Opinion
H039349
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON ORTIZ PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC956273)
Following the issuance of our original opinion in this case, the California Supreme Court granted review, but deferred briefing (People v. Perez (S230408)). After deciding People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the court transferred review back to this court for reconsideration in light of that decision. Sanchez overturned existing California law regarding the admissibility of a gang expert's testimony relating the hearsay basis of the expert's opinion, and it laid out the analytical steps for resolving the admissibility of out-of-court statements under California's hearsay rule and under the confrontation clause of the Sixth Amendment to the United States Constitution, as elucidated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny.
A jury convicted defendant Ramon Ortiz Perez of second degree murder (Pen. Code, § 187, 189) and found true the allegations that in the commission of the offense he personally used a deadly or dangerous weapon—a knife (§ 12022, subd. (b)(1)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to 15 years to life on the murder count and to an additional one year for personal use of a knife. The court stayed a 10-year term for the criminal street gang enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant raises numerous challenges to the murder conviction and to the gang enhancement. We conclude that the jury's true finding on the gang enhancement must be reversed.
Along with his appeal, defendant filed a petition for writ of habeas corpus, which this court originally considered with the appeal. We denied the petition (In re Ramon Ortiz Perez (Sept. 30, 2015, H042098) [nonpub. opn.].), and the California Supreme Court did not grant review (S230479).
I
Facts Adduced at the Trial
In 2009, when he was just days shy of his 17th birthday, defendant stabbed to death Adam Esparza. At the time defendant was a member of Sur Santos Pride (SSP), a local Sureño street gang. On September 23, 2009, defendant was in a Jack in the Box restaurant in Milpitas with fellow gang member Eduardo Yanez and Sureño "wannabe," or affiliate, Felipe Luna. Yanez and Luna had worked at a construction site next door and went to the Jack in the Box while their paychecks were being prepared.
Defendant had a three-dot tattoo next to his left eye, which identified him as a Sureño. While defendant and his friends stood and waited for their food, Esparza, a member of a Norteño gang, entered the restaurant with his friend, Robert Lee; they intended to get a soda before going to the movies. Lee was a member of the Crips gang. According to Yanez, Crips are "okay" with both Sureño and Norteño gang members. Lee, who had driven Esparza to the Jack in the Box, parked his car in the adjacent lot, about 30 feet from the restaurant entrance.
Upon entering the restaurant, Lee went to the bathroom while Esparza passed by defendant and his friends, who were in line to order. Defendant did not know Esparza personally, but he recognized that Esparza was a Norteño because Esparza was "wearing a lot of red." Once Esparza saw defendant's three-dot Sureño tattoo, he started laughing and used his hands to "throw the four at" them, i.e., to show them a Norteño gang sign. While heading toward the soda machine, just as he passed defendant and his friends, Esparza said, "Oh, scrap. Scrap." "Scrap" is a derogatory term for a Sureño. Yanez described their reaction to the insult as something to the effect of, "Oh, let him. He's a little kid." Esparza turned and walked past them again; as he left the restaurant he was "mad-mugging" or "mean-mugging" defendant and his friends.
According to defendant, Esparza was looking kind of mad and "kind of making his face . . . like if he was tough."
Through the windows, defendant and his friends saw Esparza go to Lee's car parked just to the right of the entrance, open the trunk, and pull something out. Yanez was concerned that Esparza had gone outside to his car to get a weapon. Esparza returned to the restaurant wearing a red hat. Although he never ordered food, Esparza sat in the dining area next to a "short wall" partition, very close to defendant, who stood with Yanez and Luna on the other side waiting for their order. Esparza started laughing, "mad-mugging," and calling defendant "scrap." Defendant stared back and called Esparza "buster," a derogatory term for a Norteño.
According to Yanez, Esparza said something along the lines of, "What's up, you scrap" and "[w]hat are you staring at"; defendant responded, "Fuck that shit. Let's go outside dog." According to an independent eyewitness, defendant was saying, "One-on-one." Defendant went out of the door first, and Esparza and their respective friends followed.
A fistfight between defendant and Esparza took place in the handicap parking space behind some planter boxes, just outside the doors of the restaurant. Yanez and Luna stood outside near the restaurant door and watched while Lee stood near his car. Esparza, the larger of the two, started throwing punches; he gave defendant a bloody nose. Shortly after the fight began Esparza caused defendant to fall to the ground. A customer who was in the restaurant described the fight as follows: "A[:] I see one bigger person and one smaller person. The small person kind of, like, went down and, like, lunged at him. The guy—the bigger guy was on top. The victim was on top. So I thought it, like, over already. "Q[:] Did you see any punches be [sic] thrown? "A[:] Couple punches but not—not really. I mean, the first, I mean couple punches, but I knew from the second—what happened it wasn't going to be a fair—I mean, it was going to be a one-sided fight."
According to Lee, when defendant fell down he tried to pull his butterfly knife out from his pocket, but it fell to the ground; Yanez testified that it just fell out of defendant's pocket during the fight. As soon as Lee saw the knife, he shouted, "He's got a knife. No knives. No knives"; he heard other people say something akin to "[k]eep it clean." Yanez told defendant to put the knife away since it was supposed to remain a one-on-one fistfight that none of the others would have to join. Defendant put the knife back in his pocket and began walking toward his friends who were heading inside the restaurant. Esparza walked toward his car; he taunted defendant for having lost the fight. Defendant shouted back; he too claimed victory. Yanez told defendant, "Let's go fool. It's over. You guys got down. Let's bounce."
Initially, Yanez told the police that he never saw a knife, and later he said that defendant had pulled out his knife intentionally. Later still, he said that the knife fell just after Esparza pulled defendant's shirt up above his waist. Lee remembered that defendant tried to pull a knife from his pocket as he was grappling with Esparza and that it dropped to the ground.
Esparza walked toward Lee's car. Lee walked toward the front of the car, while Esparza approached the car from the rear. Defendant walked toward the car. Despite bleeding from his face and having lost the fight, defendant was smiling. Before Lee got to the car, defendant reached through the passenger window and grabbed a pack of cigarettes from the dashboard; he said, "[t]hey're my cigarettes now." Lee, who was by now in front of the car, told defendant that the cigarettes belonged to him. Yanez told defendant to give back the cigarettes because "some Crips are cool with us." Defendant said, "[a]ll right," and threw the cigarettes onto the front of the hood. When asked if defendant appeared angry at that point, Yanez said, "He was kind of mad and—and cool, just [in] between." Yanez told defendant, "Let's go," and defendant responded, "Yeah. Let's go." Esparza got into the passenger seat of Lee's car while Yanez and Luna went back toward the restaurant to pick up their food; defendant was following them. As defendant headed toward the restaurant, Esparza continued to shout insults through the open passenger window.
Defendant was just at the restaurant entrance, about 30 feet away from Lee's car, when he turned and walked back to where Esparza was sitting in the car. Lee tried to move his car, but another car was blocking him. Defendant reached in through the window and stabbed Esparza quickly and repeatedly with his butterfly knife while Esparza tried to move himself toward the driver's side to get away from the window. According to Lee, during the attack, defendant shouted "sur." Officer Dong described this as a way of "proclaiming who[m] he's affiliated with" while he was stabbing Esparza.
According to the investigating officer, Officer Dong, Lee told him that it was at the time of the stabbing that defendant shouted "sur."
Multiple witnesses described seeing defendant throw rapid punches or quick jabs through the car window before they realized defendant was stabbing Esparza with a knife. Defendant held the knife so that the blade protruded through his fist, between his fingers.
Defendant inflicted two fatal stab wounds to Esparza's heart and lungs in addition to six "defensive wounds," wounds that were consistent with Esparza's attempt to shield himself with his arms and legs. There were long shallow cuts or "incised wounds" to Esparza's hands and arm, plus a stab wound through his leg that exited at his knee.
Once Lee was able to move his car, defendant stopped stabbing Esparza. While backing up, Lee hit the wall behind him; he left the parking lot for the street. Lee drove about three-quarters of a mile away to a construction site on the other side of the street and asked the workers to call an ambulance for Esparza. While Lee was backing up the car, defendant stayed in the lot for a few seconds before running out to the street. Defendant said that he threw the bloody knife onto the freeway when he ran from the restaurant.
After the stabbing, Yanez and Luna remained inside the restaurant to get their food order. Defendant ran across the street to an office complex. Eventually, he emerged and ran across the office complex parking lot toward a grass berm in the street, which was in between the complex and Main Street. The berm was filled with day workers. As he ran toward the workers, defendant kept looking back at the restaurant while ducking down. One witness described defendant as having "a really stupid grin, kind of laugh." When one of the workers looked up, defendant motioned for him to be quiet by putting his finger up to indicate "[s]hush." A witness described the look on defendant's face as follows: "He was kind of smiling. Kind of a little nervous but smiling. Kind of laughing." Defendant maintained this expression as he ran "all through the parking lot." The witness told police that defendant had a "smirk on his face" and seemed excited, "like a child who had just misbehaved and was about to get into trouble."
When the police arrived, they asked Yanez to tell them what had happened. Yanez asked the police to arrest him and to exclude his name from any police report so he could tell them what he observed without appearing to be a "snitch." Defendant did not go home that evening; he said that he spent at least some of that time "hiding for a while" at his friend's house.
The day after the stabbing, at 4:45 p.m., police went to defendant's home to obtain a description for a search warrant. They saw defendant's car parked in front of the home. They waited and followed defendant when he left the house and drove away. Before police could initiate a stop, defendant saw them, pulled over, and waited for them to approach his vehicle before he took off on a high-speed, mile-and-a-half chase through a residential neighborhood that ended when he crashed into a parked car. Defendant abandoned the car; he fled on foot and jumped multiple fences before he broke into a house. He was arrested after he was discovered hiding in a closet.
While defendant was awaiting trial, Yanez was arrested for second degree burglary and placed in custody with other Sureño gang members. While in jail, Yanez was stabbed by Sureño and SSP gang members; he had a "green light" on him, meaning other gang members had to kill him.
Defendant's defense at trial was that he was guilty of the lesser included offense of manslaughter, not murder. Defendant claimed that Esparza had engaged in provocative conduct that triggered him to act impulsively in the heat of passion rather than with malice due to trauma he had suffered as child.
When he was in the first or second grade, defendant's father began to hit him to discipline him. His older brother Luis would fight with him—he would kick and punch defendant. When defendant was 14 years old, he was stabbed in the throat. He agreed he became a member of SSP because they were offering "love and acceptance"; he felt "protected" and "untouchable."
II
Discussion
A. Manslaughter Instruction
Just before counsel gave their opening statements, defense counsel sought a ruling from the trial court about whether it would instruct on manslaughter as a lesser included offense of murder if the defense could demonstrate that defendant committed the stabbing as a result of provocation by Esparza. Based on defense counsel's offer of proof, the trial court indicated it was likely to give such an instruction assuming the evidence at trial supported it. The court did instruct on the elements of heat-of-passion manslaughter as a lesser included offense of murder pursuant to CALCRIM No. 570 just prior to closing arguments.
The prosecutor had filed a motion in limine arguing that the court should not give an instruction on manslaughter because it was unsupported by the evidence. The trial court ruled that it could not make such a determination before hearing the evidence.
In addition to instructing on the elements of heat-of-passion manslaughter as a lesser included offense of murder, the trial court referenced manslaughter when it instructed on general principles of homicide pursuant to CALCRIM No. 500. The court instructed on the elements of murder in the first and second degree pursuant to CALCRIM Nos. 520 and 521 and gave the pattern jury instruction on provocation pursuant to CALCRIM No. 522.
CALCRIM No. 522 as given here states: "Provocation may reduce a murder from first degree to second degree and may reduce [a] murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first- or second- degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
In addition to the foregoing, the trial court gave two special instructions pertaining to provocation. The first instruction, "522A," was requested by the defense. It defined provocation as "to cause anger, resentment, or deep feeling in; to cause to take action; to stir action. Provocation may be anything that arouses great fear, anger or jealousy. The provocative conduct may be physical or verbal, and it may be comprised of [sic] a single incident or numerous incidents over a period of time."
During the discussion on jury instructions, defendant objected to a second special instruction on provocation, "522B," requested by the prosecutor, contending it was duplicative and argumentative. However, the trial court overruled the objection. The court noted that the instruction was consistent with the law as stated in People v. Johnston (2003) 113 Cal.App.4th 1299, 1303 (Johnston), which addressed the circumstance in which a defendant is an "initial aggressor." Noting that the defense had earlier objected to the words "initial aggressor," the trial court stated that the term "in my mind, had morphed into the 'person who starts a fight.' And then, on reflection, I looked at the language in People versus Johnston, and . . . they use 'instigates the fight.' So I thought that that was more in keeping with what that case was saying. So I changed the language I had originally proposed to the 'person who instigates a fight.' "
The trial court instructed the jury with "522B"; the court told the jury that a "person who instigates a fight cannot claim the benefit of provocation as to reduce murder to manslaughter." (Italics added.)
Defendant contends that in so instructing the jury the court "violated [his] right[s] to trial by jury and to a fair trial under the U[nited] S[tates] and California Constitutions." Defendant argues that "by instructing the jury that it could not find [him] guilty of manslaughter rather than murder if it determined he provoked the fight, the court prevented the jury from considering evidence that, regardless of who provoked the fight, [defendant] killed while in the heat of passion for which Esperanza [sic] was culpably responsible, and therefore [his] crime was manslaughter. In so doing, the court simultaneously: [(]1) prevented the jury from deciding a factual question raised by the evidence, [(]2) substantially undermined [defendant]'s capacity to present a defense, and [(]3) failed to correctly instruct jurors on the lesser included offense of manslaughter." We are not convinced.
Murder is the unlawful killing of a human being with malice. (§ 187.) A defendant who commits an intentional and unlawful killing lacks malice when the defendant acts as a result of a sudden quarrel or heat of passion. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) Such heat of passion or provocation is a theory of " 'partial exculpation' " that reduces murder to manslaughter by negating the element of malice. (Ibid.)
"The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively." (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) " ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' " (Moye, supra, 47 Cal.4th at p. 549.) "The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at p. 550.) Since the test of sufficient provocation is an objective one, a defendant's particular susceptibilities are irrelevant. (People v. Oropeza (2007) 151 Cal.App.4th 73, 83 (Oropeza).) " '[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Steele, supra, at pp. 1252-1253.)
A trial court is required to instruct the jury on " 'all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' " (People v. Rogers(2006) 39 Cal.4th 826, 866-867 (Rogers).) This sua sponte duty extends to instructions on manslaughter as a lesser included offense where there is evidence that the defendant acted upon sudden quarrel or heat of passion, negating malice. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162-164.)
As can be seen, the court instructed the jury on the lesser included offense of heat-of-passion manslaughter. Defendant's challenge appears to be about the giving of special instruction 522B.
"Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) The determination is based on " 'the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (People v. Carrington (2009) 47 Cal.4th 145, 192 (Carrington).) In other words, the correctness of jury instructions is determined from the entire charge by the trial court and not from consideration of part or parts of an instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 (Musselwhite).) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible [of] such interpretation.' [Citation.]" (Ramos, supra, at p. 1088.) We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given to them. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
As noted, the court delivered the standard jury instruction on voluntary manslaughter based on heat of passion provided in CALCRIM No. 570. Defendant makes no claim that there was anything improper in CALCRIM No. 570. However, the court added special instruction 522B on provocation, which finds its roots in Oropeza. As noted, the court told the jury that "[a] person who instigates a fight cannot claim the benefit of provocation as to reduce murder to manslaughter." In Oropeza, supra, 151 Cal.App.4th at p. 83, the court stated: "A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion."
Even though Oropeza addressed the need to instruct on voluntary manslaughter in light of the evidence, it correctly stated the legal effect that a defendant's aggression may have on his or her ability to claim that a killing occurred as a result of heat of passion. The law on this point was clarified and succinctly summarized by Justice Epstein in Johnston, supra, 113 Cal.App.4th at p. 1313, where the court concluded that a defendant who taunted his victim into a fight was "culpably responsible" for the altercation and not provoked by the victim even though the victim physically charged the defendant and the two engaged in mutual combat. Instruction 522B—"The person who instigates a fight cannot claim the benefit of provocation as to reduce murder to manslaughter"—is a correct statement of law. (Johnston, supra, at pp. 1312-1313.)
Instruction on law relevant to whether defendant or his victim was the initial aggressor was appropriate. Defendant claimed and testified that Esparza had instigated the attack by taunting him in the restaurant, but there was contrary evidence showing that defendant initiated both the fistfight and the stabbing. (See Rogers, supra, 39 Cal.4th at p. 866 [the trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request].) Thus, the trial court committed no error in giving a correct instruction on the applicable law. (Cf. People v. Carter (1993) 19 Cal.App.4th 1236, 1252 (Carter).)
Defendant claims that as a factual matter, the evidence demonstrated that Esparza was the aggressor who provoked defendant to commit manslaughter, not murder. Defendant's conclusion, however, was an issue for the jury to decide, and since, as just noted, there was evidence to support a contrary conclusion, the trial court did not err when it provided a neutral instruction on the relevant law. (Rogers, supra, 39 Cal.4th at p. 866; Carter, supra, 19 Cal.App.4th at p. 1252.)
Defendant claims that if the jurors assumed defendant initiated the fistfight, then the 522B instruction prevented them from determining whether defendant killed while in heat of passion after the fistfight had ended. We are not persuaded. Taking the instructions together as we must (Carrington, supra, 47 Cal.4th at p. 192), the jurors were provided with appropriate instruction on how to evaluate the evidence to determine whether defendant killed in the heat of passion. We must presume that the jurors understood and followed the court's instruction.
Jurors were instructed with CALCRIM No. 570, which, as given, told the jurors: "You must decide whether the defendant was provoked and whether the provocation was sufficient. . . . [¶] If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis." Moreover, defendant's requested special instruction, "522A," noted specifically that "provocative conduct may be physical or verbal, and it may [be] comprised of [sic] a single incident or numerous incidents over a period of time." (Italics added.) The plain language of the definition does not limit provocative conduct to a fight, nor does it preclude multiple provocations arising from "numerous incidents over a period of time" constituting "physical or verbal" conduct. Thus, read as a whole, the instructions did not bar jurors from considering whether defendant had cooled off after the fight and been provoked anew, or indeed, whether he had instigated a new altercation after the fistfight. (Carrington, supra, 47 Cal.4th at p. 192; Ramos, supra, 163 Cal.App.4th at p. 1088.) If defendant's quarrel is with the word "fight" in the instruction, it was incumbent upon him to request a specific limitation or modification. (See People v. Jennings (2010) 50 Cal.4th 616, 671 [a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language].)
On the premise that the jury was prevented from deciding a factual issue, defendant claims the instructional error was prejudicial in violation of his state constitutional right to due process and his federal constitutional rights to a jury trial and to present a defense. However, as previously noted, the jurors were not prevented from deciding a factual issue. The prosecution's special instruction did not require the jury to determine, based on its view of the evidence, that defendant was the aggressor, and it did not require the jury to accept the defense theory that it was Esparza who provoked the fight that led to his death. Defendant has not shown that it impaired the jury's ability to determine whether Esparza's conduct was sufficiently provocative to cause a reasonable person to act in the heat of passion and kill in response. (See Moye, supra, 47 Cal.4th at p. 551.)
Even if this court assumed for the sake of argument that the court erred in instructing with special instruction 522B, we would find the error harmless under any standard of review. Defendant's claim of provocation is based on his view that after the fistfight was over he was "ceaselessly derided and humiliated" with taunts such as "ha, ha ha, that's right. Got your ass whipped. Fuck you. That's why you got dropped. Fuck you, mother fucker . . . got your ass whipped . . . I beat you up, that's why you are bleeding from your nose, you pussy ass," and he was called "scrap," "the pejorative term used [to] denote Sure[ñ]o gang members." He asserts that having been punched repeatedly in the head and face, hurt, dizzy, and bleeding, he was extremely vulnerable to provocation and in a poor condition to exercise judgment.
Even though the trial court allowed the jury to consider whether defendant was provoked by this name calling, it need not have done so. On the evidence presented, the court would have been justified in refusing to instruct on the effect of heat of passion altogether. While the name calling following the fight might have satisfied the subjective component of heat-of-passion manslaughter as defendant so testified, it could not satisfy the objective component of heat-of-passion manslaughter. Name calling does not constitute legally sufficient provocation. (See People v. Najera (2006) 138 Cal.App.4th 212, 226, fn. 2 [victim's name calling and pushing defendant to the ground are not sufficiently provocative under an objective standard to cause an ordinary person of average disposition to act rashly or without due deliberation]; People v. Manriquez (2005) 37 Cal.4th 547, 586 [evidence that victim called the defendant a "mother fucker," and that the victim taunted him by repeatedly asserting that if defendant had a weapon he should take it out and use it, was insufficient to support instruction on voluntary manslaughter based upon the theory of a sudden quarrel or heat of passion]; People v. Enraca (2012) 53 Cal.4th 735, 759 (Enraca) [insults or gang-related challenges induce insufficient provocation to merit instruction].) As noted, the victim's conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Moye, supra, 47 Cal.4th at p. 550.) "The standard is not the reaction of a 'reasonable gang member.' " (Enraca, supra, at p. 759.)
Defendant testified that he had never been humiliated in this way before or suffered this sort of derisive attack on his manhood in a fight before.
In sum, special instruction 522B did not interfere with the presentation of defendant's defense to the jury, nor did it reduce the prosecution's burden of proof to establish malice. It did not prevent the jury from deciding a factual question raised by the evidence, and it was a correct instruction on the law. B. The Testimony of the Prosecution's Gang Expert
1. Gallardo's Testimony
Officer Gallardo testified as an expert about Norteño and Sureño gangs in general, their signs and symbols, the historical foundations of each gang, and how they cultivated fear in their neighborhoods. He also testified about the SSP gang. He indicated that the entirety of his knowledge of the SSP gang was based on police reports that he had read.
Defense counsel objected to Officer Gallardo, the prosecution's gang expert, on a number of grounds, including his lack of expertise concerning SSP. The court overruled the objection and found Officer Gallardo qualified as an expert on Hispanic criminal street gangs.
Officer Gallardo opined that in October 2009 there were 240 SSP members in Santa Clara County and that it was a formal, ongoing group with a common name, sign, and symbol. The gang had as one of its primary activities the commission of one or more of the enumerated crimes listed in section 186.22. The SSP gang operated in the area of Almaden and Virginia Street. Gallardo testified about predicate offenses, assault with a deadly weapon and robberies, committed by SSP members.
Officer Gallardo explained to the jury that some SSP members are active and some are not. Some people are simply associates who have not been jumped into the gang as members. Gang tattoos are worn to display membership in a gang and to instill fear and respect. As soon as a gang member see another, each sizes up the other. If they cannot tell whether a person is in a gang, they will approach the person and ask.
According to Officer Gallardo, defendant was contacted by San Jose police on January 28, 2006. At that time, defendant had a three-dot gang tattoo on his left wrist and was in the company of Roger Sanchez, a member of another Sureño gang. In Gallardo's opinion, a person who is not a gang member is not allowed to have such a tattoo, and a person who has a gang tattoo but who has not been jumped into a gang will be assaulted and "taught a lesson." Being jumped into a Sureño gang involves taking a 13-second assault by multiple gang members.
Officer Gallardo testified that, on February 8, 2007, defendant was approached and stabbed in the neck with a knife by a Norteño and that, prior to the stabbing, defendant was called a "scrap" and there was "a statement of 'norte.' " This incident occurred in the area of 2726 Kollmar Drive in San Jose, which was Sureño territory. Defendant did not cooperate with the police investigation because he did not want to be labeled a snitch in the gang. Gallardo stated that gang members do not cooperate with law enforcement because they will be seen as snitches.
Gallardo testified to a number of other police contacts with defendant. On May 20, 2007, Officer Neumer had a contact with defendant, and the officer noted defendant's tattoos, clothing, and statements and the fact that defendant was associating with gang members. On January 31, 2008, Officer Cruz had a contact with defendant, and the officer obtained information from defendant that he was with SSP and noted defendant's gang tattoos. On September 10, 2008, there was a contact between defendant and San Jose Police Officer Anjari. Officer Anjari noted his gang clothing. Gallardo further testified that, at some point, defendant acknowledged that he had been jumped into the Sureños.
Gallardo indicated that individuals are segregated by gang membership in the county jail; otherwise they would assault each other. When defendant was taken to the Santa Clara County jail, he identified himself as a Sureño. To drop out of a gang while in custody, one must be debriefed and then effectively segregated in protective custody. Defendant had not asked for such protective status. To leave a gang while in jail requires being a "snitch," which places a person's life at risk.
Recently, in People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), the California Supreme Court held that classification interviews that take place while a defendant is booked into jail constitute custodial interrogation for purposes of Miranda. (Id. at p. 527, 530-540.) The Supreme Court explained that "[g]ang affiliation questions do not conform to the narrow exception contemplated in [Rhode Island v.] Innis [(1980) 446 U.S. 291] and [Pennsylvania v.] Muniz [(1990) 496 U.S. 582] for basic identifying biographical data necessary for booking or pretrial services. Instead, they must be measured under the general Innis test, which defines as 'interrogation' questions the police should know are 'reasonably likely to elicit an incriminating response.' [Citation.]" (Id. at p. 538.) We do not know the circumstances under which defendant identified himself as a Sureño.
Based on the information regarding defendant's tattoos, the field information (FI) cards, and his investigation of defendant, Officer Gallardo believed defendant to be an active member of a criminal street gang. In his opinion, defendant committed the killing to benefit the gang by enhancing its reputation.
2. The Sanchez Decision
The Sixth Amendment's confrontation clause, which is binding on the states (Pointer v. Texas (1965) 380 U.S. 400, 403), provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford, supra, 541 U.S. 36, decided before defendant fatally stabbed Esparza in 2009, United States Supreme Court held that the Sixth Amendment's confrontation clause demanded the exclusion of testimonial out-of-court statements unless the witness was unavailable and the defendant had had a prior opportunity to cross-examine the witness. (Crawford, supra, at p. 68, see id. at pp. 53-54.) But nonhearsay is not subject to Crawford. (Crawford, supra, at p. 59, fn. 9.)
Sanchez recently overturned previously established California case law governing the admissibility of expert testimony relating the hearsay basis of the expert's opinion for ostensibly nonhearsay purposes. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) It set forth the following principles: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, at p. 686, fn. omitted; see id. at pp. 679 ["an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury"], 684 ["If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay"].)
In Crawford, the United States Supreme Court stated that the Sixth Amendment right of confrontation "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. [Citations.]" (Crawford, supra, 541 U.S. at p. 54.) Crawford stated that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds . . . ." (Id. at p. 62.) Subsequently, the United States Supreme Court found that "[t]he manner in which the [forfeiture by wrongdoing] rule was applied [at common law] makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying." (Giles v. California (2008) 554 U.S. 353, 361.)
Sanchez instructed: "Like any other hearsay evidence, [testimony relating case-specific out-of-court statements] must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)
But "[Sanchez] does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field." (Sanchez, supra, 63 Cal.4th at p. 685.) "In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality. . . . An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue." (Id. at p. 675.) Sanchez further stated: "Indeed, an expert's background knowledge and experience is what distinguishes him from a lay witness, and, as noted, testimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth. Thus, our decision does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Id. at p. 685.)
Sanchez also does not prevent an expert from properly testifying to his or her opinion. "An expert may express an opinion on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a).)" (Sanchez, supra, 63 Cal.4th at p. 675.) Gang experts "can give an opinion based on a hypothetical including case-specific facts that are properly proven." (Id. at p. 685.) "An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts. If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his opinion because the significance of certain facts may not be clear to a lay juror lacking the expert's specialized knowledge and experience." (Id. at pp. 676-677.)
"Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) In addition, under Sanchez, "[g]ang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code." (Ibid.) But "an expert cannot . . . relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) Sanchez recognized a distinction "between allowing an expert to describe the type or source of the matter relied upon [in forming an opinion] as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Ibid.)
If hearsay evidence conveyed by a testifying expert is also testimonial, its admission may be an error of federal constitutional magnitude. (Sanchez, supra, 63 Cal.4th at p. 685.) "[T]estimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses." (Id. at p. 694.) Sanchez stressed: "What [gang experts] cannot do is present, as facts, the content of testimonial hearsay statements." (Id. at p. 685.)
Sanchez established "a two-step analysis" for "addressing the admissibility of out-of-court statements." (Sanchez, supra, 63 Cal.4th at p. 680.) "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Ibid.)
3. Defendant's Confrontation Contentions
Citing Crawford, supra, 541 U.S. 36, defendant argues in his original briefs that the admission of the testimony of the prosecution's gang expert violated his Sixth Amendment rights to confrontation of adverse witnesses because the expert's knowledge of defendant's gang was based entirely on police reports. He states that police reports are "quintessential testimonial hearsay" and typically contain multiple levels of hearsay. He maintains that the only conceivable portion of Officer Gallardo's testimony that may not have been inadmissible testimonial hearsay was his testimony concerning "the rules by which gangs in general operate." He asserts that the confrontation clause claim was not forfeited by defense counsel's failure to object below, as asserted by respondent, because any objection on confrontation grounds would have been futile under (then) controlling authority.
In our original opinion, we reached defendant's confrontation clause claim and concluded that we were bound to follow the California Supreme Court's decision in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) (now disapproved in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13) under the authority of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. . . . The decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California."].) Gardeley accepted the rationale that an expert's testimony regarding the out-of-court statements forming the basis for his or her opinion was not admitted for the truth of the matter stated. (See Gardeley, supra, at p. 619 ["[A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact."]; see Evid. Code, § 1200, subd. (a).)
Sanchez disapproved Gardeley, supra, 14 Cal.4th 605, "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Sanchez also disapproved its "prior decisions concluding that an expert's basis testimony is not offered for its truth, or that a limiting instruction, coupled with a trial court's evaluation of the potential prejudicial impact of the evidence under Evidence Code section 352, sufficiently addresses hearsay and confrontation concerns. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 608, 54 Cal.Rptr.3d 453, 151 P.3d 292; People v. Montiel [(1993)] 5 Cal.4th [877,] 918-919; People v. Ainsworth (1988) 45 Cal.3d 984, 1012; People v. Milner (1988) 45 Cal.3d 227, 238-240; People v. Coleman [(1985)] 38 Cal.3d [69,] 91-93.)" (Ibid.)
In his supplemental brief filed after review of this matter was transferred back to this court for reconsideration in light of Sanchez, defendant additionally argues: "Since Gallardo's knowledge of SSP turned entirely on police reports, and police reports are both hearsay and testimonial hearsay, and often multiple levels of hearsay and testimonial hearsay, the entirety of Gallardo's testimony required to show SSP is a criminal street gang . . . turn[ed] on cases-specific hearsay, which was testimonial." He asserts that the officer's testimony "that [(]1) the primary activities of the SSP are statutorily listed offenses, [(]2) that members of the SSP committed the requisite predicate offenses and [(]3) that SSP included at least three members in October 2009" violated his right to confrontation. He further asserts that Officer Gallardo's "background testimony that the SSP [gang] was connected to the Mexican Mafia" was also testimonial, case-specific hearsay since the officer "had no percipient knowledge of the SSP [gang]." He also claims that Officer Gallardo's testimony to prove defendant's gang membership was based on "the truth of case-specific[,] out-of-court statements secured by police in unspecified police reports, field identification cards and investigation of [him]."
In a post-Sanchez supplemental brief, the Attorney General argues that defendant's hearsay and confrontation claims were forfeited by failing to assert them in the court below. The Attorney General concedes, however, that if defendant's confrontation claims were not forfeited, that Officer Gallardo testified to case-specific facts that constituted testimonial hearsay. The Attorney General agrees that Officer Gallardo related case-specific hearsay to the jury to prove that defendant was a member of the SSP gang. The Attorney General states that the officer's testimony "connecting the convicted defendants and their two predicate crimes [fn. omitted] to the SSP gang was based solely on police reports . . . , making this evidence 'testimonial' hearsay in violation of [defendant's] confrontation rights." But the Attorney General nevertheless maintains that any error in admitting case-specific hearsay was harmless beyond a reasonable doubt.
As we will explain, we find defendant's confrontation claims were not forfeited, and a least one confrontation error was not harmless.
4. Defendant's Confrontation Clause Contentions Not Forfeited
"Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 237-238.) "An objection in the trial court is not required if it would have been futile. [Citation.]" (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
At the time of defendant's 2012 trial, a confrontation clause objection based on Crawford and its progeny to out-of-court statements ostensibly not admitted for their truth would have been futile under California law. (See Sanchez, supra, 63 Cal.4th at p. 683, fn omitted.) For purposes of this appeal, we assume that defendant did not forfeit his confrontation claims by failing to object to specific testimony below. (But see Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 314 , fn. 3 ["The right to confrontation may, of course, be waived, including by failure to object to the offending evidence"].) Having concluded that defendant did not forfeit confrontation clause claims by failing to object below, it is unnecessary to address defendant's alternative argument that his counsel rendered ineffective assistance by failing to make such objections.
5. Officer Gallardo's Testimony Relevant to Prove Gang Enhancement
a. Elements of Gang Enhancement
Section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act" (§ 186.20), commonly referred to as the STEP Act (Act). Section 186.22, subdivision (b)(1), provides for a gang enhancement of a sentence when a felony is "committed for the benefit of, at the direction of, or in association with any criminal street gang."
Under the Act, " 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The Act defines a "pattern of criminal gang activity" as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ." (§ 186.22, subd. (e).) b. Officer Gallardo's Exclusive Reliance on Police Reports
Officer Gallardo testified that he was a police officer with the Milpitas Police Department, and he had not personally investigated an SSP case. SSP was not a Milpitas gang. His testimony concerning the SSP was based on police reports obtained from other agencies. As indicated, in investigating SSP, Gallardo relied exclusively on police reports. His sources of information were the police reports concerning the predicate offenses to which he testified (the assault with a deadly weapon and the second degree robberies), the stabbing offense of which defendant was a victim, and "a couple of other crimes and other predicate reports." Gallardo did not consult with any "experts in the field" regarding SSP. c. General Background Information regarding Sureños and SSP
Defendant challenges Officer Gallardo's testimony indirectly tying SSP to the Mexican Mafia as case-specific, testimonial hearsay because his "knowledge of SSP turned entirely on police reports" and he had no "percipient knowledge of the SSP" gang.
The record discloses that Officer Gallardo explained the general significance of the number 13 to Sureño street gangs: "The letter M is the 13th letter of the alphabet. And the M corresponds with the Mexican Mafia, a prison gang." Gallardo confirmed that the "Sureño movement" arose from the Mexican Mafia. Gallardo also testified that the Norteños identify with the letter N and the number 14, Norteños and Sureños' were rivals, and Norteños originated from another California prison gang, Nuestra Familia. He testified that before Nuestra Familia existed, the northern Hispanics were also part of the Mexican Mafia, which was formed in the 1950's and 1960's in prison to provide protection from other races. Gallardo indicated that SSP was a Sureño street gang.
As discussed, Sanchez distinguished expert testimony providing general background information from expert testimony relating case-specific facts of which the expert has no personal knowledge. (Sanchez, supra, 63 Cal.4th at pp. 675, 685.) It made clear that "[g]ang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code." (Id. at p. 685.)
Gallardo's testimony that the Mexican Mafia was a prison gang from which the Sureño movement arose did not relate case-specific hearsay and merely provided general background information. Likewise, his testimony indicating that Sureños and Norteños were rivals and that SSP identified with the Sureños was permissible as general background information within his area of expertise. d. Gallardo's Testimony as to Whether SSP Qualifies as a Criminal Street Gang i. Number of SSP Members
Assuming for the sake of argument that Gallardo was relating testimonial, case-specific hearsay when he testified to the number of SSP members in October 2009, we find any error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 (Van Arsdall).)
Sanchez stated that "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
At trial, Yanez testified that SSP was a Sureño street gang, that both defendant and he had been jumped into SSP, and that he knew defendant from the gang. Yanez stated that he had played handball with SSP members in his close circle and between five and 30 members showed up to play on any given occasion. Yanez also testified that he was stabbed by other SSP gang members (not including defendant) when he was in jail, and he knew all the persons who had assaulted him because they were all members of the same group with which he had associated before the stabbing.
Defendant testified at trial that he knew SSP was Sureño before he became an SSP gang member. He admitted to being an SSP gang member, and he testified that Yanez, one of his companions on the day of the killing, was another SSP gang member.
Thus, uncontroverted testimony based on witnesses' personal knowledge established that SSP was a group of at least three persons (see § 186.22, subd. (f)). ii. Officer Gallardo's Testimony Regarding Predicate Offenses
While the so-called predicate offenses relied upon to prove a pattern of criminal gang activity do not need to have been committed for the benefit of, at the direction of, or in association with the gang (Gardeley, supra, 14 Cal.4th at p. 621), "it is axiomatic that those who commit the predicate acts must belong to the same gang that the defendant acts to benefit." (People v. Prunty (2015) 62 Cal.4th 59, 76 (Prunty).)
The statutorily enumerated offenses include assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245) and robbery (§ 211-212.5 seq.). (§ 186.22, subds. (e)(1), (e)(2).) The trial court was asked to, and did, take judicial notice that on June 23, 2008, Ruben Ramirez was convicted of violating former section 245, subdivision (a)(1), in "docket No. CC809856" and that on November 10, 2008, Gonzalo Robles Rodriguez was convicted of six counts of second degree robbery in violation of section 211-212.5, subdivision (c), in "docket No. CC899927".
Officer Gallardo described the underlying circumstances of those offenses, and he testified that the perpetrators were SSP gang members. Defendant does not argue that the records of conviction constituted testimonial hearsay. Rather, he asserts that the "[d]ocumentation of the convictions allegedly constituting predicate offenses by SSP members is insufficient to prove these offenses were predicate offenses since proof of the convictions does not prove the persons convicted were SSP members." The Attorney General agrees that evidence connecting the crimes to the SSP gang was testimonial hearsay.
Sanchez gave the following example to demonstrate the distinction between case-specific hearsay, which a gang expert may not relate to a jury, and proper expert testimony providing general background information or opinion: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.)
Here, Officer Gallardo described the specific circumstances of the predicate offenses and Rodriguez's "three dots, one dot" tattoo, and he testified that Rodriguez was "identified as a[n] SSP gang member through tattoos." As we will explain, it appears that Gallardo was improperly relating testimonial hearsay when he described to the jury the details of the predicate offenses and indicated the basis for his opinion that Rodriguez, one of the perpetrators of the predicate robberies, was an SSP gang member.
Officer Gallardo's knowledge concerning the predicate offenses and their SSP gang perpetrators was derived exclusively from police reports concerning those crimes, which were prosecuted to conviction. In this case, as in Sanchez, the police reports relied upon by the expert were not admitted into evidence and they are not part of the record on appeal. (Sanchez, supra, 63 Cal.4th at p. 694.) But "formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to 'establish or prove past events potentially relevant to later criminal prosecution[.]' [Davis v. Washington (2006) 547 U.S. 813,] 822 . . . ." (Michigan v. Bryant (2011) 562 U.S. 344, 366 (Bryant).) "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency as in Davis and Bryant, or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.)
Nothing in the nature of the offenses described by Officer Gallardo suggested there had been any ongoing emergency to which law enforcement may have been responding when statements were taken. The robberies each involved a forcible purse snatching as a woman walked out of a store. The assault, which was gang-motivated, occurred in the vicinity of a liquor store. The crimes did not potentially involve statements from a dying murder victim taken by police "prior to the arrival of emergency medical services" (Bryant, supra, 562 U.S. at p. 366.) with the primary purpose, not of obtaining and preserving his testimony for trial, but of enabling police to meet an ongoing emergency of an armed shooter at large (Id. at pp. 349, 377-378.) They did not potentially involve statements taken from the victim or a witness of an in-home crime while the crime was still in progress. (Cf. Davis v. Washington, supra, 547 U.S. at p. 827 [domestic violence victim speaking to 911 operator as events were happening].)
At trial, defendant did not admit or stipulate that SSP qualified as a criminal street gang as statutorily defined, even though he admitted that he was an SSP member when he testified in his own defense. "To prove that a criminal street gang exists in accordance with [the] statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of the STEP Act's definition . . . ." (Prunty, supra, 62 Cal.4th at p. 67.)
Officer Gallardo's testimony relating the details of the predicate offenses and of Rodriguez's gang tattoos may well have added to Gallardo's credibility and lent credence to his statements, presumably reflecting his opinion, that perpetrators of the alleged predicate offenses were members of the SSP gang. There was no other evidence linking those crimes to members of defendant's gang. We are unable to conclude beyond a reasonable doubt that the confrontation clause error did not contribute to the jury's finding that the gang enhancement allegation was true. (Chapman, supra, 386 U.S. at p. 24; see also Neder v. United States (1999) 527 U.S. 1, 15-16 (Neder); Van Arsdall, supra, 475 U.S. at p. 684.)
The Attorney General suggests that defendant's testimony supplied evidence of additional predicate offenses and that Yanez's testimony regarding his stabbing in jail by fellow SSP members subsequent to the charged offense may also serve as evidence of a predicate offense. "Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity. (People v. Godinez (1993) 17 Cal.App.4th 1363, 1365, 1368-1370; People v. Olguin [(1994)] 31 Cal.App.4th [1355,] 1383.)" (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) In any event, the trial court's jury instructions specifically stated that, as used in the instructions, a pattern of criminal gang activity meant "[t]he commission or attempted commission or conspiracy to commit or solicitation to commit or conviction of Penal Code section 211, robbery, and Penal Code section 245, assault with a deadly weapon," within the stated time period. The prosecution impliedly elected to rely solely upon the crimes about which Officer Gallardo testified. The trial court's instructions also precluded the jury from concluding that the current offense was a predicate offense.
Accordingly, the true finding on the gang enhancement allegation (§ 186.22, subd. (b)(1)(C)) must be reversed. Our conclusion renders it unnecessary to address defendant's remaining contentions that Officer Gallardo related other testimonial hearsay in violation of the Sixth Amendment and those confrontation errors were not harmless as to the gang enhancement. e. Any Testimonial Hearsay Related by Gallardo Harmless as to Murder Conviction
"While gang membership is not an element of the gang enhancement [citation]" (Sanchez, supra, 63 Cal.4th at p. 698), evidence of a defendant's gang membership bolters a "prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove." (Id. at pp. 698-699.) FI cards like police reports may be testimonial. (Id. at p. 697.) "If the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial." (Ibid.)
Insofar as Officer Gallardo's testimony may have related testimonial hearsay derived from police reports or FI cards to prove defendant was an SSP member, any error was harmless beyond a reasonable doubt because uncontroverted evidence from other witnesses, including defendant himself, established that defendant had multiple gang tattoos and was a member of SSP. (Chapman, supra, 386 U.S. at p. 24; see also Neder, supra, 527 U.S. at pp. 15-16; Van Arsdall, supra, 475 U.S. at p. 684.) In light of that uncontroverted evidence, the overwhelming evidence of the gang context of the interactions between defendant and Esparza, and the undisputed evidence that defendant fatally stabbed Esparza, any testimonial hearsay conveyed by Gallardo as to the gang membership of other persons and crimes committed by other SSP members was harmless beyond a reasonable doubt with respect to the murder conviction. (Van Arsdall, supra, at p. 684.) 6. Due Process
In a related argument, defendant contends that the admission of the gang expert's testimony deprived him of a fair trial since the testimony was highly inflammatory and the prosecution's case was questionable.
"[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.) "To prove a deprivation of federal due process rights, [defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citation.]' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230 (Albarran).)
In Albarran, two Hispanic males shot guns at a house. Though there was substantial evidence that the sole defendant was a gang member, there was no evidence as to the identity of the other individual. (Albarran, supra, 149 Cal.App.4th at pp. 217-219.) Prior to trial, the court ruled that the proffered gang evidence was relevant not only to the gang enhancement but also to the issues of motive and intent as to the charged offenses. (Id. at p. 220.) The jury found the defendant guilty of the charged offenses and found the gang enhancement allegations true. (Id. at p. 222.) However, the trial court later found that there was insufficient evidence to support the gang findings and they were dismissed without prejudice. (Ibid.)
Albarran held that even if some of the gang evidence was relevant to the issues of motive and intent, other inflammatory gang evidence was admitted that was not relevant to the charged offenses. (Albarran, supra, 149 Cal.App.4th at pp. 227-228.) The Albarran court stated: "Certain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. . . . From this evidence there was a real danger that the jury would improperly infer that whether or not [the defendant] was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished." (Id. at p. 230.) Accordingly, the Albarran court concluded that the case was "one of those rare and unusual occasions where the admission of evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.)
Defendant argues that the gang expert's testimony "was admitted and the jury was instructed expressly to consider gang evidence to decide the central questions in this case: whether [defendant] killed in the heat of passion, and relatedly [sic], whether his testimony should be credited. [¶] Thus, the . . . highly questionable and inflammatory matter about [defendant]'s gang, the nature of [defendant]'s links to the gang and the conduct of its members, affected the jurors' determination[] [that defendant] was a member, and had been for several years, of a criminal street gang that stems from the Mexican Mafia prison gang." We are not convinced that the gang expert's testimony resulted in an unfair trial.
First, Officer Gallardo's general background testimony regarding the Sureños' and the Norteños' gang history, their enmity, their symbols, and their culture was properly admitted (see Sanchez, supra, 63 Cal.4th at p. 685), and that evidence was directly relevant to proving the alleged gang enhancement. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 (Hernandez) [no sua sponte duty to give limiting instruction on gang evidence, which jury could consider for gang enhancement].) "It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect.' " (People v. Olguin, supra, 31 Cal.App.4th at p. 1384 (Olguin).)
Furthermore, defendant, who sported a three-dot gang tattoo around his eye, made no efforts to conceal his gang membership, and indeed, he admitted his membership when he testified. He confirmed that the tattoo on his eye told everyone that he was a Sureño, and he agreed that he was "a walking billboard for Sureño street gangs." It appears that defendant's claim is, in essence, that the prosecutor was precluded from using gang evidence to argue motive. Such a position is contrary to law. (Hernandez, supra, 33 Cal.4th at p. 1049 [gang evidence admissible for motive even when gang enhancement not alleged].)
Defendant relies on two cases that are inapposite to support his due process claim. (See People v. Cruz (1964) 61 Cal.2d 861, 868 ([reasonableness of search and seizure of marijuana]; People v. Woodard (1979) 23 Cal.3d 329, 341, [erroneous admission of prior convictions of nonparty not bearing on truthfulness under former law]. Albarran, supra, 149 Cal.App.4th at p. 230 is distinguishable from this case since in Albarran there was no evidence suggesting the crime was committed for a gang-related motive other than the gang affiliation of the defendant. In defendant's case, the "gang overtones" (e.g., red hat, name calling, "mean-mugging," etc.) were undisputed.
Defendant does not identify any particular part of the gang expert's testimony that he finds objectionable as inflammatory. Defendant's membership in a gang was not in dispute as defendant admitted that he was a Sureño and member of SSP. More importantly, defendant's expert witness, Dr. Minagawa, assumed that fact and assumed that Sureños and Norteños were rival gangs and acknowledged that he was "familiar with the gang overtones of this case" before he opined about defendant's attack on Esparza. Dr. Minagawa referred to the initiation process in which gang members are "jumped in," consistent with Yanez's description of the initiation ritual and defendant's testimony of how he joined the gang. When asked if a person with a three-dot face tattoo was indicative of a Sureño "hard-core gang member," Dr. Minagawa responded, "Certainly more entrenched. Absolutely." Based on the evidence, defense counsel argued in closing that after defendant was stabbed he had "no choice but to become part of a gang."
Nearly all of the evidence on gangs and gang culture provided by Officer Gallardo duplicated testimony of other witnesses, including defendant himself. Defendant's own testimony about gangs and his role in the crime was far more incriminating than Officer Gallardo's opinions.
Yanez, defendant, and defendant's expert, Dr. Minagawa, described the significance of tattoos. Further, Dr. Minagawa talked about gang territory. Yanez testified as to signs and symbols with which SSP or Sureños identify, including the color blue, the number 13, and three dots, and he indicated that a person would yell "sur" when involved in an assault or a fight to give the gang credit. Even defendant testified to the meaning of "Sur Trece." Yanez testified specifically that defendant's face tattoo signaled his membership in SSP, acknowledging it as "a walking billboard."
Yanez talked about Sureño-Norteño violent confrontations, and even Dr. Minagawa conceded that violent confrontations increase respect and that they not only are an accepted part of gang culture but are encouraged. Dr. Minagawa agreed that the initial conflict between defendant and Esparza was gang motivated. Dr. Minagawa was not disputing that defendant was an SSP member. Dr. Minagawa agreed that it was generally "unacceptable in gang culture to let a physical affront go unchecked."
Defendant argues that the prosecutor used Officer Gallardo's testimony to shift the jurors' focus from his actual state of mind at the time of the stabbing to his gang membership. He asserts that the prosecutor repeatedly insisted to the jury that his gang membership demonstrated that he acted with malice aforethought, and the prosecutor maintained at several points that crediting the heat of passion defense would amount to granting him special dispensation from the law based on his gang membership. Defendant fails to explain how this made his trial fundamentally unfair.
"Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the meaning of section 186.22(b)(1). [Citations.]" (People v. Albillar (2010) 51 Cal.4th 47, 63.) "Generally, for the purposes of proving the gang enhancement, an expert witness is permitted to testify regarding the culture, habits, and psychology of criminal gangs." (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367; see Gardeley, supra, 14 Cal.4th at p. 617.) Sanchez does not change that. (Sanchez, supra, 63 Cal.4th at pp. 675, 685.) Moreover, "[c]ases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. [Citations.]" (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.)
Here, there was overwhelming, properly admitted evidence, aside from any testimonial hearsay related by the prosecution's gang expert, showing that defendant was an SSP member and that the fistfight between defendant and Esparza was gang-motivated, which was relevant to defendant's motive for stabbing Esparza and his intent in so doing. Defendant's due process right to a fair trial was not violated. C. Jury Instruction regarding Gang Evidence
The court instructed the jurors, pursuant to CALCRIM No. 1403, to consider gang evidence for limited purposes pertaining to elements of the gang enhancement, motive, heat of passion, and witness credibility. Defendant claims that the portion of the pattern instruction that permitted consideration of gang evidence to determine whether he acted in the heat of passion was erroneous and violated his constitutional rights to due process. He asserts that instructing the jury that it could consider gang evidence in determining whether he acted in the heat of passion resulted in his being tried based on irrelevant and inflammatory character evidence.
In full, the court told the jurors: "You may consider evidence of gang activity only for the purpose of proving or disproving the elements of the allegation contained in Penal Code section 186.22 and whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang related enhancement. [¶] Also, you may consider evidence of gang activity to decide whether the defendant had or did not have a motive to commit the crime charged and whether or not the defendant acted in the heat of passion. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and the information relied on by an expert witness in reaching their opinions. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." (Italics added.)
Respondent argues that defendant's claim of instructional error is barred under the doctrine of invited error as counsel stipulated to the instruction being given. "The invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction. [Citations.]" (People v. Moon (2005) 37 Cal.4th 1, 28.) We are not convinced that the record demonstrates that counsel intentionally caused the trial court to err, or that counsel acted for tactical reasons and not out of ignorance or mistake. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [" 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' "].) Accordingly, we will address this issue.
"Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (Ramos, supra, 163 Cal.App.4th at p. 1088.) The determination is based on " 'the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " (Carrington, supra, 47 Cal.4th at p. 192.) In other words, the correctness of jury instructions is determined from the entire charge by the trial court and not from consideration of part or parts of an instruction. (Musselwhite, supra,17 Cal.4th at p. 1248.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible [of] such interpretation.' " (Ramos, supra, at p. 1088.) We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given them. (People v. Castaneda (2011) 51 Cal.4th 1292, 1321.) When a criminal defendant alleges instructional error, our standard of review is de novo. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-280.)
The instruction with which defendant takes issue gives the jury the option to consider evidence of gang activity in deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes, enhancements, and special circumstance allegations, and it has been held to be "neither contrary to law nor misleading." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 (Samaniego).) There was evidence of gang activity that was relevant to defendant's motive and intent in fatally stabbing Esparza. (See Evid. Code, § 210.)
In essence, defendant claims that the jury had to determine whether he acted in the heat of passion without using gang evidence. He cites no authority for such a proposition, other than the general rule that evidence of a defendant's criminal disposition is inadmissible to prove he or she committed a specific crime. (Evid.Code, § 1101, subd. (a).) Defendant has correctly stated the general rule regarding character evidence, but he has not shown that CALCRIM No. 1403 permitted the jury to use gang evidence in a way the instruction pointedly says it should not be used.
Defendant uses the words "criminal proclivity" but we assume that he is referring to criminal disposition.
CALCRIM No. 1403 states in no uncertain terms that gang evidence may not be considered as proof of defendant's bad character or his criminal propensity. It allows such evidence to be considered only on the issues germane to the gang-related crimes and enhancements. (Samaniego, supra, 172 Cal.App.4th at p. 1168; cf. also People v. Garcia (2008) 168 Cal.App.4th 261, 275; People v. Martinez (2003) 113 Cal.App.4th 400, 413.)
We see nothing in CALCRIM No. 1403 that would have forced the jury to find that defendant did not act in the heat of passion because he was part of a criminal street gang. CALCRIM No. 1403 permits jurors, but does not require or direct them, to consider gang evidence for the limited purposes stated. In sum, we reject defendant's challenge to CALCRIM No. 1403 as given in this case. D. Alleged Ineffective Assistance of Counsel
Defendant claims that he received ineffective assistance of counsel because his attorney failed to request a limiting instruction that "the hearsay recited by Officer Gallar[d]o could be considered only to assess the validity of his opinions and not for its truth . . . ." He asserts that the instruction given concerning statements considered by an expert was insufficient because the jury likely did not understand that they could not consider police reports and online articles relied upon by Gallardo for their truth.
The court instructed the jury pursuant to CALCRIM No. 360, which is entitled "Statements to an Expert": "Experts testified that, in reaching their conclusions as expert witnesses, they considered statements made by others, including the defendant. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true." In a separate instruction regarding expert witness testimony, the jurors were conflictingly told: "You must decide whether information on which the expert relied was true and accurate."
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
A reviewing court need not assess the two Strickland factors in order or address both components. (Strickland, supra, 466 U.S. at p. 697.) If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.) Assuming for the sake of argument that defense counsel should have requested an instruction, we find no prejudice.
"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant's defense was that he committed heat-of-passion manslaughter and not murder. He asserted that the evidence that he joined a gang shortly after he was stabbed in 2007 was evidence of the "complex trauma" that he suffered that made him impulsively react to what he perceived was provocation. The defense did not dispute that defendant was a gang member. Moreover, defense counsel sought to introduce much of the same evidence about gangs through its own expert who "rel[ied] heavily on police reports, interrogation, that sort of thing,"—the same kind of evidence that defendant now claims required his counsel to request a limiting instruction.
As indicated, Dr. Minagawa, who had testified as a gang expert on at least 70 occasions, expressed no doubt that defendant was an SSP gang member. Moreover, as indicated, he agreed that the initial conflict between defendant and Esparza was gang motivated.
There was no question that defendant was heavily involved in gang-related activities. Defendant testified that twice he ran away from "the Ranch," a juvenile detention facility, and refused to comply with drug treatment conditions. Defendant testified, "Just around that time, I was already a Sureño. And all the programs they were sending me to was, [sic] like, nothing but Norteños. So, I mean, I couldn't be there, you know." Defendant acknowledged that his tattoos were gang related, and that he obtained them so the gang "would give me more drugs and, like, show me more, like, love, like, like I said." In addition to the overwhelming testimony on the issue, the prosecution introduced abundant physical evidence of the gang indicia seized from defendant's home and photographs of his numerous gang-related tattoos.
In addition, SSP gang member Yanez testified that SSP gang members regularly committed assaults to defend their territory. Yanez also testified about being stabbed in jail by fellow SSP members after he had spoken to police.
Finally, contrary to defendant's assertion, evidence of his guilt of the charged offense was overwhelming. His defense, which included his own testimony, was weak, further undermining any claim of prejudice. Without doubt, defendant's own testimony about gangs and his role in the crime was far more incriminating than Officer Gallardo's opinions.
We have already concluded that the jury's true finding as to the gang enhancement must be reversed. Defendant has failed to convince this court that there is a reasonable probability that the result of the proceeding would have been more favorable with respect to the charged offense or the enhancement allegation under section 12022, subdivision (b)(1), if his counsel had requested a limiting instruction permitting the jury to consider the hearsay recited by Officer Gallardo only to assess the validity of his opinions and not for its truth. E. Restriction of Cross Examination of Officer Gallardo
On direct examination, Officer Gallardo testified that he had concluded that defendant killed Esparza to advance the interests of defendant's gang based on defendant having yelled "sur." On cross examination, defense counsel asked Officer Gallardo if he had read defendant's statement to the police. "[Defense counsel] Now, when you arrived at your conclusions, you said that you also reviewed [defendant]'s statements; is that right? "[Officer Gallardo] Correct. "[Defense counsel] You reviewed his entire transcript; right? "[Officer Gallardo] Yes. "[Defense counsel] And you're aware, then that [defendant] told the police—"
The prosecutor objected and the parties approached the bench. In a recorded bench conference, the prosecutor stated that the "fact that [Officer Gallardo] relied upon it doesn't make it admissible. She—she doesn't get to . . . back door his statement." The court agreed and stated that "it's got to be reliable hearsay. The defendant's statements, when he's on trial, are not reliable. So I'm going to sustain the objection."
The next day the court revisited this issue and defense counsel told the court that the question she wanted to ask Officer Gallardo was, "Well, isn't it true that [defendant] told the police back in September 24th of 2009 that he didn't know what had happened? And isn't it true that he said he wasn't thinking clearly? And isn't it true that he said that he was mad? And isn't it true that he said that he was pretty pissed off? And isn't it true that he said that he wasn't thinking?" The court indicated that it would not have sustained an objection to a question eliciting the fact that defendant had not indicated to police that he had stabbed Esparza for the benefit of his gang. But the court concluded that its initial ruling had been correct.
Defense counsel thoroughly cross-examined Officer Gallardo regarding his reliance on Lee's statements to police. On cross-examination, Gallardo acknowledged that it concerned him that Lee gave some misleading statements to police about Esparza's gang membership and that Lee was not entirely honest with police during his first interview. Defense counsel also elicited Gallardo's testimony that he had reviewed the entire transcript of defendant's statements. Defendant nevertheless argues that barring cross-examination of Officer Gallardo about the evidence that Gallardo rejected in determining that defendant killed Esparza to advance a gang violated his right to cross-examine witnesses.
"Cross-examination—described by Wigmore as ' "the greatest legal engine ever invented for the discovery of truth" ' [citations]—has two purposes. Its chief purpose is 'to test the credibility, knowledge and recollection of the witness. [Citations.] [¶] The other purpose is to elicit additional evidence.' [Citations.] Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an 'absolute right,' not merely a privilege [citations], and denial or undue restriction thereof may be reversible error. [Citation.]" (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.) Since cross-examination implements the constitutional right of confrontation, a trial court should give the defense wide latitude to cross-examine a prosecution witness to test credibility. (People v. Cooper (1991) 53 Cal.3d 771, 816 (Cooper).)
Nevertheless, trial courts retain the authority to restrict cross-examination. (People v. Harris (1989) 47 Cal.3d 1047, 1091.) "The confrontation clause 'guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [Citations.]" (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3; see also Van Arsdall, supra, 475 U.S. at p. 679; Delaware v. Fensterer (1985) 474 U.S. 15, 20 (per curiam); Cooper, supra, 53 Cal.3d at p. 817.) " '[U]nless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [a witness's] credibility" [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 494; see People v. Brown (2003) 31 Cal.4th 518, 545-546; Van Arsdall, supra, at p. 680.) Further, even if the court abuses its discretion by restricting cross-examination, the error is subject to harmless error analysis under Chapman, supra, 386 U.S. 18 "based on factors such as: 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' [Citations.]" (People v. Sully (1991) 53 Cal.3d 1195, 1220; see Van Arsdall, supra, at p. 684.)
Generally, "the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence," including the evidentiary hearsay rule. (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) But "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Ibid.)
We assume for the sake of this argument that the court erred in restricting defense counsel from cross examining Officer Gallardo on things he had discounted in forming his opinion that defendant stabbed Esparza to benefit his gang. However, in defendant's next argument that the court "violated" Evidence Code section 721, we conclude that the court did not abuse its discretion in preventing defense counsel from eliciting defendant's out-of-court statements to the police about what he was thinking when he stabbed Esparza.
Although Officer Gallardo opined that defendant stabbed Esparza to benefit the criminal street gang, Dr. Mingawa testified that there were two explanations for the stabbing. He explained that one was to benefit the gang, that defendant was "beaten down" and "humiliated" and he could not stand that and retaliated to show he was not a weak person for the gang. The other explanation was that he reacted emotionally after being beaten down, he reacted "to the personal insult and attacked the victim"—"just reacting personally." When asked by defense counsel what he had considered to find that the one explanation—that defendant reacted emotionally—was more reasonable, Dr. Mingawa stated that when he read the report of defendant's interrogation by the police, defendant said "he wasn't thinking"; he did not say "I was thinking about how my gang was going to perceive this." Thus, defense counsel was able to elicit from Dr. Mingawa the very essence of the testimony that she wanted to elicit from Officer Gallardo.
As instructed, the jury was free to reject Officer Gallardo's opinion regarding whether defendant had fatally stabbed Esparza to benefit his gang (see CALCRIM No. 332 [opinions of experts must be considered, but the jury is not required to accept them as true or correct]) and to accept Dr. Minagawa's testimony that the stabbing was not done for the benefit of defendant's gang, but because defendant reacted emotionally on a personal level. Since defense counsel was able to elicit the evidence of what defendant said about the stabbing from Dr. Minagawa, eliciting the same evidence from Officer Gallardo would have been cumulative. Furthermore, given the strength of the prosecution's case on the gang overtones surrounding the stabbing, there was overwhelming evidence from which the jury could find that the stabbing was committed for the benefit of a criminal street gang. Defendant's entire encounter with Esparza, a stranger, involved gang-related taunting before it culminated in the stabbing.
If the court's restriction on defense counsel's cross-examination of Officer Gallardo constituted error, it was harmless beyond a reasonable doubt. F. Evidence Code Section 721
As noted, Officer Gallardo opined that defendant stabbed Esparza to enhance his gang's reputation. This conclusion was inconsistent with defendant's defense that he stabbed Esparza in the heat of passion. Defendant argues that the trial court "violated" Evidence Code section 721 by sustaining the prosecutor's hearsay objection to defense counsel's attempt to elicit defendant's statements to the police from Gallardo.
Evidence Code section 721, subdivision (a), provides: "Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion." In essence, defendant argues that under Evidence Code section 721, subdivision (a)(3), defense counsel should have been allowed to cross examine Officer Gallardo as to the matter on which his opinion was based and the reasons for the opinion, including whether he considered matters inconsistent with his opinion.
Defendant cites no case, and our research has found none, holding that a court "violated" Evidence Code section 721 by precluding cross-examination of an expert witness as to a defendant's out-of-court statements that were reviewed by the expert. Under Evidence Code section 721, a witness who testifies as an expert may, of course, be cross-examined to the same extent as any other witness. While the scope of cross-examination of an expert is "broad" (People v. Doolin (2009) 45 Cal.4th 390, 434), it is not boundless.
While defendant's statements to the police regarding the incident were directly relevant to the charge of murder and the defense theory that he acted in the heat of passion, the statutory right of cross-examination under section 721, subdivision (a)(3), pertains to "the matter upon which [the expert's] opinion is based." If Gallardo's opinion was not based on defendant's extrajudicial statements to police as suggested by defendant's argument, then the trial court did not abuse its discretion under that statutory provision by limiting cross-examination to prevent defense counsel from eliciting those statements. (See People v. Peoples (2016) 62 Cal.4th 718, 766 (Peoples).)
Even if Officer Gallardo took defendant's statements into account in forming his opinion, under the pre-Sanchez paradigm, hearsay evidence relied on by an expert in forming an opinion was viewed as being admitted for nonhearsay purposes (see Sanchez, supra, 63 Cal.4th at pp. 679, 683; Gardeley, supra, 14 Cal.4th p. 619) and "Evidence Code section 352 authorize[d] the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]" (People v. Montiel, supra, 5 Cal.4th at p. 919, disapproved in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) "California law [gave] the trial court discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness as a partial basis for his opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein. [Citation.]" (People v. Coleman (1985) 38 Cal.3d 69, 91, disapproved in Sanchez, supra, at p. 686, fn. 13.)
Defendant has not demonstrated that the trial court abused its discretion under Evidence Code section 721 by limiting cross-examination of Gallardo under previously applicable law. Contrary to defendant's contention, Evidence Code section 721 did not compel the admission of extrajudicial statements of a defendant or override the trial court's traditional discretionary authority to weigh the probative value of evidence against the potential for prejudice.
Further, in the court below, defendant did not proffer any hearsay exception that made his own statements to police admissible for their truth. Under Evidence Code section 1252, which makes the hearsay exception for a statement of state of mind inapplicable "if the statement was made under circumstances such as to indicate its lack of trustworthiness," the court could reasonably conclude that such hearsay statements, even if admissible under the state of mind exception, could be excluded as unreliable. (See Peoples, supra, 62 Cal.4th at p. 758; People v. Edwards (1991) 54 Cal.3d 787, 819-820.)
As previously explained, under Sanchez, an expert may no longer testify to case-specific out-of-court statements to explain the bases for his opinion "unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) The expert may only "describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Ibid.)
We reject defendant's assertion that the court abused its discretion under Evidence Code section 721 by preventing defense counsel from cross-examining Officer Gallardo about the specific out-of-court statements he rejected in determining that defendant stabbed Esparza to advance his gang. G. Defendant's Admission
As noted, according to Lee, defendant yelled "sur" at the time of the stabbing. As respondent explains, while defendant did not dispute his gang membership or that he and Esparza exchanged gang-related insults before the stabbing, he denied any memory of events surrounding the stabbing, whereas Lee reported that in fact defendant yelled "sur." Lee's testimony regarding defendant's statement was inculpatory.
CALCRIM No. 358 instructs the jury to "[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded." It appears that it was not given in this case. Further, it appears that defendant did not request such an instruction.
Defendant contends and respondent agrees that the court erred in failing to instruct the jury that defendant's admission must be viewed with caution. Respondent contends, however, that defendant did not suffer reversible prejudice.
At the time of defendant's trial, the courts had a sua sponte duty to give this instruction whenever a defendant's out-of-court admissions were at issue. (People v. Diaz (2015) 60 Cal.4th 1176, 1184-1185 (Diaz).) The Diaz court held that there is no longer a sua sponte duty to give CALCRIM No. 358 in any case where the issue arises. (Diaz, supra, at p. 1190.) However, the Diaz court declined to decide whether its elimination of the sua sponte rule as to CALCRIM No. 358 was retroactive. (Diaz, supra, at p. 1195.) The Diaz court concluded that the trial court's failure to give the instruction was harmless because it was not reasonably probable the jury would have reached a more favorable result had it been given. (Id. at pp. 1195-1196.)
We need not decide whether the elimination of the sua sponte rule for CALCRIM No. 358 is retroactive because we conclude that the trial court's failure to give the instruction in this case was harmless since it is not reasonably probable the jury would have reached a more favorable result had it been given. (Diaz, supra, 60 Cal.4th at p. 1195 [applying the People v. Watson (1956) 46 Cal.2d 818, 835-836 (Watson) standard, rather than the more stringent standard of review for federal constitutional error].) In evaluating prejudice, we examine the record to see whether there was a conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. (People v. Dickey (2005) 35 Cal.4th 884, 905 (Dickey).)
Defendant admitted stabbing Esparza, but claimed no memory of the words exchanged during the stabbing; and his defense was that he acted in the heat of passion and not to benefit his gang. Thus, in essence he denied saying "sur."
Where there is no conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, the failure to give the cautionary instruction is harmless. (Dickey, supra, 35 Cal.4th at p. 906.) The instructions provided by the trial court concerning witness credibility informed the jury of the need to evaluate the witnesses' testimony for possible inaccuracies and determine whether the statement was in fact made. The jury was instructed with CALCRIM No. 226, which sets out the numerous factors the jury may consider in deciding whether a witness's testimony is credible. As our Supreme Court explained in People v. McKinnon (2011) 52 Cal.4th 610, "when the trial court otherwise has thoroughly instructed the jury on assessing the credibility of witnesses, we have concluded the jury was adequately warned to view their testimony with caution." (Id. at p. 680.) We so conclude in this case. H. Alleged Insufficiency of the Evidence that SSP is a Criminal Street Gang
Defendant claims there was insufficient evidence that he belonged to a criminal street gang, defined in section 186.22, subdivision (f) "having as one of its primary activities the commission of one or more" of the enumerated offenses in subdivision (e). Defendant asserts that Officer Gallardo's testimony about the primary activities of the SSP gang "consisted of nothing other than the assertion that the primary activities of the gang included offenses listed in the statute." We have concluded that the jury's true finding on the gang enhancement allegation must be reversed on another ground.
We note, however, that a trier of fact could reasonably infer from Officer Gallardo's testimony and other evidence adduced at trial that SSP was a criminal street gang and every element of the gang enhancement had been established, including the element that SSP had as one of its primary activities the commission of one or more of the enumerated criminal acts specified in section 186.22, subdivision (e). Therefore, the prosecution may elect to retry the gang enhancement allegation. (See People v. Story (2009) 45 Cal.4th 1282, 1296 ["when reviewing the sufficiency of the evidence for purposes of deciding whether retrial is permissible, the reviewing court must consider all of the evidence presented at trial, including evidence that should not have been admitted"].)
I. Failure of Jury to Find Each Element of the Gang Allegation under Instruction Given
Defendant claims that the trial court omitted certain elements when it instructed jurors on the elements of the gang enhancement. Specifically, he claims that jurors should have been instructed on the definition of a criminal street gang and the primary activities in which such a gang must engage. The issue is now moot since we have concluded that the jury's true finding on the gang enhancement allegation must be reversed on another ground. J. Cumulative Error
It appears that the jury was provided with two instructions numbered CALCRIM No. 1401. During the reading of the instructions, after a bench conference, the court told the jurors that they needed only one of the two instructions and should remove the one that started "If you find." In our original opinion, we agreed that CALCRIM No. 1401, as provided to the jury, omitted a significant portion of the instruction that defines a criminal street, but we found the error harmless.
Defendant contends that he "has shown [that] the trial court erroneously instructed jurors that if he provoked a fight, he could not be convicted of manslaughter rather than murder, that inflammatory testimonial hearsay about [defendant]'s gang and his gang activities was improperly admitted, that jurors were not instructed that such evidence could not be considered for its truth, and that instead they were erroneously instructed, in substance, to consider this evidence as probative of [defendant]'s criminal disposition, that the trial court wrongly barred counsel from cross-examining the expert about one of the most central issues in the case and that it erroneously failed to instruct jurors to view admissions with caution." He argues that while "each of these errors is of federal constitutional dimension and each of these errors requires reversal of [his] convictions, taken together they resulted in a fundamentally unfair trial, and the federal Constitution's guarantee of due process requires a new trial as a result of this cumulative error."
"The concept of finding prejudice in cumulative effect, of course, is not new. Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. [Citations.]" (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Certainly, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 844-845.) Thus, under some circumstances, several errors that are each harmless on their own should be viewed as prejudicial when considered together. (Ibid.)
As indicated, we are reversing the jury's true finding as to the gang enhancement allegation. We have found no errors that individually or together warrant reversal of the jury's verdict of guilty of second degree murder. (See People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128; People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
DISPOSITION
The true finding on the gang enhancement is reversed. The judgment of conviction is otherwise affirmed, and the matter is remanded for proceedings not inconsistent with this opinion. If upon remand, the prosecution elects not to retry the gang enhancement allegation, the trial court shall strike the allegation and resentence defendant accordingly.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
WALSH, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------