at the traditional "fence" and at those who lurk in the background of criminal ways in order to provide the thieves with a market or depository for their loot. Such offenses are essentially different from the actual theft of property prohibited by section 484 [the theft statute] . . . .' " (People v. Jaramillo (1976) 16 Cal.3d 752, 758; cf. People v. Raven (1955) 44 Cal.2d 523, 526 ["It is settled that the thief and the one knowingly receiving stolen property from him are guilty of distinct and separate substantive offenses and are not accomplices of each other."].)
These general legal principles illustrate that receiving stolen property is not the act of stealing or felonious taking, but the act of buying, receiving, retaining or disposing of property with knowledge that it has been stolen. None of the authority or arguments offered by the People challenge this conclusion.
For example, the three cases cited by the People are not helpful to their position. In People v. Masbruch, supra, 13 Cal.4th 1001, a case involving a firearm enhancement for sex crimes, the court quoted another opinion dealing with sex crimes, which stated " '[t]heft crimes such as burglary, robbery and receiving stolen property' " are continuing offenses " 'until the time the felon has reached a place of temporary safety.' " (Id. at p. 1008, quoting People v. Funtanilla (1991) 1 Cal.App.4th 326, 331.) But for this passing mention of receiving stolen property, the court was not asked to determine whether receiving stolen property is a species of theft.
People v. Frausto, supra, 180 Cal.App.4th 890 also is no help to the People. That case dealt with a firearm enhancement for attempted murder. The court quoted a prior opinion that "theft crimes such as robbery, burglary, and receiving stolen property continue beyond the time of the physical conduct constituting the offense until the perpetrator has reached a place of temporary safety." (Id. at pp. 901-902, quoting People v. Taylor (1995) 32 Cal.App.4th 578, 582.) Again, the court was not focused on whether the crime of receiving stolen property is sufficiently similar to theft to be included as one of the enumerated crimes in section 186.22, subdivision (e).
Finally, People v. Barker, supra, 91 Cal.App.4th 1166, also does not aid the People. That case dealt with the relevance of possession of recently stolen property to murder, and referred to " 'the context of theft crimes other than receiving stolen property.' " (Id. at p. 1174.) In short, the three cases on which the People rely, at most, merely show that receiving stolen property is a theft-related crime. That general proposition does not establish that receiving stolen property is interchangeable with theft under the specific theft statutes, such as sections 484 and 487. In other words, those cases do not stand for the principle that receiving a stolen vehicle is the same as grand theft of a vehicle for purposes of establishing a predicate crime under section 186.22, subdivision (e).
Similarly, our analysis is not altered by the People's reliance on the fact that section 496 "is codified within the larceny chapter of the Penal Code." That argument ignores the fact that section 10004 decrees that "[d]ivision, chapter, article, and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of any division, chapter, article or section hereof." Further, it does not change the fact that different elements are required for conviction under each offense.
Grand theft auto (§ 487, subd. (d)(1)) contains the element of theft--the stealing, taking away, or driving away of the personal property, with the intent to permanently deprive the owner of his or her property. (See § 484.) In contrast, receiving a stolen vehicle requires proof that the vehicle was stolen, the defendant knew the vehicle was stolen, and the defendant possessed the vehicle. (§ 496d, subd. (a).) The latter offense lacks the specific intent of the former and does not require the perpetrator to steal, take away, or drive away the vehicle from the owner. In short, these two crimes are different, and we find no indication that the Legislature intended to use them interchangeably under section 186.22, subdivision (e). Instead, the Legislature listed 33 specific crimes under that subdivision. It is not the province of this court to add another crime to the list.
For these reasons, we determine that J.U.'s first crime does not qualify as a predicate crime under section 186.22, subdivision (e).
The last offense the People rely upon to establish the second predicate crime under section 186.22 is Ortiz's involvement, as a juvenile, with a shooting at an occupied vehicle in June 2007. As a threshold matter, the parties disagree whether the jury could consider this incident as a predicate crime because the prosecutor elected not to rely on it. Appellants claim that, in response to an objection to the evidence, the prosecutor indicated that she was only going to offer the evidence of Ortiz's involvement in the June 2007 shooting to show Ortiz's "active gang status." The People contend the prosecutor's election does not matter because the jury was never informed that it could not consider the June 2007 incident. However, we need not resolve this dispute because we conclude that substantial evidence does not support a finding that the June 2007 incident could qualify as a predicate crime under section 186.22, subdivision (e).
A predicate crime must be committed by a member of the specific gang at issue, not just any gang. (§ 186.22, subd. (f) ["As used in this chapter, 'criminal street gang' means any ongoing organization . . . whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity."].) Two separate gangs cannot be treated as the same without a showing of "some associational or organizational connection." (People v. Prunty (2015) 62 Cal.4th 59, 72; see People v. Nicholes (2016) 246 Cal.App.4th 836, 846-848; People v. Franklin (2016) 248 Cal.App.4th 938, 949-951.)
Here, Mendoza testified that before 2008, Ortiz was a member of a different gang, the L.A. Villains, not Florencia 13. In April 2007, during a pedestrian stop that was memorialized in a field identification card, Ortiz "said that he was a member of the L.A. Villains and not a member of Florencia 13." It was not until January 2008 that Ortiz identified himself as "Peewee" from Florencia 13. Indeed, Mendoza testified that the "main reason" Ortiz changed his gang moniker from "Critter" to "Peewee" was that "he left one gang [L.A. Villains] and joined another [Florencia 13]."
The People do not dispute that Mendoza testified that Ortiz was a member of the L.A. Villains during June 2007 and did not change gang affiliation until sometime in 2008. Nor do they argue that the L.A. Villains were affiliated with Florencia 13. Instead, the People contend the jury could reasonably conclude Ortiz was a member of Florencia 13 in June 2007, because, when Ortiz asked the young man at the convenience store what gang he claimed, someone from inside the car yelled "Florencia" or "Florence" when the young man drove away. Perhaps that would be sufficient to create the inference that one of the three or four individuals in the car was a member of Florencia 13. However, without additional evidence, we are not persuaded that the jury could assume that Ortiz was a Florencia 13 gang member because an unidentified person yelled a gang name from the car Ortiz was standing outside of. Further, no crime occurred at the convenience store.
Madrigal points out some discrepancy regarding dates testified to by Mendoza and argues that Mendoza misspoke as to the date of one of his contacts with Ortiz. The record supports Madrigal's assertion, and the People do not address the issue whatsoever. As such, we do not discuss the issue further.
The subject offense occurred later that evening. Ortiz was driving a small compact truck and a passenger in the truck shot at a young man who was in a car outside a Jack in the Box. There is no evidence establishing the identity of the shooter or his gang affiliation, if any. There is no evidence that the shooter was one of the individuals who was in the vehicle at the convenience store earlier that evening. It appears that Ortiz was driving a different vehicle than the one that was involved at the convenience store incident earlier that night. Mendoza's testimony about the incident is somewhat ambiguous regarding whether the victim at the Jack in the Box was the same young man who Ortiz talked to at the convenience store. Simply put, there is insufficient evidence to prove that the shooting incident in June 2007 involved a Florencia 13 gang member. Without such evidence, that offense cannot be used as a predicate crime under section 186.22, subdivision (e).
In summary, on the record before us, substantial evidence supports only one predicate crime. Thus, Appellants' convictions under count 6 must be reversed and all true findings of gang enhancements, gang special circumstances, and the firearm enhancement as to Madrigal that relied on a gang finding must be stricken.
Because we reverse count 6 and the gang-related allegations and special circumstances, we do not reach the remaining issues raised by the Appellants, including whether the trial court improperly instructed the jury regarding predicate crimes and the prosecutor's alleged misstatement of the law during the rebuttal closing argument.
IV
THE FIREARM ENHANCEMENT
Section 12022.53, subdivision (a)(17), provides certain penalties for the use of a firearm during enumerated crimes, including any crime punishable by life imprisonment. Ortiz was convicted of first degree murder, a crime punishable by imprisonment in state prison for life. (§§ 187, subd. (a), 190, subd. (a).) Any person who "personally and intentionally discharges a firearm" in the commission of one of the enumerated crimes, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (§ 12022.53, subd. (c).) Any person who "personally and intentionally discharges a firearm and proximately causes great bodily injury, . . . or death, to any person other than an accomplice" in the commission of one of the enumerated crimes, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subd. (d).) Here, as to Ortiz, the court added the 25-years-to-life enhancement under subdivision (d) of section 12022.53 for count 1 as well as the 20-year term for the enhancement under subdivision (c) for count 2.
While this matter was pending, we granted Ortiz's motion to file a supplemental brief to address the impact of Senate Bill 620 (2017-2018 Reg. Sess.), which became effective January 1, 2018. Under Senate Bill 620, trial courts will have discretion to strike firearm enhancements brought under sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) Ortiz points out that these subdivisions were not effective at the time he was sentenced; therefore, the trial court did not have discretion to strike Ortiz's firearm enhancement under section 12022.53, subdivisions (c) and (d). He asserts Senate Bill 620 should be applied retroactively, and as such, we should remand this matter to allow the superior court to consider striking his firearm enhancement.
In their supplemental brief, the People concede People v. Francis (1969) 71 Cal.2d 66 (Francis) is controlling and requires retroactive application of amended section 12022.53, subdivision (h) to all nonfinal judgments.
In Francis, supra, 71 Cal.2d 66, the defendant was charged with selling and giving away marijuana. (Id. at pp. 69-70.) The matter was tried to the court and submitted on the preliminary examination transcript. (Id. at p. 70.) The court found defendant guilty of possession of marijuana as a lesser included offense. (Ibid.) At the time of the defendant's sentencing in Francis, possession of marijuana was punishable by a term of one to 10 years in prison. The court also had the authority to grant the defendant probation and require him to serve time in the county jail as a condition of probation. (Id. at p. 75.) The trial court sentenced the defendant to state prison. (Id. at p. 70.) After his conviction, but prior to the conclusion of his appeal, the Legislature amended the Health and Safety Code, authorizing a trial court to reduce a conviction for possession of marijuana to a misdemeanor, punishable by a term in county jail. (Francis, supra, at p. 75.)
The appellate court held the amendment should be given retroactive effect pursuant to In re Estrada (1965) 63 Cal.2d 740. (Francis, supra, 71 Cal.2d at pp. 75-76.) In arguing against remand, the People noted the trial court rejected the idea of placing the defendant on probation and to impose county jail time as a condition of probation. (Id. at p. 76.) In rejecting that contention, our high court stated, "[T]he mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation to a defendant eligible therefor and sentenced the defendant to prison." (Id. at p. 77.)
The People concede, and we agree, the same reasoning applies in the instant case and section 12022.53, subdivision (h) should be applied retroactively. However, the People argue that remand is not necessary because the record demonstrates the trial court would have sentenced Ortiz no differently even if it had the discretion to strike the firearm use enhancement, under section 12022.53, subdivision (h), at that time.
The People contend Francis, supra, 71 Cal.2d 66 might be at odds with People v. Conley (2016) 63 Cal.4th 646. Nevertheless, they concede Francis has not been overturned. Moreover, our high court recently cited Francis with approval. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-311.) As such, until or unless the California Supreme Court overrules Francis, we are required to follow that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We need not remand the instant matter if the record shows that the superior court "would not . . . have exercised its discretion to lessen the sentence." (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
The People emphasize that, at sentencing, the court was not sympathetic to Ortiz, found no circumstances in mitigation, and found several factors in aggravation (including the crimes involving great bodily violence, bodily harm, or threat of harm and the victims were particularly vulnerable). The People also note that the court found Ortiz had engaged in violence indicating he is a serious danger to society and had a troubling criminal history.
The People may be correct that the court would not have exercised any discretion, had it existed at the time of sentencing, to strike any of the firearm enhancements as to Ortiz. Nevertheless, it is undisputed that the court had no discretion, at that time, to strike the firearm use enhancements. The subsequently enacted section 12022.53, subdivision (h) provided the court with that discretion, greatly modifying the court's sentencing authority. Thus, even with the court's language and findings during sentencing, we cannot be sure that the court would not have exercised its new discretion under subdivision (h) to strike the firearm use enhancements. Therefore, in an abundance of caution, we remand this matter, among other reasons, for resentencing to allow the superior court to consider whether Ortiz's firearm use enhancements should be stricken.
DISPOSITION
Madrigal's convictions under counts 1, 2, 3, 5, and 6 are reversed. At the People's discretion, Madrigal can be retried on counts 1, 2, and 3.
Ortiz's convictions under counts 5 and 6 are reversed.
In addition, the true findings as to all criminal street gang enhancements, criminal street gang special circumstances, and the criminal street gang-principal firearm allegation should be stricken. We order the superior court to strike: (1) the gang enhancements under section 186.22, subdivision (d) on count 1 as to Appellants; (2) the gang enhancement under section 186.22, subdivision (b) on counts 2 and 3 as to Appellants; (3) the gang special circumstances under section 190.2, subdivision (a)(22) on count 1 as to Appellants; and (4) the enhancement under section 12022.53, subdivision (e) on counts 1 and 2 as to Madrigal. In addition, the superior court shall dismiss counts 5 and 6 as to both Madrigal and Ortiz.
We otherwise affirm the judgment. We remand this matter back to the superior court for further proceedings consistent with this opinion. The superior court must resentence Ortiz consistent with this opinion, including exercising its discretion under section 12022.53, subdivision (h).
The superior court is to prepare the necessary amended abstracts of judgment and forward them to the Department of Corrections and Rehabilitation.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. GUERRERO, J.