Opinion
F071094
10-27-2017
THE PEOPLE, Plaintiff and Respondent, v. RICARDO ORACIO PICASSO, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF288122B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
During deliberations on various charges, including first degree murder, the jurors were called into the courtroom to be excused for the day. Since the judge who had presided over trial had an appointment, another judge was tasked with excusing the jurors that day. A juror asked the judge what the difference was between first and second-degree murder. Neither the prosecutor nor defense counsel was present. Without counsel's input or presence, the judge gave a vague though arguably correct instruction, and referred the jurors to their instruction packet.
The judge's ex parte instruction to the jury violated defendant's right to counsel at a critical stage of the proceedings. The primary issue is whether this error was prejudicial.
Evaluating the prejudice that flows from the absence of counsel is uniquely challenging. In this case, several unanswerable questions arise. For example, would counsel have objected to the court's response to the juror question? What instructions would counsel have requested in the alternative or in addition to what the court said? Would the court have been persuaded by counsel's argument and, as a result, have actually responded to the jury question differently? If so, would that response have led to a different decision by the jury?
The speculative nature of the prejudice inquiry in absence of counsel cases has led California courts to create a presumption of prejudice. Consequently, while we may be dubious the jury would have decided this case differently absent the circumstance of the brief supplemental instruction, it is the uncertainty itself that necessitates reversal of defendant's first degree murder conviction.
Because the error only impacted the jury's decision between first and second degree murder, we will give the People the option to retry defendant on first-degree murder or, alternatively, accept a reduction in defendant's conviction from first to second-degree murder. (See Pen. Code, § 1260 [reviewing court may "reduce the degree of the offense"]; cf. People v. Edwards (1985) 39 Cal.3d 107, 118.)
All further statutory references are to the Penal Code unless otherwise stated.
For other reasons, we also reverse the personal firearm use enhancements (§ 12022.53) to counts 1 and 3. We also conclude that section 654 requires a stay of execution of sentence on count 4. We otherwise affirm the judgment.
BACKGROUND
Defendant Ricardo Oracio Picasso was charged by information for the murder of Eric Reyes (count 1; Pen. Code, § 187, subd. (a)), the attempted murder of Juan Arredondo (count 2; §§ 664/187, subd. (a)), shooting at an inhabited dwelling (count 3; § 246), and possessing a firearm (count 4; § 12021, subd. (a)(1).) The prosecution's theory was that defendant had aided and abetted Reyes's murder, and personally perpetrated the attempted murder of Arredondo.
The information identified the victims by their initials.
As to counts 1, 2, and 3, the information alleged that a principal had personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)), and that defendant personally used (§ 12022.53, subd. (b)) and discharged (§ 12022.53, subd. (c)) a firearm. As to counts 1 and 2, it was alleged defendant personally used a firearm under section 12022.5, subdivision (a). The information also alleged that each count was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).) Finally, the information alleged defendant had suffered a prior serious of violent felony conviction under sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i); that the same conviction was also a serious felony under section 667, subdivision (a)(1); and that defendant had suffered four prior convictions under section 667.5, subdivision (b) for which he served a prison term and did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of that term.
A jury convicted defendant of first degree murder (count 1), shooting at an inhabited dwelling (count 3), and possessing a firearm as a felon (count 4). The jury found those three crimes were committed at the direction of, for the benefit of, or in association with a criminal street gang. The jury also found that during the commission of the murder and shooting at an inhabited dwelling, a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), and defendant personally and intentionally used a firearm (§ 12022.53, subd. (b).) The jury found that, on January 8, 2007, defendant had been convicted of violating sections 664/459 with a section 186.22, subdivision (b) enhancement; violating Vehicle Code section 10851, subdivision (a); Health & Safety Code section 11350, subdivision (a); and section 496d, subdivision (a). The jury also found defendant had been convicted of violating section 666 on August 27, 2009. The court found the prior conviction and prison term enhancements true.
On November 12, 2014, after deliberations had commenced, a juror indicated they needed to leave for a medical appointment. The jury informed the court that it had reached a verdict as to one of the counts. That verdict, which was guilty on count 4 and true as to the associated special allegations, was read in open court. The juror who needed to leave was then excused, and one of the alternate jurors was installed. The jury was instructed to begin their deliberations anew as to counts 1, 2, and 3. That afternoon, the jury returned verdicts on counts 1 through 3 and the special allegations.
The jury acquitted defendant of the attempted murder of Arredondo and the lesser related crime of assault with a firearm.
On count 1, the court sentenced defendant to 50 years to life (§ 1170.12, subd. (c)(1)), plus 25 years to life (§ 12022.53, subds. (d) & (e)(1)), plus five years (§ 667, subd. (a)(1)), plus two one-year terms (§ 667.5, subd. (b)), for a total prison term on count 1 of 75 years to life, plus seven years. On count 3, the court sentenced defendant to 30 years to life (§ 186.22, subd. (b)(4)(b), plus 10 years (§ 12022.53, subds. (d) & (e), plus five years (§ 667, subd. (a)(1)), plus two one-year terms (§ 667.5, subd. (b)), for a total prison term on count 3 of 30 years to life, plus 17 years. On count 4, the court sentenced defendant to a doubled mid-term of four years, plus five years (§ 667, subd. (a)(1)) plus one year (§ 667.5, subd. (b)), for a total prison term on count 4 of 10 years. All prison terms were to run consecutively. Remaining counts/special allegations were dismissed.
FACTS
Prior Incident - July 2010
Eric Reyes was shot and killed on October 30, 2011. More than a year prior, in July 2010, Reyes had a party at his house. Law enforcement was dispatched on a report of a gang fight involving weapons. Reyes told responding officers that several people showed up to the party and " 'started causing problems.' " Reyes said the individuals were in an older wahite Buick. The officer stopped a white 1991 Buick one block from Reyes's party. Defendant was driving the vehicle and had bloodshot eyes. Defendant was arrested, and "blew a .09% BAC" at the police station.
Much of the information about the party and ensuing incident come from a police report admitted into evidence. The police report was admitted by stipulation. While reciting the stipulation, the prosecutor said, "It's not being offered for the truth of the matter of what's in the police report, just the fact that it goes to the motive."
A letter from defendant to fellow Lindsay North Side (LNS) gang member Jonathan Martinez was later found in Martinez's house. In the letter, dated October 5, 2010, defendant wrote, "They gave me ten months flat." (Capitalization removed.) Later in the letter, defendant wrote, "Man yo boys [sic] a snitch man. You probably know who by now.... Erick Reyes fool! Serio! I wouldn't be in this predicament." (Capitalization removed.)
Killing of Eric Reyes - October 30, 2011
On October 30, 2011, Juan Arredondo came to Reyes's mother's house to ask Reyes for a ride. Reyes and Arredondo left together.
Christopher Creutz's Testimony
That same day, Reyes's friend Chris Creutz visited someone at the Navarro residence. At some point, Reyes and Arredondo also came to the house. Reyes, Arredondo and Creutz went to a nearby store to buy beer and then returned to the house. At trial, Creutz denied that when he returned from the store he said, " 'Let's go inside. Some bad shit's gonna happen.' "
Creutz went inside the house to eat and saw Jesus Navarro sitting on a sofa. Jesus was "kind of intoxicated or high or something," according to Creutz.
Because several witnesses have the last name Navarro, we will refer to them by their first name.
While Creutz was making a taco to eat, he heard "some kind of noise ... kind of like popping noise. I would say it would sound like gunshots, but it just sounded so quiet." "Then everybody jumped up and started reaching towards the door at the same time ... the glass door shattered, back door." When Creutz came outside he saw someone running towards the "area" of a nearby orchard, but could not see who they were. Creutz also saw someone on the ground. Creutz approached and saw the person on the ground was Reyes. Reyes said he was fine, and the two began talking. He seemed fine to Creutz, but then "he began trying to push my hand against some of his wounds to try to prevent blood from coming out." Creutz left to call an ambulance. When Creutz saw the ambulance coming, he left the scene.
Carlos Navarro's Testimony
Carlos Navarro visited his mother's house at 200 North Cambridge (i.e., the Navarro residence) in the evening on October 30, 2011. Carlos remembered seeing Creutz and Jesus at the house, but did not remember seeing defendant, Juvenal Navarro, Reyes, or Arredondo.
Juvenal Navarro goes by "Juva."
Carlos spent his time at the house sitting at the kitchen table. At one point, he heard "shots." One of the bullets hit the window of the sliding door. Eventually, Carlos came outside and saw Reyes lying in the street.
Jesus Navarro's Testimony
On October 30, 2011, Jesus Navarro was at his mother's house. Jesus had been smoking throughout the day and was "super high." Before Jesus went inside to play videogames, he saw Juvenal outside. Later, Jesus heard gunshots outside, exited the house, and saw Reyes laying on the road. Nobody else was outside. Jesus does not remember if the door was shattered or not at that time.
At trial, Jesus said he did not remember telling detectives that defendant, "Juva," and Reyes were outside.
After Jesus was detained and released from the police station, he returned to the house and saw the door was broken.
Jesus then drove to his own home in Strathmore. Fifteen or 20 minutes later, Juvenal came to Jesus's house. About five minutes after that, "some other guy" came to Jesus's house. At trial, Jesus testified the "other guy" was not in the courtroom, and he did not remember telling detectives the "other guy" who had arrived was defendant. Jesus also claimed to not remember telling detectives that defendant tried to hide a "silver .380" firearm in a mattress in the garage and that Jesus had told him to, " 'Get that out of my house.' "
Jesus said he did not remember telling detectives that there had been an argument about someone being responsible for someone else getting arrested. Jesus also claimed he did not remember telling detectives that he had left when the argument started because he knew something bad was going to happen. Jesus testified he did not recall telling detectives that after the shooting, Arredondo ran into a nearby orange grove. Later, Jesus said he had "made ... up" the story about Arredondo running into the orange grove.
Jesus testified that everything he told detectives that day was said because he was scared and wanted to go home. Jesus testified he had previously told the judge that he was afraid for his family's life. Jesus said he did not "want to take the stand because I don't want to be involved with anything that's going on here."
Officer Kevin Riley
Kevin Riley is a police officer, firefighter and evidence technician for the City of Lindsay. On October 30, 2011, while Riley was working in his capacity as a firefighter and evidence technician, he was dispatched to the 900 block of East Samoa and arrived at about 11:03 p.m. He approached a man lying in the roadway and recognized him as Eric Reyes. Reyes had four gunshot wounds, was having difficulty breathing, and could not speak.
Officer Riley initially observed three gunshot wounds to Reyes's back. Later, Riley observed a fourth wound near the back of Reyes's neck.
After the ambulance transported Reyes from the scene, Officer Riley began to "check[] the area for evidence." Riley found seven .22-caliber shell casings at the scene. Riley photographed bullet holes in the back door of 200 North Cambridge and the side of 900 East Samoa. Riley also photographed a "possible bullet hole" in the fence of 900 East Samoa.
Officer Riley then searched a dirt area to the east of the driveway of 200 North Cambridge. There he found several (i.e., "a lot") of shoe tracks, including some with a K-Swiss insignia.
Next, Officer Riley searched an orange grove across the street from 200 North Cambridge. There he found a live .380 round. The round had a firing pin impression, suggesting someone had attempted to fire the round but encountered a malfunction.
A white t-shirt, tank top, and black jacket were also found in the grove. While there were leaves and dirt all over the area, there were no leaves on the jacket, t-shirt or tank top. It appeared the items had been left there "very recent[ly]."
Officer Adriana Nave
Officer Adriana Nave was also dispatched to the scene. Based on information Nave received from the reporting party, she advised her lieutenant that a blue BMW seen leaving the scene "resided" at 1025 North Strathmore. From previous contacts, Nave already knew Jesus Navarro usually drove a blue BMW. Nave arrived at 1025 North Strathmore later that night. Standing outside the residence when she arrived were defendant, Juvenal, Jesus, and Krystal Rodriguez.
Later, Officer Nave collected a pair of K-Swiss shoes from a bedroom in the house. Defendant said the shoes were his.
Sergeant Nicholas Nave
Sergeant Nicholas Nave was dispatched directly to 1025 North Strathmore. Nave arrived at around 2:30 a.m.
Inside the residence, defendant was pretending to be asleep on the floor. He was lying on a pillow "covered with a white Raiders sweatshirt." Officers found a live .380 round in the front pocket of the sweatshirt. The .380 round had a primer strike on the back, which was consistent with the round being chambered in a firearm and the trigger pulled, but for some reason the round did not fire.
Underneath a vanity in a bathroom, officers found a box of hygiene products with a silver Bryco Model 38 pistol and one loose .380 round inside. The Bryco Model 38 fires .380-caliber rounds. Inside the gun, one live .380 round was chambered, and two live rounds were in the magazine, which was loaded in the gun when the officers found it.
Sergeant Nave searched the garage and found a gun safe with a couple of long rifles and ammunition, including a box of Super X brand .22-caliber ammunition.
Interrogations
Defendant, Jesus, Juvenal, and Krystal Rodriguez were taken to the police department for questioning.
Krystal Rodriguez
Krystal told officers that when she had returned home from work her brother, sister-in-law, Juvenal and another person whose name she did not know were at the house. Krystal said Jesus was telling defendant to get out of the house. Krystal did not know why Jesus was telling defendant to leave.
Jesus Navarro
In October 2011, Rick Logan was working as a "reserve officer" for the Lindsay Police Department. Logan interviewed Jesus.
Over the hours and days following the shooting, Jesus gave several statements to police. His description of events changed in some respects across the various recountings.
Jesus said that he saw a group of eight or more people, including "Juva," Reyes, Arredondo, and "Congo" outside the Cambridge house near a white Ford Expedition. Jesus heard them arguing about "some old stuff." Jesus thought it was about "somebody getting arrested" but "didn't know exactly what it was all about." It looked like defendant was "ganging up" on Reyes. Jesus said the group was "going to go to the groves but then that's when they started arguing again, and then I just took off." Later, Jesus said that three times the group walked "towards" the groves, but "they just turned back."
Jesus Navarro has a brother and a cousin both named Juvenal Navarro. Jesus's cousin is the one referred to as "Juva."
Jesus referred to "Congo" throughout his interrogation. A gang expert later testified that "Congo" was defendant's gang moniker. Because there was substantial evidence that "Congo" referred to defendant, and that inference supports the judgment, we will refer to "defendant" for clarity, rather than "Congo."
In Jesus's second statement, he said they went "to" the groves and came back, twice.
Jesus initially claimed he left "way before anything happened." Jesus later admitted he heard shots and saw Reyes fall down. Arredondo then ran towards the nearby orange grove. It looked like Arredondo was running for his life. Defendant also took off running.
In one of Jesus's earliest statements, he indicated that a "guy" who "looked Asian" "came out of the backseat" and was the shooter. Later, Jesus said that while the man looked Asian, he did not think he actually was Asian and instead was "probably Mexican." Jesus identified the "Asian looking guy" as Juan Arredondo. But a couple days later, Jesus said that Arredondo ran after the shots that killed Reyes were fired and that it did not appear Arredondo had a gun.
Jesus left to go to his house and Juva showed up a few minutes later. Defendant showed up a couple minutes thereafter. Jesus asked defendant if he had a gun. Defendant said he did not have a gun, so Jesus let him in the house. At one point, Jesus told defendant "[s]tay out of my bedroom." Jesus did not know if defendant complied. Jesus did see defendant go into the bathroom.
Jesus was released from custody in the early morning hours after the shooting. On November 1, Jesus returned voluntarily and spoke with officers.
Jesus said he "thought" defendant had a problem with Arredondo because "I guess a while back he tried to grab him or something like that, and [defendant] told him, 'What the f**k are you doing?' " Jesus said that nobody liked to hang around Arredondo and that he was weird.
Jesus said that night "Chris" - presumably Chris Creutz - told him, "[H]ey let's go inside because ... 'some shit's gonna happen.' " Jesus and Chris went inside "just real briefly and heard the gunshots going off." After Reyes fell, Jesus "thought" he heard another gun go off, but he "wasn't sure."
Officer Logan testified Jesus said that he saw someone running after Arredondo into the grove and the person looked just like defendant. The transcript of Jesus's interview indicates Jesus said the person who ran after Arredondo was built like defendant, but that defendant actually ran the opposite way from Arredondo. After Arredondo started running, Jesus heard two more "shots." Jesus did not think Arredondo had a gun.
When Juva came to Jesus's house afterwards, they asked each other how Reyes and "the other guy" were. Juva did not ask, "[H]ow is Congo?"
Jesus said he "didn't know why they would try to do something unless they got a call telling them to hit 'em both." Officer Logan explained that "to kill somebody you have to have a sanctioned hit on somebody, if you're in a gang. To shoot somebody, it has to be sanctioned by higher ups than what they all are."
Jesus never said he saw defendant fire a gun.
On November 3, 2011, Jesus came to the police department because he heard Krystal Rodriguez had been detained. Krystal had been detained because police had learned she had more knowledge of the crime than she had previously disclosed and possibly knew where the murder weapon had been placed.
Jesus said he asked defendant whether he had a gun when he arrived at this house. Defendant told Jesus he did not have a gun. Later, Jesus saw defendant trying to hide a "chrome-colored semiautomatic handgun believed to be a .380 in a mattress inside the garage of the residence." Jesus confronted defendant, told him he did not want the gun in the house, and asked him to leave multiple times. Defendant refused, and Jesus did not know where defendant ultimately placed the gun.
Defendant's Interrogations
Brian Clower - who was a lieutenant with the City of Lindsay at the time -- interrogated defendant in the early morning hours after the incident. Defendant was questioned three different times that day, with the final interview ending in the afternoon. Audio of the one of the two earlier rounds of questioning was played for the jury.
It is not entirely clear whether audio from the first or second round of questioning was played for the jury.
The prosecutor asked Officer Logan several questions to lay a foundation for Exhibit 80. When asked what Exhibit 80 was, Logan said it was "the first interview" with defendant. In actuality, Exhibit 80 is a CD with the audio from the first two "interviews" with defendant as separate files. When Exhibit 80 was admitted into evidence, the prosecutor requested "to play People's 80." Shortly, thereafter, the reporter's transcript includes the notation "(Tape played)." The court reporter did not transcribe the tape. The court then asked the prosecutor, "Are you going to play the other?" The prosecutor replied, "I don't think so. It's more of the same." It is not entirely clear which of the two recordings were played for the jury. However, the exhibit containing audio of both interviews was admitted into evidence.
First Round of Questioning
Defendant said he knew who Reyes was, but did not "have a problem with nobody." He said he "didn't do shit" and was with his "girl."
Eventually, defendant admitted he was at Jesus's house when Reyes "rolled up." "Then ... some crazy shit happened." Defendant was urinating outside when he heard "something" and took off. He did not see who shot Reyes but did see "some dude over him."
Defendant said his fingerprints were not on any guns.
Second Round of Questioning
Several hours later, after officers executed the search warrant at 1025 North Strathmore, Officer Logan and Lieutenant Clower again interrogated defendant. Again, defendant denied shooting anyone and denied knowing who shot Reyes. Defendant invited officers to "do the GSR" because he "didn't pull no f**king trigger, man." Defendant also claimed he did not have a "gun at that pad." Defendant said he saw Reyes the day prior and defendant "wasn't tripping." Defendant asked if he could speak with his mother and then "go from there." Defendant then called his mother and told her he was being arrested for murder at the police department. Afterwards, defendant again encouraged officers to test him for gunpowder and mentioned "go[ing] down for somebody else's shit."
Context indicates defendant was referring to gunshot residue testing.
Defendant repeated that he was at the side of the house urinating when he heard a couple shots. He saw Reyes on the ground with Chris on top of him. Defendant "wasn't trying to stay there" because he was on parole, so he walked away. Defendant thought Reyes was all right because he heard him talking. Then "Chuche" (i.e., Jesus) came out of nowhere and gave him a ride.
Later, defendant was asked who he thought shot Reyes, and defendant said, "I think it would be Juan." Defendant said Juan (Arredondo) was a "violent person."
Defendant admitted putting the .380 pistol "in the bathroom."
Defendant also said Reyes was "not into ... shit like this. He's not into problems. He's not a problem guy."
Third Round of Questioning
When officers decided to book defendant, he asked to speak with Lieutenant Clower. A third round of questioning ensued, which was conducted solely by Clower. Defendant told Clower that, in fact, Juvenal had shot Reyes.
Lieutenant Clower testified defendant admitted having the .380 chrome pistol but said he never fired it. Surrounding context indicates Clower was not reading the interview while testifying at this point. The transcript of the third interview indicates defendant said, "[T]he .380 was never there" (i.e., never at the scene of the murder), but he did not retract his earlier admission he had the .380 at the Strathmore residence.
Creutz's Interview
Lieutenant Clower interviewed Creutz a day or so after the shooting. Clower recalled that Creutz asked if he could be taken into custody so he could think about what to say. Clower asked if Reyes was known as a "rat," and Creutz responded "that he didn't believe that he was a rat and he always tells people, " 'If you believe he's a rat, well, if you got paperwork, then he is. But if not, why are you gonna go [sic]? Like, anyone can accuse anybody of being a rat[.]' "
Juan Arredondo
Lieutenant Clower attempted to locate Arredondo "numerous times" but was never able to do so.
Other Evidence
Surveillance Video
Lieutenant Clower reviewed surveillance video from J's Mini Mart, which was "right around the corner from where this crime occurred." The video showed Reyes, Arredondo and Creutz entering the store, making a purchase and leaving. Arredondo was wearing the same black jacket that would later be recovered by law enforcement in the grove near where the shooting occurred.
Prints
The .380 handgun and magazine were tested for fingerprints. No usable prints could be found on the gun. One usable latent print was found on the magazine, which matched the prints of Jonathan Martinez.
Defendant's Phone and the Search of Jonathan Martinez's Residence
Defendant's phone indicated that several calls had been made to phone numbers later associated with Martinez. Because Jonathan's print had been found on the .380 magazine, and his phone numbers appeared on defendant's phone, law enforcement ran a background check on him. That check indicated that defendant and Martinez had been arrested together on prior occasions and were both "documented Northern gang members."
Based on that information, a search warrant for Martinez's residence was obtained. There, officers recovered several firearms, ammunition, clothing commonly worn by Northern gang members, and letters that had been written from jail. The envelope for one of the letters was addressed to "Junior Martinez" at Martinez's address and listed "Ricardo Picasso" on the return address. The letter itself was addressed to "Moeisha" and was signed "Congstero." The letter said that Reyes was a snitch. Police also found a binder with police reports from the Lindsay Police Department in the home.
The prosecution's gang expert testified that a gang stash house "is a house that's usually either an associate or possibly one of the gang members who is not on probation or not searchable to where the gang hides weapons, stuff that the gang doesn't want the police officers to find."
According to defendant's appellate brief, this binder included the report of the 2010 incident involving Reyes and defendant.
A subsequent analysis of defendant's phone showed calls to "Moeisha" at 5:19 p.m., 6:09 p.m., 7:10 p.m., 7:11 p.m., 7:27 p.m., 10:14 p.m., 10:20 p.m., 11:02 p.m., on October 30, 2011, and at 12:22 a.m. on October 31, 2011. The 12:22 a.m. call lasted two minutes and 21 seconds. Except for one or two of the calls, each appeared to be of a duration "where you would either be talking or leaving a message."
Several text messages to "Cassie" were also recovered, including one at 11:32 p.m. saying, "I have to find somewhere to live. So I'm looking."
Presumably on October 30, 2011.
The text messages to "Cassie" and the entire phone log were deleted from the phone sometime after 1:48 a.m.
Presumably on October 31, 2011.
Gunshot Residue
Criminalist Debra Koval received three hand samples and the white Raiders sweatshirt to test for gunshot residue.
The hand samples were from Juvenal Navarro, Jesus Navarro and defendant. None of the hand samples contained particles of gunshot residue.
The white Raiders sweatshirt contained "several characteristic particles and many consistent particles of gunshot residue." Koval opined that the sweatshirt had been in an environment with gunshot residue.
Weapons with calibers of .22, .38, .45 and nine-millimeter can send gunshot residue 14 feet in the muzzle direction and six and a half feet to eight feet to the sides of the weapon.
Weapons Testing
Michael Appel, a criminalist specializing in firearm identification and tool marks, testified for the prosecution.
The .380 handgun recovered at the Strathmore residence was test fired. The first two test bullets successfully fired, but the gun misfired twice on the third bullet.
Appel explained that when a cartridge is loaded and then extracted from a firearm, the cartridge is considered to have "cycled" through the firearm. The cycling process leaves "markings from various areas of the firearm" on the cartridge. Analysis showed that the cartridge recovered at the Strathmore residence had been cycled through the .380 handgun. Analysis of the cartridge found in the orange grove was inconclusive because while it "had characteristics very similar to the ones left by the firearm or the other cartridge ... there [was not] quite enough individual detail to say it was conclusively cycled in that firearm." However, Appel believed the cartridge found in the orange grove most likely was cycled through the .380 handgun.
Appel identified the rounds by item number. Independent testimony established which item number corresponded to which cartridge.
Several .22-caliber casings were also submitted for analysis. All of the .22-caliber casings were made by the same manufacturer and had the Super X head stamp on them.
Autopsy
Dr. Gary Walter is a physician, board-certified in forensic pathology. Dr. Walter shared a practice with a Dr. Hartman. Dr. Hartman performed Reyes's autopsy on October 31, 2011. The autopsy report indicated Reyes's cause of death was gunshot wounds to the chest and head. Reyes had sustained three gunshot wounds to the left back and one to the right back of the head. None of the wounds had corresponding exit wounds.
Gang Evidence
Andrew Robinson is a sergeant with the Lindsay Police Department, and is in charge of the gang unit.
Sergeant Robinson testified that the Norteño gang claims the entire city of Lindsay as their "turf." Norteños wear the color red and identify with the number 14. Almost "every alleyway that you turn down in Lindsay has Northern graffiti." One photograph depicted graffiti on a fence reading, "LNS" which stood for "Lindsay North Side."
The Navarro residence at 200 North Cambridge is a known local gang hangout. Gang members congregate there on a daily basis and numerous gang-related crimes have been committed in the area.
Sergeant Robinson was "one of the officers that did the investigation initially in [the Reyes] case." Robinson also reviewed "the reports in th[e] case."
Primary Activities
Sergeant Robinson opined that the primary activities of the Norteños are murder, attempted murder, assault with a deadly weapon, armed robbery, carjacking, assault, battery, shooting at an inhabited dwelling and possessing firearms.
Predicate Offenses
On December 9, 2005, Jesus Pallos pled guilty with assault with a deadly weapon with "the gang enhancement." In Sergeant Robinson's opinion, Pallos was a Northern gang member when the crime was committed. That opinion was "based upon prior contacts with him."
On December 6, 2005, Luis Contreras pled guilty to assault with a deadly weapon with "the gang enhancement." In Sergeant Robinson's opinion, Contreras was a Northern gang member when the crime was committed. That opinion was based "upon prior contacts with him, self-admission, that he shot a Sureño gang member in an attempt to take his life."
Other Gang Members/Associates
Sergeant Robinson testified that a "moniker" is a nickname given to a gang member to conceal their identity. Jesus Navarro's nickname was "Chuche"; Juvenal Navarro's nickname was "Juva"; Jonathan Martinez's nickname was "Mo" or "Moeisha"; Cristopher Creutz's moniker was "White Boy Chris." Robinson had personally come into contact with Jesus Navarro, Juvenal Navarro, and Jonathan Martinez in the past and had spoken with other law enforcement personnel about them and had read police reports concerning them. Robinson also had personal contact with Christopher Creutz, but not as many contacts as with the others.
Sergeant Robinson opined that Juvenal Navarro and Jonathan Martinez were active LNS gang members on October 30, 2011, and that Jesus Navarro and Eric Reyes were "Northern gang member[s]." Robinson believed that Creutz and Arredondo were associates of the gang.
Defendant
Sergeant Robinson "review[ed]" defendant's "contacts."
On February 20, 2001, defendant was involved in a gang-related crime, had gang attire on, and a purple compact with "Norte" inscribed on it. Defendant was also "associating with gang member Jose Lua" at the time.
Sergeant Robinson explained that "Norte" is an abbreviation gang members use to identify themselves as Northerners.
On March 9, 2003, defendant was contacted "by another officer who noted that he was ... a Northern gang member affiliate."
On October 26, 2003, defendant "was contacted and found to be associating with gang members and he was found to be wearing gang attire, which consisted of red shorts." Sergeant Robinson believed that was a "casual" or "FI type" of contact.
On November 18, 2003, defendant "was contacted" on the 800 block of East Samoa (near where the shooting of Reyes would later occur) with Carlos Navarro and a Victor Ortiz. Sergeant Robinson testified, "[T]he officer noted that [defendant] was observed associated [sic] with gang members on a daily basis."
On November 23, 2003, defendant was wearing "gang attire, which were red sweatpants" and was "involved in a gang-related crime."
On October 22, 2004, defendant was again contacted on the 800 block of East Samoa where he was associating with gang members. Defendant admitted to associating with gang members at that time.
On December 20, 2004, defendant was again contacted on the 800 block of East Samoa with Northern gang members and was in possession of a lighter that had "LNS" (referring to Lindsay North Side), and "X4" (referring to the number 14) scratched into it.
On December 7, 2004, defendant was contacted on the 900 block of East Samoa while associating with known gang members while dressed in gang attire, consisting of a red beanie.
On February 1, 2005, May 20, 2005, March 11, 2006, and April 19, 2006, defendant was again found associating with gang members.
On March 25, 2005, defendant was arrested with Martinez for a gang crime. They later pled guilty to "battery with a gang allegation."
On September 5, 2005, defendant was contacted during a traffic stop. Defendant was with Martinez.
On February 20, 2006, defendant was contacted with Northern gang members and another person was arrested in the incident.
On April 8, 2006, a probation search was conducted at defendant's home. In defendant's room were CD's with "X4" written on them and gang attire.
On April 28, 2006, defendant was contacted with Hugo Saldana, a documented "LNS" gang member. The next day, defendant was arrested with other Northern gang members for being in possession of alcohol as a minor.
On May 6, 2006, officers had a "consensual encounter" with defendant in the 200 block of North Cambridge (where Reyes would later be shot). Defendant had a red shirt draped over his left arm, "which is common by Northern gang members."
On July 27, 2013, defendant admitted to being an active Northern gang member while in custody.
Sergeant Robinson offered his opinion that on October 30, 2011, defendant was an active "LNS gang member." Robinson's opinion was based on, several factors including:
"He was contacted 17 different times associating. I believe involved in three gang crimes. Six times he was seen to be wearing gang attire, three times in the possession of gang material. One time he admitted in a custodial facility. He has one gang-related tattoo, and he was found corresponding with gang member [sic] as well...."
Gang Culture
Sergeant Robinson explained that if someone is considered a "rat," they may face retaliation even from members of their own gang.
"Because that's like the ultimate slap in the face for a gang member to be a rat, it's just as bad as being a rival gang member. It shows you're disloyal to the gang. At that point you are punishable by death within the gang. [¶] ... [¶]
"That's pretty much the ultimate crime you can commit against your own gang, is to rat on your own people. They're not supposed to have any police contact whatsoever. So that even means ratting on rival gang members. We don't see it. We'll go out - I personally have been out to
scenes where Northern gang members have been shot by rival gang members, but will not cooperate with the police. For them to cooperate with the police against their own gang, that's considered the wors[t] thing you can do."
Gang-relatedness
The prosecutor presented Sergeant Robinson with a hypothetical mirroring the facts of the case and asked if the crime would be in "association with, at the direction of, or [for] the benefit of a criminal street gang[.]" Robinson opined:
"My opinion would be that, obviously, you have two gang members that are arguing with two other gang members or gang member associates. Gang members like to act in numbers. So there you have the two gang members. They're in association with each other committing a crime, a violent crime, which instills fear and the main thing is acting in numbers."
Sergeant Robinson also said that violent crimes promote the gang. A gang member's willingness to commit a violent crime engenders respect throughout the gang.
The prosecutor asked Sergeant Robinson if the fact that the nonshooter in the hypothetical had called the victim a "snitch" would affect his opinion. Robinson said it would strengthen his opinion that the crime was gang-related because it shows motive.
Similarly, the fact that the gun possessed by the nonshooter had the fingerprint of another gang member on it would show the crime was in association with gang members. Sergeant Robinson said, "It goes back to when I spoke earlier about the stash houses. Weapons are shared amongst gang members. Finding a fingerprint on a gun from another gang member is something that we do see. That shows that they're associating with one another and that in itself, I feel, is gang activity."
Sergeant Robinson opined that if a house was shot by happenstance during the crime, that would benefit the gang "because it still instills fear throughout the people in the community, in the neighborhood."
DISCUSSION
I. THE COURT IMPROPERLY COMMUNICATED WITH THE JURY WITHOUT DEFENSE COUNSEL'S KNOWLEDGE OR PARTICIPATION; AND THE ATTORNEY GENERAL HAS FAILED TO REBUT THE STRONG PRESUMPTION OF PREJUDICE RESULTING THEREFROM
On November 10, 2014, during jury deliberations, the following court proceedings occurred:
"THE COURT: We're meeting outside the presence of the jury. [Defendant] is present. We have an interpreter. [Defense counsel] is on the phone. I have to leave to go to an appointment. The jury is still deliberating.
"Is there an agreement that another judge, that judge is Judge Paden, would answer any questions or take a verdict if there's a verdict today?
"[Defense Counsel]: That's fine.
"[Prosecutor]: Yes.
"THE COURT: Is that agreeable with you, [defendant]?"
"THE DEFENDANT: Yes.
"THE COURT: Okay. Very good. Thank you. That's all.
"(Recess)
"THE COURT: Do we have everybody here?
"A JUROR: Yes.
"THE COURT: As you've all guessed by now, I'm not Judge Kalashian. My name is Gary Paden. Judge Kalashian got called away. So I intend to send you home for the evening. What I'd like to do is figure out what time you would like to come back on Wednesday, because tomorrow is a court holiday."
Judge Paden and the jury then scheduled a time to resume deliberations and discussed other minor matters irrelevant to the issue in this appeal. Judge Paden then asked the jurors if they had any questions. The following exchange ensued:
"A JUROR: I have a question. It's just for me. I'm having trouble - and I don't know if you can answer it or not -
"THE COURT: I didn't hear any of the evidence. So it's highly -
"A JUROR: It's not about the evidence. What's the difference between first degree and second-degree murder? What would be the distinguishing thing?
"THE COURT: I can tell you that it is in your jury instruction packet. Look for the definition of what murder is. Murder is the - I shouldn't get into this. The unlawful killing of someone with malice aforethought. What distinguishes - and then it explains what malice aforethought is. It's either express or implied.
"And then first degree is willful, deliberate, and premeditated. Other than that, it's second degree. But, again, I'm just paraphrasing. Please refer to your jury instructions packets. They have the law in it. And by all means, refer to that...."
The corresponding minute order indicates that the prosecutor and defense counsel were not present when Judge Paden responded to the juror's question.
Defendant asserts that the record does not indicate "that the substitute judge ever informed the trial court or the prosecutor that there had been a jury question." The Attorney General does not dispute this reading of the record.
A. Analysis
1. Law on Ex Parte Communications Between Court and Jury
"A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution ...." (People v. Doolin (2009) 45 Cal.4th 390, 453.) "[A] supplemental jury instruction is a " 'critical stage' " of a criminal proceeding. [Citations.]" (Jones, supra, 332 F.3d at p. 436; see also Rogers v. United States (1975) 422 U.S. 35, 39-40; Shields v. United States (1927) 273 U.S. 583, 587-588; Curtis v. Duval (1st Cir. 1997) 124 F.3d 1, 4-5; People v. Dagnino (1978) 80 Cal.App.3d 981, 988 (Dagnino); People v. Jenkins (1963) 223 Cal.App.2d 537, 540.) "The 'stage' at which the deprivation of counsel may be critical should be understood as the formulation of the response to a jury's request for additional instructions, rather than its delivery. Counsel is most acutely needed before a decision about how to respond to the jury is made, because it is the substance of the response - or the decision whether to respond substantively or not - that is crucial. [Citation.]" (Musladin v. Lamarque (9th Cir. 2009) 555 F.3d 830, 842.)
As a result, when the jury poses a question on a point of law during deliberations, "the defendant's right to counsel under the Sixth Amendment to the federal constitution requires that the trial court notify defendant or defense counsel and afford them an opportunity to object before responding to [a] jury[] request. [Citations.]" (People v. Lozano (1987) 192 Cal.App.3d 618, 623 (Lozano).) " 'Communication between judge and jury during deliberations without affording defendant and counsel an opportunity to be present impinges on a defendant's constitutional right to the assistance of counsel. [Citations.]' [Citation.]" [Citations.] Ex parte instructions also implicate the defendant's right to personal presence at all trial proceedings. [Citations.]" (People v. Hawthorne (1992) 4 Cal.4th 43, 69.)
Defendants also have a statutory right to counsel's presence when the court answers a jury question on any point of law during deliberations. (§ 1138.) Section 1138 requires that if the jury "desire[s] to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (§ 1138.) Thus, the statute "requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived." (People v. Hawthorne, supra, 4 Cal.4th at p. 69.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
Based on these authorities, it is clear that defendant's constitutional right to counsel, and his statutory right to the presence of counsel under section 1138, were implicated when the trial court responded to the juror's question without defense counsel's knowledge or participation. Next, we must determine whether the error warrants reversal.
2. Prejudice
a. Legal Standard
"When faced with a record of a proceeding conducted without counsel, a reviewing court assessing possible prejudice is compelled to speculate as to what might have occurred had counsel been present." (People v. Hogan (1982) 31 Cal.3d 815, 850, disapproved on another point by People v. Cooper (1991) 53 Cal.3d 771, 836.) Indeed, evaluating prejudice in this context raises several difficult questions that would essentially require speculation: If defense counsel had been involved in the response to the juror's question, would he have "pose[d] an objection or suggest[ed] a different reply more favorable to the defendant's case"? (People v. Garcia (1984) 160 Cal.App.3d 82, 88 (Garcia).) And would such an objection or suggestion have persuaded the trial judge? (United States v. Dellinger (7th Cir. 1972) 472 F.2d 340, 380 [while a trial court has discretion to fashion its response to a jury's question, "the suggestions of counsel might well have been helpful and led to a different exercise of discretion"].) If so, would the different response have affected the jury's verdict? Are we confident of our answer to that question beyond a reasonable doubt?
Because prejudice is so difficult to assess in this context, " ' "prejudice [is] presumed if the denial may have affected the substantial rights of the accused. Only the most compelling showing to the contrary will overcome the presumption. The court must be able to declare a belief the denial of counsel was harmless beyond a reasonable doubt [under Chapman v. California (1967) 386 U.S. 18 (Chapman) []." ' [Citations.]" (People v. Horton (1995) 11 Cal.4th 1068, 1137.) "The reason for the strong presumption of prejudice when the assistance of counsel has been denied is both the fundamental nature of the right and its relation to a fair trial and the difficulty of a "meaningful assessment of prejudice on the record.' [Citations.]" (People v. Hogan, supra, 31 Cal.3d at pp. 849-850, italics added.) " ' "[C]ourts will not engage in "nice calculations" in making such a determination.' [Citations.]" (Lozano, supra, 192 Cal.App.3d at p. 624; Dagnino, supra, 80 Cal.App.3d at p. 989; cf. People v. Hogan, supra, 31 Cal.3d at p. 849.)
Federal courts go even further, and "consistently reverse[]" cases "in which a judge gave additional substantive instructions to the jury without notice to counsel ...." (United States v. Dellinger, supra, 472 F.2d at p. 378, fn. omitted.) Indeed, federal courts have granted habeas to such defendants without considering prejudice at all. (See Jones, supra, 332 F.3d at pp. 438-439.)
The presumption is so strong that it has been held unrebutted even when a trial court "simply sent the jury previously given instructions[]" without counsel's input or presence. (Lozano, supra, 192 Cal.App.3d at p. 626, citing Dagnino, supra, 80 Cal.App. 3d at pp. 984-989; cf. Musladin v. Lamarque, supra, 555 F.3d at pp. 841-842.)
In sum, the Attorney General must rebut a strong presumption of prejudice with a " 'most compelling showing' " (Dagnino, supra, 80 Cal.App.3d at pp. 988-989) of harmlessness, such that we can " 'declare a belief that the denial of counsel was harmless beyond a reasonable doubt' " (id. at p. 989, brackets removed) without having to engage in " 'nice calculations as to the amount of prejudice ....' " (Ibid.)
b. Application
The Attorney General seeks to clear this high hurdle by arguing that the trial court had discretion regarding whether and how to give supplemental instructions. But that fact does not rebut the presumption of prejudice because we do not know how counsel's participation would have affected the court's exercise of its discretion. Though a trial court has discretion to fashion its response to a jury question, the potential for prejudice remains because "the suggestions of counsel might well have been helpful and led to a different exercise of discretion." (United States v. Dellinger, supra, 472 F.2d at p. 380.) The Attorney General's argument runs headlong into one of the very reasons for the presumption of prejudice: "[T]he uncertainty of ... prejudice ... suffered...." (Jones, supra, 332 F.3d at p. 438, italics added.)
The Attorney General also notes defendant "has not explained how "the opportunity to have counsel help formulate or argue for a particular response" [] would have changed the court's actual response here." But under Chapman, it is not a defendant's burden to show prejudice, it is the government's burden to show harmlessness. (In re Art T. (2015) 234 Cal.App.4th 335, 357; see O'Neal v. McAninch (1995) 513 U.S. 432, 438-439 [Chapman places risk of doubt on the government]; see also Chapman, supra, 386 U.S. at p. 24; Gamache v. California (2010) 562 U.S. 1083 [131 S.Ct. 591, 592-593] (Statement of Sotomayor, J.); People v. Jackson (2014) 58 Cal.4th 724, 774-775, 777-778, 793-794, 806-807 (conc. & dis. opn. of Liu, J.).)
The Attorney General also contends that the trial court's ex parte instruction was "accurate." But that fact alone does not establish harmlessness here. Indeed, the reason for having the constitutional rule in the first place is to afford defense counsel "an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case. [Citations.]" (Garcia, supra, 160 Cal.App.3d at p. 88, italics added.) Thus, the fact that a court's ex parte communication with the jury may be legally correct does not satisfy the rule's goal of permitting defense counsel to "suggest a different reply more favorable to the defendant's case. [Citations.]" (Ibid.) Because even where the substance of the court's ex parte communication is not an abuse of discretion, "the suggestions of counsel might well have been helpful and led to a different exercise of discretion." (United States v. Dellinger, supra, 472 F.2d at p. 380.)
While the fact that an ex parte instruction contains no legal error can establish harmlessness in other contexts (see People v. Alcalde (1944) 24 Cal.2d 177, 189; see also People v. Woods (1950) 35 Cal.2d 504, 512), the rule only applies when the evidence of guilt is overwhelming. (See People v. Weatherford (1945) 27 Cal.2d 401, 419; see also People v. Rodriquez (1963) 213 Cal.App.2d 555, 560-561 [distinguishing People v. Alcalde because evidence against defendant "was far from conclusive"].) As explained below, the evidence on the essential issue of premeditation was not overwhelming in this case.
In Dagnino, supra, 80 Cal.App.3d 981, the trial court "simply sent the jury previously given instructions." (Lozano, supra, 192 Cal.App.3d at p. 626.) Nonetheless, the Dagnino court found that the presumption of prejudice had not been rebutted because if defense counsel had been aware, they might have requested cautionary instructions concerning the use of written instructions and "there are undoubtedly other measures, and precautions, able and conscientious counsel could reasonable have taken which " 'may have affected" their clients' substantial rights." (Dagnino, supra, at pp. 989-990.) Dagnino illustrates how a presumption of prejudice works. It is not dispositive that a court's supplemental instructions are correct. Instead, it is dispositive that we do not know whether counsel's presence would have led the trial court to give a different response to the jury.
For this reason, the argument for harmlessness in Dagnino is much stronger than the present case. We cite the case as an example of how a presumption of prejudice operates in this context. We need not decide how we would have applied that presumption to the facts presented in Dagnino.
Those few cases that have found harmlessness in this context often involve the trial court holding subsequent proceedings with defense counsel present to mitigate any harm. (E.g., People v. Jennings (1991) 53 Cal.3d 334, 384-385 [error harmless for two reasons, one of which was that "the court promptly notified defense counsel of its action and encouraged counsel to review the court reporter's notes and suggest a further admonition, if desired."]; People v. Knighten (1980) 105 Cal.App.3d 128, 134 [defense counsel "fully participated" in subsequent proceedings and "his suggestions and objections were carefully heeded. In light of these proceedings we conclude beyond a reasonable doubt that the error ... was harmless."].) Here, there is no suggestion defense counsel ever knew about the court's ex parte communication with the jury.
The Attorney General also argues that any error was harmless "given the strength of the evidence presented to the jury." We will assume for the sake of argument that the strength of the evidence can establish harmlessness in this context. However, we conclude the evidence of premeditation and deliberation as to defendant (i.e., the issue raised by the juror question) was far from overwhelming.
With respect to motive, the Attorney General cites Reyes's prior report of an "incident," which lead to defendant's arrest; defendant's letter calling Reyes a "snitch"; and defendant's apparent argument with Reyes before the shooting about "somebody getting arrested." This evidence could be consistent with premeditation, but it could also be consistent with defendant confronting Reyes about the prior incident, which led to a heated argument which resulted in a rash, impulsive killing.
Similarly, defendant's initial denial of involvement in the crime is consistent with first- and second-degree murder. That is, a defendant who knows he committed a rash, impulsive, unlawful killing would be inclined to deny involvement in the incident to law enforcement.
With respect to planning, the Attorney General notes that defendant had been in contact with Martinez before and after the crimes, and that Martinez's fingerprint was found on the magazine of the .380 handgun. But the gang expert intimated that Martinez apparently ran a "stash house" for the gang. The prosecution's gang expert testified that a gang stash house is used to hide the gang's weapons. Thus, while Martinez's fingerprint on the .380 magazine could theoretically be consistent with a plan to murder Reyes, it is also consistent with Martinez acting to manage the gang's weapons.
Moreover, there is little evidence the .380 was directly involved in the murder of Reyes. The two live .380 rounds with primer strikes were found in the orange grove and inside a sweatshirt pocket. While this evidence suggests the .380 magazine (and gun) were involved in an alleged attempted murder of Arredondo, there is no evidence the .380 was directly used to murder Reyes. Reyes was killed with .22-caliber bullets, which the prosecution contended were fired by Juva.
In addition to evidence of motive and planning, the Attorney General cites to evidence of identity - i.e., the K-swiss shoes, Jesus Navarro's statement that someone who was built like defendant ran after Arredondo, etc. Even assuming that the strength of evidence adduced at trial can be relevant to the prejudice inquiry in this context, it would only be pertinent to the extent it bears on the issue discussed in the court's ex parte communication to the jury. For example, if the judge instructed the jury ex parte on one element of a crime, the fact that there was overwhelming evidence establishing the crime's other elements would be minimally relevant to the prejudice inquiry. Here, the juror's question pertained to the differences between first and second degree murder. The relevant distinction between first- and second-degree murder in this case is that first degree murder requires deliberation and premeditation, while second degree does not. Evidence tending to show identity - i.e., the K-swiss shoes, Jesus Navarro's statement that the person who chased Arredondo was built like defendant, etc. - bears little relevance to that issue.
In sum, even if strong evidence on the issue addressed by a court's ex parte communication could support a finding of harmlessness, the evidence of premeditation and deliberation in this case is not so overwhelming as to constitute a " 'most compelling showing' " of harmlessness. (Lozano, supra, 192 Cal.App.3d at p. 624; Dagnino, supra, 80 Cal.App.3d at p. 989.)
As a result, we are compelled to reverse defendant's conviction on count one. The count of first degree murder may be retried. (See Lozano, supra, 192 Cal.App.3d at p. 626.) Alternatively, because the error only impacted the determination between first and second degree murder, we will give the People the option on remand to accept a reduction in the degree of the offense (see § 1260) from first to second degree murder. (Cf. Edwards, supra, 39 Cal.3d at p. 118.) Defendant would then be resentenced.
c. Reversal of the Convictions on Counts 3 and 4 is Not Warranted
Defendant argues his conviction on count 3 (shooting at an inhabited dwelling) should also be reversed because the jury was instructed it could convict if it determined shooting at an inhabited dwelling was a natural and probable consequence of conspiracy to commit murder. Thus, he argues that the error concerning the ex parte nature of the supplemental instructions on first versus second degree murder necessarily infected count 3 as well.
However, the jury was instructed that in order to find a conspiracy to commit murder, it must find that "the defendant intended to agree or did agree with Juan [sic] Navarro to commit murder." If the jury found defendant and Juva conspired to murder Reyes, it necessarily found the murder was of the first degree. (See People v. Cortez (1988) 18 Cal.4th 1223, 1232.) That is, the "mental state required for ... conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder ...." (Ibid., original italics.) Consequently, if the jury convicted on count 3 on the basis of the natural and probable consequences doctrine, any deficiency in the ex parte instruction on the differences between first and second degree murder would have been harmless because the jury would have necessarily resolved that issue under other proper instructions (i.e., the conspiracy instructions).
Defendant contends that even apart from the conspiracy instruction, there are grounds to reverse count 3 because it was an "even closer" case than the murder charge. Even if we accepted that count 3 was a "close case" in some regard, the juror's question concerned solely the difference between first and second degree murder. Because the issue raised by the juror's question does not bear on the circumstances that may have made count 3 a "close case," we find no prejudice as to the conviction on count 3.
Defendant also contends his conviction for possession of a firearm (count 4) should be reversed. We disagree. The juror's question did not concern count 4 at all. Therefore, counsel's participation in the formulation of the court's response to the question could not have affected the jury's verdict on count 4. Moreover, defendant repeatedly admitted to police that he had possessed the .380 firearm that night. We find no prejudice as to the conviction on count 4. II. THE TRIAL COURT DID NOT ERR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON VOLUNTARY MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER
Defendant argues the trial court erred by failing to instruct sua sponte on voluntary manslaughter as a lesser included offense of murder.
"A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. [Citations.] Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).)
"[T]he 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]" (People v. Manriquez (2005) 37 Cal.4th 547, 584.) Objectively, the passion aroused must be of the type "as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances...." (Ibid.)
Defendant points to Jesus's statements to police as evidence requiring a sua sponte instruction on sudden quarrel/heat of passion manslaughter. Jesus offered several versions of what happened on the night in question. In one of his retellings, he said that there was a group of eight or more people outside. At some point, Reyes and "the Asian guy were pushing the people around them." Jesus also made references to the group arguing and planning to "fight" in the "groves." Defendant argues this evidence supports a voluntary manslaughter instruction. But defendant does not point to anything indicating that Reyes pushed or otherwise assaulted defendant specifically. Nor does defendant point to direct evidence supporting the subjective component of heat of passion - i.e., that defendant actually acted in the heat of passion.
It is true, as defendant notes, that the subjective component can be inferred from other circumstantial evidence even where defendant denies involvement. But there is no such sufficient evidence here. A vague reference to Reyes "pushing" some of the eight or more people surrounding him is hardly sufficient to raise the inference that defendant personally and actually acted in heat of passion when he aided and abetted Juva.
In sum, all defendant cites is minimal evidence of a vague quarrel from which defendant urges us to draw speculative conclusions. Such "[s]peculative, minimal, [and] insubstantial" evidence does not trigger the requirement to instruct sua sponte on voluntary manslaughter. (See Simon, supra, 1 Cal.5th at p. 132.) III. THE ERRONEOUS INSTRUCTION OF THE JURY WITH THE BRACKETED SENTENCE IN CALCRIM NO. 400 WAS HARMLESS
Accordingly, we need not address whether defendant forfeited this argument by failing to object below.
The court instructed the jury with CALCRIM No. 400, entitled "Aiding and Abetting: General Principles." (CALCRIM No. 400.) The instruction essentially tells the jury that defendants can be guilty of crimes as direct perpetrators or as aiders and abettors. (Ibid.) At the end of the pattern instruction is an optional, bracketed sentence, which reads: "[Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]" (Ibid.) The bench notes for the instruction indicate that this bracketed sentence should be given if "the prosecution is also relying on the natural and probable consequences doctrine...." In that circumstance, the court would also give CALCRIM No. 402 or 403, which explain the natural and probable consequences doctrine and thereby identify the "specific circumstances" referenced in CALCRIM No. 400. But here, the trial court included the bracketed sentence in its instruction even though the prosecution was not relying on the natural and probable consequences doctrine as to first degree murder. As a result, the bracketed sentence was superfluous and should not have been included in the court's instruction. (See People v. Rivas (2013) 214 Cal.App.4th 1410, 1433-1434 (Rivas).) We now turn to whether that error was prejudicial.
When the prosecution relies on the natural and probable consequences doctrine, the bracketed sentence in CALCRIM No. 400 is appropriate because the "specific circumstances" it references will be subsequently identified by the natural and probable consequences doctrine instructions in CALCRIM Nos. 402 or 403. Of course, when (as here) the prosecution does not rely on the natural and probable consequences doctrine, CALCRIM Nos. 402 or 403 will not be given. Thus, when the bracketed sentence of CALCRIM No. 400 is mistakenly given without the inclusion of CALCRIM Nos. 402 or 403, the jury is essentially told that there are "some specific circumstances" in which a particular type of vicarious criminal liability arises but are not told what those "specific circumstances" are. In that situation, the inclusion of the bracketed sentence is superfluous and, therefore, erroneous. But its superfluity also demonstrates harmlessness. While the bracketed sentence touches "abstractly and preliminarily" (Rivas, supra, 214 Cal.App.4th at p. 1432) on the concept of natural and probable consequences, it does not identify the "specific circumstances" that trigger its applicability. In other words, without additional instruction identifying the "specific circumstances" in which the rule applies (e.g., CALCRIM Nos. 402-403), the bracketed sentence in CALCRIM No. 400 is "meaningless." (Rivas, supra, 214 Cal.App.4th at p. 1433.) Accordingly, it is "highly unlikely that the jury [will have] relied upon" it even when the bracketed sentence is erroneously included. (Id. at p. 1432, quoting People v. Prettyman (1996) 14 Cal.4th 248, 273.)
Defendant argues that this harmless error analysis does not apply here because in a separate instruction on count 3, the court instructed the jury on conspiracy liability, which included a reference to natural and probable consequences. Specifically, the court instructed:
"A member of a criminal conspiracy is criminally responsible for the crimes that he conspires to commit, no matter which member of the conspiracy commits the crime. A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
"A member of a conspiracy is not criminally responsible for the act of another member if that act was not done to further the common plan or is not a natural and probable consequence of the common plan."
"To prove that the defendant is guilty of the crimes charged in Count[] ... 3[], the People must prove that, one, the defendant conspired to commit one of the following crimes: murder; two, a member of the
conspiracy committed shooting at an inhabited dwelling to further conspiracy [sic]; and, three, shooting at an inhabited dwelling was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit."
The court initially said, "Counts 1 and 3" prompting the prosecutor to correct the court and say, "Your Honor, if I could just clarify. Counts 3 there, not Counts 1 and 3." The court responded, "Thank you."
Defendant argues these conspiracy instructions told jurors that defendant "could be found guilty of shooting at an inhabited dwelling if that crime was a natural and probable consequence of conspiracy to commit murder." Defendant contends that under CALCRIM No. 400, the jury might have applied this concept of natural and probable consequences outside the context of its conspiracy analysis of count 3. That fear is unfounded, because the conspiracy instructions expressly applied to count 3. No reasonable juror would interpret instructions that defendant could be found guilty of shooting at an inhabited dwelling if that crime was a natural and probable consequence of conspiracy to commit murder as also permitting the jury to convict of first degree murder as a natural and probable consequence of another crime. CALCRIM No. 400 does not change that conclusion. The bracketed sentence merely says that there are some specific circumstances that trigger a type of vicarious criminal liability. To the extent the conspiracy instructions can be considered one such circumstance, it is clearly limited in scope (i.e., it is a "specific" circumstance). Quite simply, nothing in the conspiracy instructions nor the bracketed sentence in CALCRIM No. 400, when read together, told the jury they could apply the conspiracy instruction's reference to natural and probable consequences outside the express contextual limitations contained therein.
See footnote 29.
Because no instruction invited the jury to apply the natural and probable consequences doctrine to convict on first degree murder, the fact that the jury was instructed on lesser included and lesser related offenses of murder and attempted murder does not impact our analysis.
We conclude the erroneous inclusion of the bracketed sentence in CALCRIM No. 400 was harmless under any standard of prejudice. IV. THE TRIAL COURT DID NOT ERR IN FAILING TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSE OF GROSSLY NEGLIGENT DISCHARGE OF A FIREARM
Accordingly, we need not determine whether defendant forfeited this argument by failing to object below.
Defendant contends the court prejudicially erred in failing to give a sua sponte instruction on grossly negligent discharge of a firearm as a lesser included offense of shooting at an inhabited dwelling (count 3).
" 'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, " 'that is, evidence that a reasonable jury could find persuasive' " [citation], which, if accepted, " 'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366, original italics.)
"The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant's firing range." (Overman, supra, 126 Cal.App.4th at p. 1362.) Consequently, the trial court only had a sua sponte duty to instruct on section 246.3 as a lesser included of section 246 if there was substantial evidence that no inhabited dwelling or occupied building was within the range of fire. Defendant points to no such evidence. And, of course, the fact that a bullet did hit an inhabited dwelling shows such a building was in the firing range. We see no evidence "which, if accepted, would absolve [the] defendant from guilt of the greater offense [citation] but not the lesser [citation]. [Citation.]" (People v. Licas, supra, 41 Cal.4th at p. 366, interal quotation marks omitted.)
Defendant contends that section 246 requires "conscious disregard" for the risk while section 246.3 requires only gross negligence. But there does not appear to be any cognizable difference between those two standards because " 'gross negligence' " in the criminal context simply means " ' "a disregard for human life or an indifference to consequences." ' [Citations.]" (People v. Ramirez (2009) 45 Cal.4th 980, 989; People v. White (2014) 230 Cal.App.4th 305, 316 [section 246 applies when defendant shows "a conscious indifference ..."].) That is why courts have observed "[t]he only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant's firing range." (People v. Overman (2005) 126 Cal.App.4th 1344, 1362, italics added (Overman).)
Defendant points to what he believes is another difference between sections 246 and 246.3. He contends that section 246 requires "conscious disregard" for the risk while section 246.3 requires only "gross negligence." But there does not appear to be any cognizable difference between those two standards. " 'Gross negligence' " in the criminal context simply means " ' "a disregard for human life or an indifference to consequences." ' [Citation.]" (People v. Ramirez, supra, 45 Cal.4th at p. 989 (Ramirez).) We discern little difference between that standard and section 246, which applies when a defendant has a "conscious disregard" for the probability of death or injury. (Overman, supra, 126 Cal.App.4th at p. 1357.)
Defendant disagrees, arguing that Ramirez, supra, 45 Cal.4th 980 stands for the proposition that section 246 has a "higher" mens rea requirement than section 246.3. Not so. The Supreme Court compared the two crimes as follows:
"Both offenses require that the defendant willfully fire a gun. Although the mens rea requirements are somewhat differently described, both are general intent crimes. The high probability of human death or personal injury in section 246 is similar to, although greater than, the formulation of likelihood in section 246.3(a), which requires that injury or death " 'could result.' " The only other difference between the two, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant's firing range." (Ramirez, supra, at p. 990.)
The Ramirez court was comparing the two crimes in several different respects. The excerpt's first sentence describes the statutes' respective requirements that the gun was fired volitionally; the second sentence compares their respective mens rea requirements; the third sentence compares their respective "formulation[s] of likelihood" of death or injury; and the fourth sentence compares section 246's requirement of a specified object within the firing range and section 246.3's lack of such a requirement. Thus, when Ramirez describes section 246 as having an aspect that is "greater than" section 246.3, it was not referring to the mens rea requirements, but was instead referencing the statutes' respective "formulation[s] of likelihood" of death or injury. While section 246 involves a "high probability of human death or personal injury," section 246.3 "requires that injury or death 'could result.' " (Ramirez, supra, 45 Cal.4th at p. 990.)
This confusion leads defendant to misread Overman, supra, 126 Cal.App.4th 1344. That case held that the trial court should have instructed on grossly negligent discharge of a firearm as a lesser included offense. Defendant posits that the basis for Overman's holding was the court's conclusion jurors could have harbored a reasonable doubt as to whether the defendant had the "higher mens rea required for section 246" (i.e., "conscious disregard".) Not so. Overman's holding was based on the fact that the jury could have concluded the defendant did not fire the gun "directly at or in close proximity to an occupied building ...." (Overman, supra, at p. 1363.) No bullet holes or points of impact were found on any buildings or objects on the property where the shooting occurred, and the eyewitness did not see where the defendant was pointing his gun when the shots were fired. (Id. at pp. 1362-1363.) "Accordingly the jury had reason to infer that defendant fired his rifle away from the general vicinity or range of the occupied office building." (Id. at p. 1363, original italics.)
Here, in contrast, there was clear evidence that an inhabited building was indeed struck by a bullet. Defendant counters that the absence of bullet strikes in Overman was only significant because "if defendant had been aiming in that direction, he certainly would have struck the building, from which jurors could infer that he was not aiming at the building." Indeed, that is the point. The jury could have concluded the Overman defendant did not fire "directly at or in close proximity to an occupied building." (Overman, supra, 126 Cal.App.4th at p. 1363.) In contrast, there is no evidence in the present case that defendant fired outside of "close proximity to an occupied building."
The trial court did not err in failing to instruct the jury with the lesser included offense of negligent discharge of a firearm. V. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICTS ON COUNTS 1 AND 3
Defendant raises a substantial evidence challenge to counts 1 and 3.
" 'In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value' in support of the court's decision. [Citation.] ' " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' " [Citation.]' [Citation.]" (People v. Alvarez (2014) 229 Cal.App.4th 761, 774.) First, defendant observes that no testifying eyewitness saw who fired the shots at Reyes or what defendant's role was. But other evidence raised inferences that defendant was armed, became involved in an argument with Reyes about someone getting arrested in the past, ran away from the scene after shots were fired, and lied about the circumstances of the encounter afterwards. On the basis of these inferences, a reasonable jury could have concluded defendant aided and abetted Juva's shooting of Reyes.
Here, we are analyzing whether there is substantial evidence to support a verdict, which is a very different standard than the one employed in harmless error review of the ex parte jury instruction issue above. (See, supra, Discussion I.A.2.b.) In that context, we were determining whether the evidence of premeditation was so overwhelming as to enable us to " 'declare a belief the denial of counsel was harmless beyond a reasonable doubt' " (Dagnino, supra, 80 Cal.App.3d at p. 989, brackets removed, italics added.) Here, we are merely determining whether there was solid, credible evidence of premeditation, regardless of whether a contrary finding would have also been reasonable.
There was evidence Arredondo fled into the orange grove while being chased. There was evidence that a .380 round found in the orange grove was most likely chambered in the gun defendant later hid at the Strathmore house. The round had a primer strike on it, suggesting someone had attempted to shoot the round but could not do so. Another round that had been chambered in the .380 gun was found in the sweatshirt defendant was lying on when police found him. Given the evidence tying the .380 gun to defendant and the .380 to an attempted firing in the orange grove, the jury could have reasonably concluded defendant was armed during the confrontation with Reyes that had occurred immediately prior.
Defendant contends the Attorney General is wrong to rely on evidence concerning the attempted murder of Arredondo, for which defendant was acquitted. "The only possible relevance" of such evidence, according to defendant, is propensity evidence. For the reasons explained above, propensity is not the only relevant inference from the evidence concerning count 2.
Defendant also argues that if the purpose of the confrontation was to kill Reyes as an informant, "it is hard to see why this was not done immediately" rather than after arguments and trips to the orange grove. First, Jesus mentioned trips to the orange grove in his frequently-changing statements to police shortly after the incident. The jury could have reasonable accepted parts of Jesus's testimony while rejecting the part about several trips to the orange grove, especially in light of his statements' overall inconsistency. Moreover, even if Jesus's recounting of that particular detail is credited, it does not preclude a finding of premeditation. As the prosecution's gang expert testified, gang members commit violent crimes to instill fear, promote the gang and engender respect within the gang. The Navarro residence was a gang hangout and several people were in the vicinity. It is not inconsistent with premeditation for Juva and defendant to "make a scene" before shooting Reyes, which could showcase to observers why Reyes was being confronted and what the consequences are for perceived betrayal.
Defendant also contends that the motive evidence - e.g., his letter calling Reyes a snitch - was weak. But "[t]he right to draw proper inferences from the evidence is a function of the trier of fact, and so long as its conclusions do not do violence to reason or challenge credulity, an appellate court will not reweigh the evidence [citation.]" (People v. Wise (1962) 199 Cal.App.2d 57, 59-60.)
Defendant additionally contends that his lies to police after the shooting are consistent with innocence because he was on felony parole. Thus, he had a reason to lie even if he was innocent. But the fact that defendant's lies could be reconciled with a finding contrary to the jury's does not warrant reversal. (See People v. Sanford (2017) 11 Cal.App.5th 84, 91, quoting In re George T. (2004) 33 Cal.4th 620, 631.)
Consequently, we reject defendant's substantial evidence challenges to counts 1 and 3. VI. DEFENDANT CONTENDS THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE PERSONAL FIREARM USE ENHANCEMENT TO COUNTS 1 AND 3
Defendant contends there is insufficient evidence he personally used a firearm in the commission of counts 1 (Reyes's murder) and 3 (shooting at an inhabited dwelling.) We agree.
Defendant's personal use of a firearm is the pivotal issue even though section 12022.53 can apply in some situations without personal use. (See § 12022.53, subd. (e)(1).)
"Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if ... the defendant did not personally use or discharge a firearm but another principal did. Section 12022.53, subdivision (e)(2), however, limits the effect of subdivision (e)(1). A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang ... in addition to an enhancement imposed pursuant to' section 12022.53. [Citation.]" (People v. Brookfield (2009) 47 Cal.4th 583, 590, original italics.) This rule encompasses not only additional prison terms imposed under section 186.22, subdivisions(b)(1)(A) through (C), but also penalty provisions such as the indeterminate life term provision of section 186.22, subdivision (b)(4). (Brookfield, supra, at pp. 591-596.) Here, defendant was sentenced to an indeterminate life term under section 186.22, subdivision (b)(4) and an additional term under section 12022.53. Such a sentence is only permissible if defendant personally used a firearm. (See § 12022.53, subd. (e)(2); Brookfield, supra, at p. 590.)
"Section 12022.53 imposes increasingly severe sentence enhancements for firearm use in the commission of certain felonies ...." (People v. Brookfield, supra, 47 Cal.4th at p. 589.) "Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. "Use" means, among other things, "to carry out a purpose or action by means of," to "make instrumental to an end or process," and to "apply to advantage." [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that "uses" be broadly construed.' [Citation.]" (People v. Thiessen (2012) 202 Cal.App.4th 1397, 1404.)
Mere possession of a firearm, without displaying it or otherwise engaging in " 'weapons-related conduct' " is insufficient to establish a firearm use enhancement. (See Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1003-1004 (Alvarado).)
Alvarado interpreted section 12022.5, which, like section 12022.53, involves a defendant who personally uses a firearm in the commission of certain felonies. (§ 12022.5, subd. (a) ["any person who personally uses a firearm in the commission of a" specified felony]; § 12022.53, subd. (b) ["any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm ..."].)
Here, there was substantial evidence defendant was armed with the .380-caliber gun. There was also substantial evidence that Juva shot Reyes seven times with a .22- caliber weapon, prompting Arredondo to flee towards the nearby orange grove with defendant chasing him. A .380-caliber round with a primer strike was found in the orange grove; and defendant admitted to detectives that he possessed the .380 firearm that night. One reasonable conclusion to draw from this evidence is that defendant pulled the trigger of the .380 firearm in the orange grove in an attempt to fire the round, but some malfunction occurred. Another .380-caliber round with a primer strike was found in the sweatshirt recovered with defendant.
From this evidence, it is reasonable to infer defendant "used" a firearm by firing it at least once in the orange grove, after Reyes was shot. The live round in the sweatshirt raises an inference defendant tried to fire the gun twice; though there is no evidence as to when or where this shot was attempted.
But none of these conclusions establish defendant personally "used" the .380 firearm "in the commission of" Juva's shooting at Reyes (i.e., the act underlying counts 1 and 3). There is no direct evidence defendant fired, displayed, or otherwise used a gun prior to or during Juva's shooting at Reyes.
The Attorney General argues that "the events in the orange grove happened immediately following the murder of Eric Reyes." While the temporal proximity gives rise to an inference defendant possessed the firearm during Reyes's murder, we fail to see how that fact constitutes substantial evidence defendant personally used a firearm "in the commission of" Reyes's murder. The only substantial evidence of defendant's firearm use concerns events after the crimes to which they are attached were completed. That said use occurred shortly after bears little relevance to whether defendant has "used" the gun during the preceding events.
Finally, the fact that defendant had a motive to use a firearm against Reyes is not substantial evidence that he actually did use a firearm in the commission of Reyes's murder.
The personal firearm use enhancements to counts 1 and 3 are reversed. VII. DEFENDANT HAS FAILED TO ESTABLISH A CONFRONTATION CLAUSE VIOLATION
As a result, we do not reach defendant's claim the jury instructions did not authorize a personal use enhancement on count 3.
A. Background
Defendant argues that the following exchange during the prosecution gang expert's testimony violated the confrontation clause:
"[Prosecutor]: Now, even in that experience one gang member will know when another gang member has a gun; isn't that true?
"[Robinson]: That's correct.
"[Defense counsel]: Objection; speculation.
"THE COURT: Sustained.
"[Prosecutor]: Have you talked to gang members that have told you that?
"[Robinson]: Yes.
"[Defense counsel]: Objection; irrelevant.
"THE COURT: Overruled. As to that.
"[Prosecutor]: Yes?
"[Robinson]: Yes."
Defendant did not object on hearsay or confrontation clause grounds. The Attorney General argues defendant forfeited his claims by failing to object. (See People v. Eubanks (2011) 53 Cal.4th 110, 142 [hearsay]; People v. Redd (2010) 48 Cal.4th 691, 730 [confrontation clause].) We do not resolve that issue because defendant argues that if an objection was required, his counsel was ineffective for failing to lodge one. Accordingly, we reach the merits of defendant's claim.
B. Law
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Absent an exception, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)
"A statement 'offered for some purpose other than to prove the fact stated,' however, is not hearsay. [Citations.] This latter principle has been applied to allow expert witnesses to testify about their general knowledge in a specialized area without being subject to exclusion on hearsay grounds. [Citation.]" (People v. Roa (2017) 11 Cal.App.5th 428, 442.)
But experts "may not relate the out-of-court statement of another as independent proof of the facts asserted in the out-of-court statement [citation]." (People v. Baker (2012) 204 Cal.App.4th 1234, 1246.)
"Ordinarily, an improper admission of hearsay would constitute statutory error under the Evidence Code. Under Crawford [v. Washington (2004) 541 U.S. 36], however, if that hearsay was testimonial and Crawford's exceptions did not apply, defendant should have been given the opportunity to cross-examine the declarant or the evidence should have been excluded. Improper admission of such prosecution evidence would also be an error of federal constitutional magnitude." (People v. Sanchez (2016) 63 Cal.4th 665, 685, fn. omitted (Sanchez).)
After the parties briefed the present case, the Supreme Court decided Sanchez, supra, 63 Cal.4th 665. That decision held that, "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Sanchez overruled a line of contrary cases that had held "that an expert's basis testimony is not offered for its truth ...." (Id. at p. 686, fn. 13.)
At the core of Sanchez's holding was a distinction between expert testimony conveying case-specific facts versus general knowledge. "[A]n expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds. [¶] By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-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, original italics.) Testimony relating noncase-specific information "has never been subject to exclusion as hearsay, even though offered for its truth[]" and Sanchez did not alter that point of law. (Id. at p. 685.)
General background information is not testimonial. (People v. Valadez (2013) 220 Cal.App.4th 16, 35.)
The Supreme Court provided the following hypothetical to demonstrate the distinction between case-specific facts and background information:
"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...." (Sanchez, supra, 63 Cal.4th at p. 677, italics added.)
C. Application
Here, Sergeant Robinson opined that gang members know when their fellow gang members are armed. The testimony did not reference any specific gang members but instead referenced "gang member[s]" generally. Robinson's testimony did not convey case-specific facts. Instead, Robinson's challenged testimony concerned " 'the ... habits of criminal street gangs' " which is a permissible subject of expert opinion. (People v. Vang (2011) 52 Cal.4th 1038, 1044.) Consequently, Robinson was "entitled to explain to the jury the ' matter' upon which he relied, even if that matter would ordinarily be inadmissible." (Sanchez, supra, 63 Cal.4th at p. 679.) VIII. DEFENDANT'S SENTENCE ON COUNT 4 SHOULD HAVE BEEN STAYED UNDER SECTION 654
In contrast, if Sergeant Robinson had testified that defendant knew Juva was armed on October 30, 2011, that would be case-specific information that would need to be either (1) based on Robinson's personal knowledge (unlikely) or (2) proven independently.
Defendant argues that his sentence on count 4 (possession of a firearm as a felon) should be stayed under section 654.
A. Section 654
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Plainly stated, section 654 " 'prohibits multiple punishment for the same "act or omission...." ' " (People v. Correa (2012) 54 Cal.4th 331, 337.)
" 'Although [section 654] "literally applies only where ... punishment arises out of multiple statutory violations produced by the 'same act or omission,' " [the Supreme Court has] extended its protection "to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" [Citation.]' [Citation.]" (People v. Ramirez (2006) 39 Cal.4th 398, 478.)
" ' " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citation.]" (People v. Jackson (2016) 1 Cal.5th 269, 459.)
When the trial court sentences a defendant to separate terms without making an express finding regarding defendant's objectives, it "is deemed to have made an implied finding each offense had a separate objective. [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129.) We will uphold that implied finding on appeal if supported by substantial evidence. (Ibid.)
B. Punishment of Firearm Possession and a Separate "Primary" Offense
" ' "[W]here the evidence shows a [firearm] possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper ...." ' [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143-1144.)
C. Application
The Attorney General argues that the evidence of motive and premeditation raises an inference that defendant "possessed the gun before he went to confront Eric Reyes." We agree that is a reasonable inference. But this argument proves too much. While the conclusion that defendant planned to murder (or help murder) Reyes indicates he likely possessed the .380 firearm ahead of time, any such possession would have, by definition, occurred pursuant to the objective of murdering Reyes. In other words, the motive/premeditation evidence indicates that defendant's possession of the gun was " ' "in conjunction with the primary offense" ' " (People v. Jones, supra, 103 Cal.App.4th at p. 1143) - i.e., murder.
Because the only evidence of defendant's " ' "antecedent" ' " (People v. Jones, supra, 103 Cal.App.4th at p. 1143) possession of the firearm indicates the possession was " ' "in conjunction with the primary offense" ' " (ibid.), section 654 prohibits simultaneous punishment of the firearm possession and the related primary offense. IX. DEFENDANT MUST BE CREDITED FOR TIME SERVED BETWEEN ORIGINALLY SCHEDULED SENTENCING HEARING DATE AND CONTINUED DATE
Defendant argues the court improperly failed give him presentence credits for the time between the originally scheduled sentencing hearing date of January 8, 2015, and the continued date of February 11, 2015. The Attorney General concedes the issue. When defendant is resentenced on remand, the trial court is directed to credit him for custody between January 8, 2015, and February 11, 2015. The custody credits shall be applied to all counts for which defendant is resentenced. X. DEFENDANT'S ENHANCEMENTS FOR A PRIOR SERIOUS FELONY AND PRIOR PRISON TERMS WERE NOT IMPOSED FOR OVERLAPPING OFFENSES
Defendant contends he was improperly subjected to a prior serious felony enhancement and an overlapping prior prison term enhancement.
A. Law
1. Serious Felony Enhancement
Defendants convicted of certain "serious" felonies are subject to a five-year sentence enhancement if they have "previously been convicted of a serious felony ...." (§ 667, subd. (a)(1).) The enhancement applies for each prior serious felony conviction "on charges brought and tried separately." (§ 667, subd. (a)(1).)
2. Prior Prison Term Enhancement
"Section 667.5(b) provides for an enhancement of the prison term for a new offense of one year for each 'prior separate prison term served for any felony,' with an exception not applicable here ...." (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
A prison sentence may not be enhanced "both for a prior conviction and for a prison term imposed for that conviction[.]" (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145.)
B. Facts
Here, the information alleged a section 667, subdivision (a)(1) enhancement based on a January 8, 2007, conviction for attempted first degree burglary (§§ 459, 664; case No. PCF166696).
The information says "PC664/459/1st." This conviction was also alleged to be a "strike" prior.
The information also alleged that "pursuant to ... section 667.5(b)" defendant suffered the following prior convictions all on January 8, 2007: (1) vehicle theft (Veh. Code, § 10851, subd. (a); case No. PCF169087); (2) possession of a controlled substance (Health & Saf., § 11350; case No. PCF164558); and (3) receipt of a stolen vehicle, trailer, or vessel (§ 496d, subd. (a); case No. VCF151355.) In a separate allegation, the information alleged that "pursuant to ... section 667.5(b)" defendant had been convicted of petty theft (§ 666; case No. VCF223223B) on August 27, 2009.
Defendant's sentences on counts 1 and 3 were each enhanced by five years under section 667(a)(1), and two years under section 667.5(b) (one for each prior prison term allegation.)
C. Application
If either of the prior prison term enhancements were based on the same conviction as the prior serious felony enhancement, defendant's sentence would run afoul of the rule that a prison sentence may not be enhanced "both for a prior conviction and for a prison term imposed for that conviction[.]" (People v. Jones, supra, 5 Cal.4th at pp. 1144-1145.)
Defendant argues that is what occurred here. He points to the probation report, which says, "[T]he 667(a)(1) PC special allegation that is being imposed stemmed from one of the charged 667.5(b) PC special allegations." We conclude the probation report is wrong. The information alleged attempted first degree burglary as the only basis for the serious prior felony enhancement. In contrast, the information did not base either of the prior prison term enhancements on the attempted first degree burglary conviction. Thus, the probation report's observation that the prior serious felony allegation "stemmed from one of the charged 667.5(b) PC special allegations" is clearly incorrect.
Because a prior serious felony enhancement must be pled in the charging document (see § 667, subd. (c) [sentencing enhancement applies if allegation "pled and proved"]), the enhancement imposed here had to be based on the attempted first degree burglary (i.e., the only prior serious felony conviction alleged.)
Defendant argues that the trial court's imposition of only one prior prison term enhancement on count 4 shows the trial court "concurred" with the probation report. But " 'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.' [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.) Here, the imposition of both the prior prison term enhancements and the prior serious felony enhancement was correct on the ground that the various enhancements were based on different convictions as clearly shown in the information. That the trial court may have believed it could impose the enhancements simultaneously for a different reason (i.e., that there was a material distinction between determinate and indeterminate terms in this context) does not warrant overturning the enhancement.
Because the prior serious felony conviction enhancement was based on a different conviction from the prior prison term enhancements, Jones was not violated here.
DISPOSITION
The personal firearm use enhancements to counts 1 and 3, are reversed. Defendant's conviction on count 1 is reversed, with directions as follows: If the People do not elect to retry defendant on first degree murder within 60 days after the filing of the remittitur, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of second degree murder, and shall resentence defendant in accordance with the views expressed in this opinion, including sections VIII through IX of the Discussion.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
MEEHAN, J.