Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County No. 06WF3050, Thomas M. Goethals, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Mendoza.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Guadalupe Ruiz Ayala.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Fernando Mendoza and Guadalupe Ruiz Ayala appeal from judgments after a jury convicted them of attempted murder and two counts of aggravated assault and found true great bodily injury enhancements. Mendoza argues the trial court erroneously admitted one of the victim’s statements as a spontaneous declaration, the admission of Ayala’s statement to his sister and father violated his Sixth Amendment rights, the court erroneously admitted other acts evidence, and there was cumulative error. Ayala argues the trial court erroneously admitted the same other acts evidence, insufficient evidence supports the jury’s finding on the enhancement he personally inflicted great bodily injury on one of the victims, and the court erroneously instructed the jury on the great bodily injury enhancement. In supplemental briefing, Ayala contends the trial court erroneously imposed a criminal conviction assessment and ordered he register as a gang member. Mendoza and Ayala also join in each others arguments to the extent they accrue to their own benefit.
As we explain below, with the exception of one of Ayala’s sentencing claims, none of the contentions have merit. With respect to Mendoza, we affirm the judgment, and as to Ayala, we affirm the judgment as modified.
FACTS
Prelude to the Offense
Late one afternoon, Valentin Palacios (Valentin) and his cousin, Sadig Lozano, were standing in a liquor store parking lot when Ayala, his brother, Hugo Ayala (Hugo), Samuel Guevara, and Mendoza walked towards them. Mendoza angrily asked Valentin if he was in a gang, and Valentin responded, “No.” Mendoza asked Valentin if he had a problem with his friends, and Mendoza pulled out a gun and pointed it towards the ground. Mendoza told Valentin “not to mess with his friends.” When Officer Robert Harris approached in a marked patrol car, four of the men looked in his direction and fled. Valentin ran towards Harris yelling, “‘pistola, pistola,’” and Harris radioed in a description of the four men. Another officer caught three men, Ayala, Hugo, and Guevara in a nearby carport and they were arrested and released later that day; the fourth man escaped. Harris returned to the scene and interviewed Valentin who described the man with the gun—it was Mendoza.
The Offense
Late the next evening, Valentin, his brother David Palacios (David), and Lozano returned home from dinner and began walking from the parking lot to their apartment. Valentin and David saw Mendoza, Ayala, Hugo, and Guevara jumping over a wall. Lozano saw Mendoza and Guevara jump the wall. The posse yelled, “‘Now you’re not going to get away from us,’” and “‘Now you’re going to get it.’” The men were armed with knives and bats. The description of who carried which weapon varied slightly between the victims. Valentin saw Mendoza and Guevara with identical one-foot long knives, and Ayala and Hugo with bats. David saw Mendoza and Guevara with knives, and Ayala and Hugo with knives and bats. Lozano saw Mendoza with a knife and bat, and Guevara with a metal pipe.
Valentin, David, and Lozano ran towards their apartment. Lozano and David made it inside the apartment complex, but Mendoza and Ayala, and their confederates caught Valentin. Mendoza stabbed Valentin twice in the chest with a one-foot long knife. Mendoza, Ayala, Hugo, and Guevara hit Valentin. David went back to help his brother, and someone stabbed him in the arm. Lozano sought help.
Aftermath
When Officer Otto Escalante arrived at the scene, emergency response personnel were wheeling out Valentin on a gurney. Valentin who was upset, screaming, and in pain, had blood soaked gauze on his stomach and blood on his hands. Escalante asked, “‘Who did this to you?’” Valentin responded, “the person who did this to him was the one who had the gun, the one that got away, the one we didn’t arrest the day before.”
The trial court overruled Mendoza’s defense counsel’s hearsay objection on the grounds Valentin’s response was a spontaneous declaration.
When taken to the hospital, Valentin had emergency surgery which revealed a lacerated liver, diaphragm, and stomach wall; his injuries were life threatening. David suffered a slash to his arm and other bruises and abrasions; his injuries were not life threatening.
The next day in the early morning, Officer James Brown was on patrol when he saw Guevara drop something on the ground. Brown took possession of a knife in a sheath, and Guevara said it was not his. Guevara told Brown his name and walked to a nearby apartment. Brown radioed to dispatch and learned Guevara was wanted in connection with a crime committed hours before. Police officers went to the apartment and arrested both Guevara and Mendoza. Neither Mendoza nor Guevara could be excluded as contributors to DNA found on the knife.
Trial Court Proceedings
An information charged Mendoza and Ayala with the attempted murder of Valentin (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), the attempted murder of David (§§ 664, subd. (a), 187, subd. (a)) (count 2), the aggravated assault of Valentin (§ 245, subd. (a)(1)) (count 3), the aggravated assault of David (§ 245, subd. (a)(1)) (count 4), and dissuading a witness, Valentin, from testifying (§ 136.1, subd. (a)(1)) (count 5). As to counts 1, 2, 3, and 4, the information alleged Mendoza and Ayala personally inflicted great bodily injury on Valentin and David within the meaning of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code, unless otherwise indicated.
Prosecution Evidence
At trial, the prosecutor offered the testimony of Officer Robert Harris. Harris testified he was on patrol when he saw approximately eight men fighting in a liquor store parking lot. As he drove toward the store, four of the men looked in Harris’s direction and fled. Another man ran towards Harris yelling, “‘pistola, pistola,’” and Harris radioed in a description of the four men. Another officer caught three men, Ayala, Hugo, and Guevara in a nearby carport; the fourth man escaped.
The prosecutor also offered Valentin’s testimony. Valentin testified he was standing in the liquor store parking lot with Lozano, when Ayala, Hugo, Guevara, and Mendoza walked towards them. Mendoza asked Valentin if he was in a gang, and he responded, “No.” Mendoza asked Valentin if he had a problem with his friends and Mendoza pulled out a gun. Mendoza told Valentin not to mess with his friends. When a police officer approached in a marked patrol car, the four men fled, and Valentin ran towards the officer. With respect to the charged offenses, Valentin testified Mendoza stabbed him twice in the chest, and all four attackers hit him.
Lozano also testified for the prosecution. Lozano testified he and Valentin were standing in the liquor store parking lot when Guevara, Mendoza, Ayala, and Hugo approached them. Mendoza asked Valentin “what gang he was from,” and whether he had a problem with his friends. Mendoza pulled out a gun from his waistband. When someone shouted the police were coming, the men ran.
The prosecutor also offered David’s testimony about the stabbing and he gave a substantially similar account of what transpired in the parking lot. David testified all four of the attackers hit his brother Valentin.
The prosecutor also offered the testimony of Lidia V., who was 15 years old at the time of trial. Lidia had lived in the apartment complex for approximately 10 years and knew three of the attackers and the three victims. Lidia knew of Mendoza, but the first time she saw him was the night of the attack. Lidia explained she was at home sitting in her cousin’s car when she saw seven people running between the carport and her apartment complex. She saw Lozano, David, and Valentin running towards the apartment complex entrance. She also saw four individuals chasing them; she did not see any weapons. She got out of the car and entered the complex. She saw Mendoza and Ayala attack Valentin and David while Hugo and Guevara “stayed back.” Lidia saw a 12-to-15-inch shiny object in Mendoza’s hand. She also saw a six-inch shiny object in Ayala’s hand. Mendoza fought David while Ayala attacked Valentin. Mendoza hit David with his fists and with the shiny object one time. Ayala was hitting Valentin with his fists, and he hit Valentin one time with the shiny object, which she thought was a knife, because Valentin started bleeding. The attackers fled.
Mendoza’s Defense
Mendoza offered the testimony of only one witness, Harris, to attack Valentin’s credibility. Harris testified concerning Valentin’s statements on the day of the liquor store incident concerning whether he had been drinking.
Ayala’s Defense
Ayala offered the testimony of his sister, Nicolasa Ayala (Nicolasa). Nicolasa testified that on the day of the incident, Ayala was home when she returned home from school at approximately 3:15 p.m., and was there for the remainder of the afternoon. She said her father arrived home at about 6:00 or 6:30 p.m. and at 8:00 or 8:30 p.m., she, Ayala, and their father went to 7-Eleven in their father’s white van. She stated that after they left 7-Eleven, they drove to some nearby apartments to search for Hugo and there they saw many police cars.
On cross-examination, Nicolasa testified she knew her brothers, Ayala and Hugo, were arrested because someone brandished a gun at a liquor store. She explained her father and brothers did not discuss what happened at the liquor store. When the prosecutor asked her whether Ayala said who he was with at the liquor store, she said, “Sam [Guevara].” Mendoza’s defense counsel objected on the ground it was hearsay. The trial court sustained the objection as to Mendoza and stated: “Ladies and gentlemen, occasionally you may hear evidence that is admissible only against one defendant, and this is a[n] example of that. [Nicolasa] has just testified that someone, specifically... Ayala, made a statement en route home from Garden Grove [Police Department] on the evening of October 8th to his father. That statement is admissible and may be considered as evidence if you find it relevant against... Ayala. It is not admissible so you may not consider it as any sort of evidence against... Mendoza. [¶] That’s a situation, a good example of a situation in which evidence offered is admissible against one defendant and not the other. So sometimes you have to be analytical about that, but that is what is required.” When the prosecutor continued her cross-examination, the trial court interrupted: “Any statements that you hear attributable to... Ayala are admissible as evidence only against... Ayala. [¶] So what I told you earlier, unless I tell you otherwise, that only the statements you hear are only attributable to one defendant. As we move forward, should that happen, keep that in mind.” Ayala’s father corroborated Nicolasa’s direct testimony regarding Ayala spending the evening with him and his daughter, Nicolasa.
Ayala also offered the testimony of two witnesses, a mother and daughter, who resided in the apartment complex and knew Ayala. They testified that shortly after the incident, they saw Ayala’s father drive up in a white van and Ayala get out.
The jury convicted Mendoza and Ayala of counts 1, 3, and 4, and found true the enhancements as to counts 1 and 3. The jury acquitted them on counts 2 and 5. The trial court sentenced Mendoza to the middle term of seven years on count 1 and a consecutive three-year term on its associated enhancement for a total term of 10 years.
On that same day, April 18, 2008, the trial court sentenced Ayala to the low term of five years on count 1 and a consecutive three-year term on its associated enhancement for a total term of eight years in prison. However, because Ayala was17 years old at the time of the offenses, the court permitted Ayala to serve his time at the youth authority pursuant to Welfare and Institutions Code section 1731.5, subdivision (c). On April 24, 2008, Ayala filed a notice of appeal.
Post-Trial Proceedings
Although the supplemental reporter’s transcript on appeal does not include the transcript of the hearing, on August 15, 2008, the trial court conducted a hearing where it read and considered a letter from the Department of Corrections and Rehabilitation, “Division of Juvenile Justice” dated June 30, 2008. At this hearing, the trial court vacated Ayala’s sentence imposed on April 18, 2008, “[p]ursuant to [Welfare and Institutions Code section] 1732.6[, subdivision (b)].” The court set resentencing for October 2008.
The “Department of Corrections and Rehabilitation, Division of Juvenile Justice” letter dated June 30, 2008, was attached as an exhibit to the Attorney General’s supplemental letter briefing filed on June 16, 2009. We take judicial notice of the former letter. (Evid. Code, § 452, subd. (c).)
Resentencing was continued numerous times. Appellate briefing was complete in April 2009, and we scheduled the matter for oral argument.
In May 2009, we received a letter from Ayala’s appellate counsel indicating that on August 15, 2008, the trial court had vacated Ayala’s sentence. We ordered the matter off calendar and invited the parties to file supplemental letter briefing on what effect the trial court’s vacating his sentence had on this court’s jurisdiction to consider the appeal. The parties accepted our invitation. The next day, the trial court set Ayala’s new trial motion for June 26, 2009.
In June 2009, we ordered Mendoza’s and Ayala’s appeals severed and ordered the parties to file supplemental letter briefing advising this court of the events that transpired at subsequent hearings. On July 1, 2009, the trial court denied the new trial motion and sentenced Ayala to “state prison” for the low term of five years on count 1 and a consecutive three-year term on its associated enhancement for a total term of eight years in prison. This was the same sentence the court imposed the previous year, except the court ordered the sheriff to deliver Ayala to the custody of the “Department of Corrections, Reception Center.” The court ordered Ayala pay a $90 criminal conviction assessment fee pursuant to Government Code section 70373, subdivision (a)(1). The court also ordered Ayala to register as a gang member pursuant to section 186.30. After the hearing, the parties complied with our order concerning supplemental briefing.
On July 15, 2009, Ayala filed a notice of appeal from his resentencing. Thereafter, Ayala filed a motion to consolidate his two active appeals, which we granted. Because we have two final judgments and briefing is complete, on our own motion and for good cause we consolidate Mendoza’s and Ayala’s appeals for all purposes.
DISCUSSION
I. Spontaneous Declaration
Mendoza and Ayala argue the trial court erroneously admitted Escalante’s testimony that Valentin told him Mendoza, the person who pointed a gun at him the previous day, was the man who stabbed him because his statement was not a spontaneous declaration as it was made in response to police questioning. Not so.
Appellants do not make a claim pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.)
“To qualify for admission under the spontaneous statement exception to the hearsay rule, ‘an utterance must first purport to describe or explain an act or condition perceived by the declarant. [Citation.] Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. [Citation.]’ [Citations.] For purposes of the exception, a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. [Citation.] Although we have acknowledged that responses to detailed questioning are likely to lack spontaneity, we also have recognized that an answer to a simple inquiry may be spontaneous. [Citations.] The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter.” (People v. Morrison (2004) 34 Cal.4th 698, 718-719 (Morrison).)
“‘Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]’ [Citation.] The trial court’s determination of preliminary facts will be upheld if supported by substantial evidence. [Citation.]” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.)
Mendoza and Ayala contend Valentin’s statement was not spontaneous and was therefore unreliable because: (1) it was in response to Escalante’s question about who attacked him; and (2) Valentin’s recognition of Escalante demonstrated he had time to deliberate and reflect on his answer. We disagree.
In People v. Farmer (1989) 47 Cal.3d 888, 904 (Farmer), overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, the victim, who had been shot in the mouth and stomach, made a 911 call to a police dispatcher from the scene of the crime. He told the dispatcher he did not want to speak further because of his wounds. Nevertheless, the dispatcher continued to question the victim and he revealed the shooter’s race and age, and said he knew his assailant but could not remember his name. When the police arrived, one officer further questioned the victim about the shooting. The officer recalled he often had to “halt the questioning because of the victim’s obvious pain.” (Farmer, supra, 47 Cal.3d at p. 903 .) The victim gave the officer a more detailed description of the shooter and said it was one of his roommate’s customers. The Farmer court reasoned, “The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous.... [¶] On the record before us we conclude that the court did not err in admitting both conversations. It is true that we have rarely held the answers to such extensive questioning to be spontaneous utterances. [Citation.] Nonetheless, there is no doubt that [the victim] was excited, or perhaps more accurately, distraught and in severe pain. He was not merely an uninjured witness whose excitement might wane--and would thus be in a position to fabricate answers--through the sobering interrogation of an investigator. His responses were not self-serving. [Citation.] Nor were the questions suggestive. [Citation.] While he was being questioned, the intense pain of his gunshot wounds and the concern he rightfully had about his survival no doubt preoccupied him so that he could not have contemplated spinning a false tale.” (Id. at p. 904.)
In Morrison, supra, 34 Cal.4th at page 718, the first officer to arrive at the scene of a shooting observed the victim of gunshot wounds being comforted by another male. The officer asked, “‘[W]ho did it?’” The victim responded by naming three specific individuals. The Morrison court held “spontaneous statement of names as to “‘who did it’” described the event... perceived” and “courts have found or recognized that statements purporting to name or otherwise identify the perpetrator of a crime may be admissible where the declarant was the victim of the crime and made the identifying remarks while under the stress of excitement caused by experiencing the crime.” (Id.at p. 719.) The court added, “where the spontaneous declarant is available as a witness,... ‘the existence and truth of the declaration may be explored in an examination under oath.’ [Citation.]” (Ibid.)
We find Farmer and Morrison instructive here. As we explain above, a law enforcement officer’s question does not deprive the statement in question of its spontaneity, and courts have held an answer to a simple inquiry can be spontaneous. When Escalante saw Valentin he was bleeding profusely and was in intense pain, similar to the victim in Farmer. Escalante did not extensively question Valentin or ask him a suggestive question. As the officer did in Morrison, Escalante asked Valentin one question—“‘Who did this to you?’” He responded it was the man who had the gun the previous day, a description which clearly described an event Valentin perceived. As with the victim in Farmer, Valentin’s life-threatening injuries “no doubt preoccupied him so that he could not have contemplated spinning a false tale.” (Farmer, supra, 47 Cal.3d at p. 904 .) Additionally, Valentin was available as a witness and the existence and truth of his statements could have been explored in cross-examination. Finally, Mendoza and Ayala’s assertion Valentin’s recognition of Escalante demonstrated he had time to deliberate and reflect on his answer is meritless. Although recognition of a familiar face indicates lucidity, we cannot conclude it ipso facto demonstrates deliberation and reflection. We conclude Valentin’s severe injuries and panicked state left him in a position where he was unable to fabricate an answer to Escalante’s single, straight-forward question. Therefore, the trial court properly admitted Escalante’s testimony concerning Valentin’s statement.
None of the cases Mendoza and Ayala rely on to support their claim involve a severely wounded victim answering an officer’s single question as to who the perpetrator was, and all the cases were decided before Morrison. (People v. Hines (1997) 15 Cal.4th 997, 1034-1035, fn. 4 [testimony witness sounded “‘kind of nervous, scared like’” insufficient to show statement was the instinctive and uninhibited expression of the speakers actual impressions and belief]; People v. Fain (1959) 174 Cal.App.2d 856, 861 [after accident, defendant-declarant had strong motive to lie about who was driving because he had lost his driver’s license for speeding violations and had it returned only the day before]; People v. Keelin (1955) 136 Cal.App.2d 860, 870 [victim’s statements he had been shot three times by defendant made in response to questions over a considerable period of time and indicated reflection and attempt to conceal victim’s own criminal behavior]; Dolberg v. Pacific Electric Ry. Co. (1954) 126 Cal.App.2d 487, 489-490 [electric train motorman’s statements so long after accident indicate probability of deliberate design].)
II. 6th Amendment
Mendoza argues the trial court erroneously admitted Nicolasa’s testimony Ayala told her he was with Guevara at the liquor store when someone brandished a gun because it violated his Sixth Amendment and due process rights. We disagree.
We note Mendoza did not object on the grounds admission of the complained of evidence violated his federal constitutional rights. The Attorney General does not argue waiver/forfeiture.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton).
In Bruton, the United States Supreme Court held that a defendant is denied his Sixth Amendment right of confrontation when the confession of his nontestifying codefendant that names and incriminates him is introduced at their joint trial, even where the jury is instructed to consider the confession only against the codefendant. (Bruton, supra, 391 U.S. at pp. 124-126, 135- 136.) However, in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), the Supreme Court held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211, fn. omitted.) The Supreme Court reasoned that Bruton was a “narrow exception” to the general rule that a jury may be expected to obey a limiting instruction and that, in contrast to the “‘powerfully incriminating’” confession implicating the defendant in Bruton, which a jury might not be able to disregard, a confession that is not incriminating on its face but becomes so “only when linked with evidence introduced later at trial” is more likely to be disregarded when the jury is so instructed. (Richardson, supra, 481 U.S. at p. 208.)
Three years earlier, the California Supreme Court had reached a similar conclusion on nonconstitutional grounds. (Aranda, supra, 63 Cal.2d at pp. 528-530.) The issue before us though is one of federal constitutional law. (People v. Fletcher (1996) 13 Cal.4th 451, 465 (Fletcher).)
In Gray v. Maryland (1998) 523 U.S. 185 (Gray), the Supreme Court found a violation of the right to confrontation where the codefendant’s confession was redacted to replace the defendant’s name with blanks and the word “deleted.” The Supreme Court found this technique “similar enough to Bruton’s unredacted confessions as to warrant the same legal results.” (Id. at p. 195.) The court distinguished Richardson, observing that in Richardson the “inferences involved statements that did not refer directly to the defendant himself and which became incriminating ‘only when linked with evidence introduced later at trial,’” while in Gray the inferences involved statements that “obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” (Gray, supra, 523 U.S. at p. 196.)
In Fletcher, supra, 13 Cal.4th 451, the California Supreme Court considered a similar issue and held that “editing a nontestifying codefendant’s extrajudicial statement to substitute pronouns or similar neutral terms for the defendant’s name will not invariably be sufficient to avoid violation of the defendant’s Sixth Amendment confrontation rights. Rather, the sufficiency of this form of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at trial.” (Id. at p. 468.) The court observed that “[t]he editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.” (Id. at p. 456.)
At trial, Harris testified concerning the gun brandishing incident at the liquor store. Harris explained that after the incident, an officer caught Ayala, Hugo, and Guevara in a nearby carport. Valentin also testified concerning the gun brandishing incident. Valentin explained four men confronted him at the liquor store: Ayala, Hugo, Guevara, and Mendoza. Valentin stated after Mendoza asked him what gang he was from, Mendoza pulled a gun on him. Lozano testified similarly concerning the gun brandishing incident. Lozano testified he and Valentin were standing in the liquor store parking lot when Guevara, Mendoza, Ayala, and Hugo approached them. Lozano stated after Mendoza asked Valentin what gang he was from, Mendoza pulled a gun on Valentin. On cross-examination, when the prosecutor asked Nicolasa whether Ayala told her who he was with at the liquor store when someone brandished a gun, she replied, “Sam [Guevara].”
Relying primarily on People v. Archer (2000) 82 Cal.App.4th 1380 (Archer), Mendoza argues the trial court erroneously admitted Ayala’s statement to Nicolasa that he was with Guevara at the liquor store when someone brandished a gun because when linked with other evidence previously admitted, it implicitly implicated Mendoza in the crime. Let us clarify.
Mendoza asserts that Harris’s, Valentin’s, and Lozano’s testimony established he was with Guevara at the liquor store the day before the stabbing. He then states that Ayala’s statement to Nicolasa he was with Guevara at the liquor store implicitly implicated him because it corroborated Harris’s, Valentin’s, and Lozano’s testimony Guevara was at the liquor store, and therefore, the three prosecution witnesses were truthful Mendoza was at the liquor store and brandished a gun. Finally, Mendoza claims that because the evidence demonstrated he was with Ayala, Guevara, and Hugo when they confronted Valentin and Lozano the day before the stabbing, he must have also been one of the men who attacked Valentin, David, and Lozano. Recognizing Ayala did not “directly refer to [him],” Mendoza claims Ayala’s statement was incriminating. We disagree.
Ayala’s statement to Nicolasa that he was with Guevara at the liquor store when someone brandished a gun was not powerfully incriminating as it related to the offenses charged against Mendoza. We recognize there was other testimony that Ayala, Hugo, Guevara, and Mendoza were at the liquor store the day before the incident that led to the charges here. But Ayala’s statement he was with Guevara at the liquor store even when linked with the other testimony does not establish Mendoza was at the liquor store. We are inclined to agree with the Attorney General that it was in fact the only evidence that tended to prove Mendoza was not at the liquor store. And even more importantly, the fact Mendoza was at the liquor store the day before the attack does not alone establish Mendoza participated in the attack that led to the charges here. Based on the facts Ayala never mentioned Mendoza, and the jury would have had to make several speculative inferences, we cannot conclude Ayala’s statement was powerfully incriminating to Mendoza as it related to the charged crimes.
In Archer, codefendant’s redacted statement did not refer to the existence of defendant but made it clear that another perpetrator was involved. The statement indicated that, to set the victim up, codefendant brought the victim to an address which the jury already knew was defendant’s; that the victim was murdered at that location; that codefendant saw the body in the yard of that address a week later; and that the body was moved in a vehicle which the jury already knew had defendant’s license plate number. (Archer, supra, 82 Cal.App.4th at pp. 1384- 1385.) The court observed the ungrammatical manner in which the statement was redacted “raise[d] as strong a suspicion that names have been omitted as a neutral pronoun or symbol would have done” and that, even though it was redacted, the statement informed the jury that the other person occupied a leading role in the murder. (Id. at pp. 1389-1390.) Since the jury would necessarily conclude that this other person was defendant, the Archer court held that the statement, even as redacted, facially implicated the defendant.
Archer is inapposite because in that case there was evidence admitted prior to the codefendant’s statement that directly linked defendant to the crime. Here, as we explain above, Ayala’s statement to Nicolasa concerning an event that transpired the day before the crime did not directly implicate Mendoza.
Finally, Mendoza relies on Lilly v. Virginia (1999) 527 U.S. 116, to argue Ayala’s statement was unreliable and did not fall within a firmly rooted exception to the hearsay rule. Mendoza forgets the trial court sustained defense counsel’s hearsay objection as to him and admonished the jury the evidence was not admissible and it could not consider the evidence against him. Therefore, admission of Ayala’s statement to Nicolasa did not violate the Aranda-Bruton rule.
B. Crawford
In Crawford, supra, 541 U.S. at page 38, the United States Supreme Court addressed the issue of whether the admission of a spouse’s tape-recorded statement describing a stabbing without the defendant’s opportunity to cross-examine the spouse violated the defendant’s Sixth Amendment confrontation rights. The Court held out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. (Id. at p. 64.) The Court explained, however, that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.... We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” (Id. at p. 68, fn. omitted.)
Although the Court declined to provide a comprehensive definition of “‘testimonial[,]’” it did provide illustrations of statements that could be considered “‘testimonial’”: “‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[]’”; “‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[]’”; “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[]’”; and police interrogations. (Crawford, supra, 541 U.S. at pp. 51-52.) The Court stated that at the very least “‘testimonial’” means “testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.) In discussing whether the historical sources supported the conclusion there were exceptions to the general rule of exclusion of hearsay evidence, the Court noted most of the hearsay exceptions covered statements that were not “‘testimonial’” such as business records. (Id. at pp. 53-56.)
In People v. Butler (2005) 127 Cal.App.4th 49, 59 (Butler), two witnesses denied making prior statements to work colleagues that implicated defendant in the shooting. The court explained the witnesses’ statements “bear no indicia” common to the various testimonial settings identified by the Crawford court. The court reasoned no government official was present and the statements were made spontaneously to co-workers. The court added that it was not foreseeable the witnesses’ statements would be used in a prosecution because the Crawford court focused on statements given in lieu of oral testimony, such as an affidavit, or given to a government official in a formal statement. (People v. Rincon (2005) 129 Cal.App.4th 738, 757 [statement to friend lacked “legal or procedural formality”; declarant could not have reasonably believed witness would repeat his statements to the police].) Butler is instructive here.
Ayala’s statement he was at the liquor store with Guevara was made to his sister, Nicolasa, when they were in the car with their father. Needless to say, Ayala made his statement to a civilian family member, and not to a government official. Further, it was not foreseeable Ayala’s statement would be used in a prosecution as it was made casually to a family member in a semi-private location. Therefore, admission of Ayala’s statement to Nicolasa was not testimonial and did not violate his Sixth Amendment confrontation rights pursuant to Crawford.
Mendoza relies on the dissent in State v. Shafer (Wash. 2006) 128 P.3d 87, to support his claim admission of Ayala’s statement violated Crawford. That he relies on an out-of-state dissent is telling on the strength of his position. Because we have concluded admission of Ayala’s statement did not violate Aranda-Bruton or Crawford, Mendoza’s claim admission of the statement violated his due process rights is similarly unpersuasive.
III. Admission of Gun Brandishing Incident
Mendoza and Ayala argue the trial court erroneously admitted evidence of the gun brandishing incident at the liquor store the day prior to the attack because it was not relevant and it was unduly prejudicial. Again, we disagree.
Evidence Code section 350 states: “No evidence is admissible except relevant evidence.” 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.” (Evid. Code, § 210.) Although there is no universal test of relevancy, the general rule in criminal cases is whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution. (People v. Freeman (1994) 8 Cal.4th 450, 491.)
Although other acts evidence might be relevant to prove a material fact other than a defendant’s criminal disposition, this evidence is subject to exclusion pursuant to Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) Evidence Code section 352 authorizes the trial court to “exclude evidence if its probative value is substantially outweighed by the probability” its admission will create a substantial danger of undue prejudice. For purposes of Evidence Code section 352, “prejudice” means “‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]’” (People v. Heard (2003) 31 Cal.4th 946, 976.)
Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, a trial court may admit “evidence that a person committed a crime... or other act when relevant to prove some fact (such as motive,... intent,... knowledge, [or] identity...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b); Ewoldt, supra, 7 Cal.4th at p. 404.) “‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22-23.) A trial court’s rulings under Evidence Code sections 210, 352, and 1101 are reviewed for an abuse of discretion.
Here, the prosecutor moved to admit evidence of the gun brandishing incident, and Mendoza’s defense counsel objected. The prosecutor argued the evidence was relevant to count 5, the dissuading a witness charge, to prove identity and motive, and to rebut Ayala’s alibi defense. The trial court concluded the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b), on the issues of motive, intent, knowledge, and identity. The court acknowledged “the gun aspect is prejudicial” but concluded the probative value of the evidence outweighed its prejudicial effect. The court admitted Harris’s, Valentin’s, and Lozano’s testimony concerning the incident as we detail above.
Ayala claims his defense counsel objected to admission of the evidence when at the Evidence Code section 402 hearing, he indicated Ayala and Hugo were not cited, and they and Guevara were released thereby implying the evidence was not relevant to the issue of motive. The Attorney General does not claim Ayala forfeited appellate review of this issue, and thus, we will address the substance of Ayala’s claims.
“Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. [Citation.] Nonetheless, ‘[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.’ [Citation.] A ‘motive’ is defined as a ‘[c]ause or reason that moves the will and induces the action[,]’ ‘[a]n inducement, or that which leads or tempts the mind to indulge a criminal act.’ [Citation.] Motive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself [citation].
“The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. ‘Evidence of uncharged crimes is admissible to prove identity... or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity... or intent.’ [Citation.] ‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.’ [Citation.]... ‘The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.’ [Citation.]
“In contrast, ‘the intermediate fact of motive’ may be established by evidence of ‘prior dissimilar crimes.’ [Citation.] ‘Similarity of offenses [is] not necessary to establish this theory of relevance’ for the evident reason that the motive for the charged crime arises simply from the commission of the prior offense. [Citation.] The existence of a motive requires a nexus between the prior crime and the current one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes. [Citations.]” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.)
Mendoza argues the gun brandishing evidence was not relevant on the issues of identity, motive, or intent, and the evidence was unduly prejudicial because the jury would conclude he was a violent individual. Ayala contends the gun brandishing evidence was not relevant on the issues of motive, intent, and identity, and the evidence was unduly prejudicial and consumed an undue amount of time. Neither of their contentions have merit.
Evidence of the gun brandishing incident at the liquor store was probative on the issues of motive and intent. There was evidence Mendoza and Ayala, and two others confronted Valentin and Lozano in a liquor store parking lot. After Mendoza asked Valentin whether he was in a gang, and if he had a problem with his friends, Mendoza brandished a gun. Only when Harris arrived at the scene did Mendoza, Ayala, and the others flee. The next day, Mendoza and Ayala, and their confederates lay in wait for Valentin, David, and Lozano. As they walked to their apartment, Mendoza and Ayala and the others jumped the wall armed with knives and bats. The men yelled, “‘Now you’re not going to get away from us,’” and “‘Now you’re going to get it.’” The gun brandishing evidence was relevant to prove motive and intent because it tended to show Mendoza and Ayala attacked Valentin, David, and Lozano because they had failed the previous day. The evidence was relevant to prove the men intended to finish the job Harris had disrupted the preceding day. (Butler, supra, 127 Cal.App.4th at p. 59 [prior quarrel between defendant and group that included victim properly admitted to explain defendant’s motive for what appeared to be an unprovoked attack in which defendant killed the victim].) That there might have been other evidence suggesting a motive does not render the gun brandishing evidence irrelevant.
Additionally, aside from its value as Evidence Code section 1101, subdivision (b), evidence, the gun brandishing evidence was so inextricably bound with the charged offenses that it provided context for other testimony at trial. When emergency personnel wheeled Valentin to the ambulance, he told Escalante the man who stabbed him was the man who had the gun the previous day. To the extent Ayala suggests the trial court should have admitted this evidence in a truncated form or given the jury a limiting instruction, his defense counsel made no such requests.
With respect to their claims the gun brandishing evidence was more prejudicial than probative, we disagree. Evidence Mendoza and Ayala, and two others, confronted Valentin and Lozano, and Mendoza brandished a gun was no more prejudicial than the charged offenses. (Ewoldt, supra, 7 Cal.4th at p. 405.) Mendoza, Ayala, Hugo, and Guevara lay in wait and attacked Valentin, David, and Lozano with knives and bats. They brutally stabbed Valentin and David; Valentin was stabbed twice in the chest, and David was stabbed in the arm. Ayala goes to great pains to argue the gun brandishing evidence was not relevant to rebut his alibi, and then argues the evidence was prejudicial because it undermined his “extensive alibi evidence.” Aside from being disingenuous, the gun brandishing incident did not prevent the jury from believing Ayala’s alibi evidence.
Finally, with respect to Ayala’s contention admission of the gun brandishing evidence consumed an unreasonable amount of time, he does not provide any reasoned argument on this point so we need not discuss it any further. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [every brief should contain a legal argument and if none is furnished on a particular point, the court may treat it as waived].) Thus, admission of the gun brandishing evidence did not violate Mendoza’s or Ayala’s due process rights. Therefore, the trial court properly admitted evidence of the gun brandishing incident.
IV. Section 12022.7, subdivision (a)
A. Sufficiency of the Evidence
Ayala argues insufficient evidence supports the jury’s finding he personally inflicted great bodily harm on Valentin because there was no evidence he stabbed Valentin. Again, we disagree.
When reviewing a claim of insufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).) Before a judgment of conviction may be set aside for insufficiency of the evidence, “‘“it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached’”” by the trier of fact. (People v. Fowler (1987) 196 Cal.App.3d 79, 89.) Evidence is substantial when it is reasonable, credible, and of solid value. (Kraft, supra, 23 Cal.4th at p. 1053.)
Section 12022.7, subdivision (a), provides, “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” In People v. Cole (1982) 31 Cal.3d 568, 579 (Cole), the California Supreme Court stated the term “‘personally inflicts’” in section 12022.7 applies to those who directly perform the act that causes the physical injury to the victim. The court added it does not apply to those who assist someone else in producing injury, and who do not personally and directly inflict it themselves, such as blocking the victim’s escape or directing the attack. (Cole, supra, 31 Cal.3d at pp. 570-571.)
However, in People v. Corona (1989) 213 Cal.App.3d 589, 594, the court recognized a “group pummeling” exception to section 12022.7. In Corona, defendant participated in a group beating on two men, and the men suffered serious injuries. (Id. at p. 591) Defendant relied on Cole, supra, 31 Cal.3d 568, and argued there was insufficient evidence to prove he personally inflicted any particular injury. (Corona, supra, 213 Cal.App.3d at p. 593.) The court rejected this argument and held “when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement.” (Id. at p. 594.)
The holding in Corona, supra, 213 Cal.App.3d 589, was affirmed by our Supreme Court in People v. Modiri (2006) 39 Cal.4th 481 (Modiri). In Modiri, the California Supreme Court discussed the difficulty in scenarios involving group beatings to trace whose fist is aligned to a certain blow or whose foot could be traced to a particular kick. The court explained that to deter and punish gratuitous violence, the Legislature promulgated this enhanced punishment against all participants who personally cause, inflict, or contribute to the harm in an attack. (Id. at pp. 497-498.) The court clarified the rule as follows: “[P]hysical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants.” (Id. at p. 494.)
In People v. Dunkerson (2007) 155 Cal.App.4th 1413 (Dunkerson), the court applied the Modiri group assault theory to a defendant who was found to have personally inflicted great bodily injury in a group beating as alleged in section 12022.7, subdivision (a). The court found that CALCRIM No. 3160 correctly instructed the jury that it could find defendant personally inflicted great bodily injury when a defendant joins a group attack and directly applies force to the victim. (Dunkerson, supra, 155 Cal.App.4th at p. 1418.)
Judicial Council of California Criminal Jury Instructions (2008).
Relying on Valentin’s, David’s, and Lozano’s testimony Ayala claims insufficient evidence supports the jury’s true finding he personally inflicted great bodily harm on Valentin. He asserts the evidence overwhelmingly supports the conclusion Mendoza stabbed Valentin and there was no evidence he personally inflicted any stab wounds to Valentin. Not so.
Although Valentin testified Mendoza stabbed him twice, there was other evidence from which the jury could conclude Ayala took part in the group attack and applied force to Valentin. Both Valentin and David testified that all four men hit him. And Lidia testified that she saw Ayala with a six-inch shiny object in his hand. She explained that although she did not know it was a knife, she though it was a knife because after Ayala struck Valentin with it, Valentin began to bleed. The testimony of a single witness is sufficient for the proof of any fact. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) This was sufficient evidence for the jury to conclude Ayala took part in a group attack on Valentin and personally inflicted great bodily injury on him. It is not unreasonable for the jury to conclude that in the chaos of the attack, Valentin could not identity everyone who inflicted near mortal blows. That there was other evidence from which the jury could have concluded otherwise is not dispositive when addressing a sufficiency of the evidence claim on appeal.
B. CALCRIM No. 3160
Ayala claims the trial court erroneously instructed the jury with CALCRIM 3160 because there was no evidence Valentin clearly identified Mendoza as his attacker and there was no evidence Ayala personally inflicted any blows to Valentin. Again, we disagree.
“In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 885.) “‘“The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
The trial court instructed the jury with CALCRIM No. 3160 as follows: “If you find the defendant guilty of the crime[s] charged in [c]ount[s] 1, 2, 3 or 4 or the lesser crime[s] of attempted voluntary manslaughter you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Valentin... or David... during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] The People must also prove that Valentin... and[/]or David... were not accomplices to the crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] If you conclude that more than one person assaulted Valentin... and/or David... and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on either Valentin... or David... if the People have proved that: [¶] 1. Two or more people, acting at the same time, assaulted either Valentin... or David... and inflicted great bodily injury on him; [¶] 2. The defendant personally used physical force on either Valentin... or David... during the group assault; [¶] AND [¶] 3A. The amount or type of physical force the defendant used on either Valentin... or David was enough that it alone could have caused Valentin... or David... to suffer great bodily injury; [¶] OR [¶] 3B. The physical force that the defendant used on Valentin... or David... was sufficient in combination with the force used by the others to cause Valentin... or David... to suffer great bodily injury. [¶] The defendant must have applied substantial force to either Valentin... or David.... If that force could not have caused or contributed to the great bodily injury, then it was not substantial. [¶] A person is an accomplice if he is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he personally committed the crime if: [¶] 1. He knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime. [¶] The People have the burden or proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
As we explain above, there was sufficient evidence for the jury to conclude Ayala personally inflicted great bodily injury on Valentin. Therefore, the trial court properly instructed the jury on this theory.
VI. Cumulative Error
Mendoza and Ayala contend the cumulative effect of the errors requires reversal. We have concluded there were no errors, and thus, their claim has no merit.
VII. Sentencing
Ayala raises numerous contentions as to his sentencing. We will address each in turn. But before we do that, we must address the Attorney General’s assertion the trial court did not have jurisdiction to recall Ayala’s sentence because jurisdiction was vested in this court upon Ayala’s filing of his first notice of appeal.
A. Jurisdiction
The Attorney General does not, unfortunately, address Ayala’s substantive contentions. Instead, the Attorney General asserts the trial court erroneously recalled Ayala’s sentence, considered his new trial motion, and resentenced him. As we explain below, we disagree.
Section 1170, subdivision (d), provides: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” Section 1170, subdivision (d), authorizes a trial court to recall a sentence within 120 days of commitment even if an appeal from judgment is pending for reasons rationally related to sentencing. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1475.)
Welfare and Institutions Code section 1732.6, subdivision (b)(3), states: “No minor shall be committed to the Youth Authority when he or she is convicted in a criminal action for...: [¶]... [¶] An offense described in subdivision (b) of Section 707, if the minor had attained the age of 16 years of age or older at the time of commission of the offense.” Welfare and Institutions Code section 707 includes attempted murder and assault with means likely to produce great bodily injury.
Here, because Ayala was convicted of counts 1, 3, and 4, and he was 17 years old at the time of the offenses, he could not be committed to the youth authority. When the trial court was made aware of its error, the court vacated Ayala’s sentence on the 119th day. The trial court vacated the sentence to correct its error committing Ayala to the youth authority. This reason was rationally related to Ayala’s sentence and was not in excess of its authority under section 1170, subdivision (d).
The Attorney General complains that the trial court did not refer to section 1170, subdivision (d), when it vacated the sentence. True, the trial court did not refer to that section. The minute order indicates the court referred to Welfare and Institutions Code section 1732.6, subdivision (b), which is the section that prohibited Ayala’s commitment to the youth authority. That the court cited to the section that prohibited his initial sentence and not the section that authorized its correction of that sentence is of no consequence here. At the resentencing hearing, the court indicated it had recalled Ayala’s sentence pursuant to section 1170.
The Attorney General also complains the trial court erroneously considered Ayala’s new trial motion at the resentencing hearing. As the court denied that motion, we fail to see how the Attorney General was prejudiced, and we need not consider the propriety of the court’s action.
B. Government Code section 70373, subdivision (a)(1)
Ayala claims imposition of the criminal conviction assessment violated the ex post facto clause because Government Code section 70373, subdivision (a)(1), was not effective when the offenses were committed, and imposition of the assessment increased his punishment in violation of section 1170, subdivision (d). We reject his contentions.
Government Code section 70373, subdivision (a)(1), states, in relevant part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.”
Before argument, Ayala filed a motion to strike this argument and replaced it with his second supplemental brief because a case he relied on, People v. Castellanos (2009) 173 Cal.App.4th 1401, had been modified following a grant of rehearing and the portion he relied on had been deleted. We received his second supplemental brief, but did not file it. Because the first and second supplemental briefs are identical, with the exception of the deletion of Castellanos, we deny his motion to strike his first supplemental brief and we will treat it as if he did not rely on Castellanos.
“[A] prohibited ex post facto law is a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed.” (People v. High (2004) 119 Cal.App.4th 1192, 1195 (High).)In High, the court held a surcharge on fines for theft-related offenses imposed under section 1465.7 and a court facilities construction penalty imposed under Government Code section 70372 were penal in nature because they were calculated on size and severity of the base fine and they were termed a “penalty.” (High, supra, 119 Cal.App.4th at p. 1198.)
In People v. Alford (2007) 42 Cal.4th 749 (Alford), the California Supreme Court held section 1465.8’s security fee was not an ex post fact law because its purpose was to fund court security, a non-punitive objective, the amount of the fee was not dependent on the seriousness of the offense, and it was labeled a “fee” and not a “fine.” (Alford, supra, 42 Cal.4th 749 at pp. 755-759.)
In People v. Brooks (2009) 175 Cal.App.4th Supp. 1 (Brooks), the court addressed the identical issue we have here. The court reasoned the Government Code section 70373, subdivision (a)(1), assessment is more like the fee approved in Alford than the penalty and surcharge invalidated in High, because among other things Government Code section 70373, subdivision (a)(1)’s purpose is to maintain adequate funding for court facilities and not to punish, it is termed an “assessment” and not a fine or a penalty, and the assessment amount is not dependent on the seriousness of the offense. (Brooks, supra, 175 Cal.App.4th Supp. at p. 3.) The court held Government Code section 70373, subdivision (a)(1), is not punitive and was not a prohibited ex post facto law. (Brooks, supra, 175 Cal.App.4th Supp. at p. 3.) The Brooks court’s reasoning is sound, and we conclude Government Code section 70373, subdivision (a)(1), does not violate the ex post facto clause because it is not punitive in nature.
2. Increased Punishment
Section 1170, subdivision (d), prohibits a trial court from imposing a greater sentence than the initial sentence after the court recalls the initial sentence. On resentencing, the trial court sentenced Ayala to the same eight-year term it sentenced him to initially. Without citing to any authority, Ayala claims a sentence includes non-punitive matters such as testing, registration, and fees and therefore he received a greater sentence. As we explain above, Government Code section 70373, subdivision (a)(1), is nonpunitive, which means its purpose is not to punish. A greater sentence contemplates a more severe or longer prison term. The imposition of the Government Code section 70373, subdivision (a)(1), court facility assessment did not result in Ayala serving a longer prison term or otherwise punish him.
Ayala asserts the trial court erroneously ordered him to register as a gang member pursuant to section 186.30 because (1) it increased his punishment; (2) it violates his right to a jury trial pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466; and (3) insufficient evidence supports the court’s order. Because we conclude there was no evidence the offenses were gang related, we need not address his other contentions.
Section 186.30 provides: “(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. [¶] (b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [¶] (1) Subdivision (a) of Section 186.22. [¶] (2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true. [¶] (3) Any crime that the court finds is gang related at the time of sentencing or disposition.”
Here, the information did not include and the jury did not convict Ayala of street terrorism or find true any street terrorism enhancements. The prosecutor did not offer any gang expert testimony demonstrating Ayala was a member of a criminal street gang. And based on our review of the record, the trial court did not make any finding the offenses were gang related. We strike the trial court’s order requiring Ayala to register as a gang member pursuant to section 186.30.
DISPOSITION
We affirm Mendoza’s conviction. The order requiring Ayala to register as a gang member pursuant to section 186.30 is stricken and as so modified, we affirm Ayala’s conviction.
WE CONCUR: MOORE, J., IKOLA, J.