Opinion
B287145
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. CAPICE PURNELL et al., Defendants and Appellants.
Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant Capice Purnell. Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant John Stewart White. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA455718) APPEAL from judgments of the Superior Court of Los Angeles County, Craig J. Mitchell and Katherine Mader, Judges. Affirmed in part; reversed in part; and remanded with instructions. Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant Capice Purnell. Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant John Stewart White. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
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Capice Purnell and John Stewart White appeal from judgments entered after the jury convicted them of second degree robbery and found true both personally used a firearm in the commission of the robbery and the offense was committed for the benefit of a criminal street gang. The jury also convicted Purnell of possession of a firearm by a felon and found true the offense was committed for the benefit of a criminal street gang.
On appeal, Purnell and White contend the victim's identification of them as the robbers was tainted by improperly suggestive police procedures. They further argue the trial court abused its discretion in denying their request for an evidentiary hearing on their motion to suppress the identification. In addition, they assert their due process rights were violated because the trial court instructed the jury that an eyewitness's level of certainty can be considered when evaluating the reliability of a witness's identification (CALCRIM No. 315).
Purnell and White also contend the trial court's refusal to bifurcate the gang enhancement allegation was prejudicial error and the evidence was insufficient to prove the primary activities element of the gang enhancement under Penal Code section 186.22. Separately, White claims the trial court abused its discretion in denying his motion for a separate trial.
Further undesignated statutory references are to the Penal Code.
Purnell and White also request we review the sealed record of the trial court's in camera hearing to determine whether the court disclosed all relevant complaints in response to their Pitchess motion seeking discovery of the personnel records of the police officers involved in the investigation. We conclude the trial court did not comply with proper procedure for an in camera review by failing properly to administer an oath to the custodian of records. The court also abused its discretion in failing to order records relating to two complaints against the investigating officer be disclosed. On this basis we conditionally reverse the judgments against Purnell and White and remand the matter for a further in camera review of the officer's complete personnel records, at which hearing the court must place the custodian of records under oath and make a proper inquiry into the records produced by the custodian. Following an in camera review and disclosure of additional documents, the trial court must conduct additional proceedings to determine whether the court's failure to disclose relevant records constituted prejudicial error.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538.
Purnell and White also raise various sentencing issues. They request we remand to allow the trial court to exercise its discretion under section 12022.53, subdivision (h), to strike the firearm enhancements. Purnell also contends the 10-year firearm enhancement the court imposed on count 6 for a felon in possession of a firearm was an unauthorized sentence. Purnell also requests we remand for the trial court to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.), which took effect January 1, 2019, to consider whether to strike the prior serious felony conviction enhancements the trial court imposed pursuant to section 667, subdivision (a)(1).
We conclude as to Purnell the trial court erred by applying a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), to his indeterminate term of 35 years to life instead of the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5). On this basis we reverse Purnell's sentence. On remand, the trial court must strike the 10-year gang enhancement on count 1 and impose (or strike) the 15-year minimum parole eligibility term on that count. As to count 6, the court must either strike the gang enhancement (§ 186.22, subd. (b)(1)(A)) or impose the 15-year minimum term for parole eligibility (§ 186.22, subd. (b)(5)). We also remand for the trial court to exercise its discretion whether to strike Purnell's prior serious felony conviction enhancements imposed pursuant to section 667, subdivision (a)(1).
In all other respects the judgments of conviction and sentences are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information charged Purnell and White with second degree robbery (§ 211; count 1) and specially alleged Purnell and White personally used a firearm (§ 12022.53, subd. (b)) and a principal personally used a firearm in the commission of the robbery (§ 12022.53, subds. (b) & (e)(1)). The information also charged Purnell with two counts of resisting an executive officer (§ 69; counts 2 & 5) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). As to counts 1 and 6, the information alleged the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C) [count 1]; id., subd. (b)(1)(A) [count 6].) Further, the information specially alleged Purnell suffered two prior convictions of a violent or serious felony under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and two prior serious felonies within the meaning of section 667, subdivision (a)(1).
The information also charged Purnell and White with a second robbery (count 3) and White with assault by means of force likely to produce great bodily injury in connection with the second robbery (§ 245, subd. (a)(4); count 4). However, the trial court dismissed counts 3 and 4 because the alleged robbery victim was in Mexico and refused to travel to the United States to testify at trial.
During the prosecution's case, the trial court granted the People's motion to dismiss count 2 (resisting arrest on April 23, 2016) in the interest of justice (§ 1385). At the close of the prosecution's case, the court granted Purnell's section 1118.1 motion to dismiss count 5 (resisting arrest on May 23, 2016).
Purnell and White pleaded not guilty and denied the special allegations. B. The Prosecution's Case
1. The robbery
In 2016 Demitrio Morales-Reyes (Morales) resided in an apartment at the Pueblo del Rio Housing Project, where he had lived for 15 years. At the time about 76 percent of the approximately 2,000 residents of the housing project were Hispanic, while 16 percent of the residents were Black. Since the 1950's, the Pueblo Bishop Blood gang, whose members are predominately Black, has claimed the housing project as its stronghold. Morales was aware that a street gang known as the "Pueblo" claimed the housing project as its territory.
We refer to Morales-Reyes as Morales, the name he uses to refer to himself.
The Pueblo Bishop Blood gang is referred to as the "Pueblo" or "Pueblos."
At approximately 1:00 p.m. on April 23, 2016 Morales and two acquaintances were repairing Morales's car in the housing project's parking lot. Morales saw two Black men, whom he identified at trial as Purnell and White, approach the three men from opposite directions. White approached the men from the street, then stood directly in front of Morales and pointed his black automatic gun at him. White came within three feet of Morales. Purnell came up from an alley behind the group, armed with a large black automatic gun. Morales saw White's face clearly because White's hooded sweatshirt only covered his forehead, allowing Morales to see White's face from the middle of his forehead down to his chin. Purnell wore a knitted black hood or hat that "had holes to expose the eyes, the nose, [and] the chin." Morales did not see any tattoos on White or Purnell.
When White was three feet from Morales, he told Morales to hand over his gold chain necklace. Morales turned to run away and saw Purnell behind him, pointing the gun at him. Purnell said to Morales, "Don't move, mother fucker." Morales quickly took off his gold necklace and gave it to White. Purnell and White told Morales not to file a police report, then they ran down an alley. The robbery lasted 10 to 15 seconds. When Purnell was about 38 feet away from Morales, Purnell took off his hood or hat and looked back, allowing Morales to see Purnell's face for about five seconds. Morales recognized Purnell and White from the neighborhood, but he did not know their names at the time. On cross-examination, Morales testified he knew Purnell and White were gang members because he saw them about two to three times a week in the housing project. At trial, Morales testified he was certain Purnell and White were the men who robbed him.
2. The police investigation
Morales did not contact the police immediately because he was scared the robbers would harm him or his family. About two to three hours after the robbery, a Black woman approached Morales in the housing project and threatened to set Morales and his family on fire if he reported the robbery. This threat caused Morales to report the robbery.
Between 3:00 and 4:00 on the afternoon of the robbery, Morales, his wife, and his daughter went to the police station to report the robbery. Morales filed a report with the police officer at the front desk. Morales spoke only Spanish, so his daughter translated for him. Morales testified that because he was nervous, he did not tell the desk officer that he saw Purnell's face. Morales and his family then met with Los Angeles Police Officer Louis Garcia, who had been assigned since 2014 primarily to monitor and investigate the Pueblo Bishop Blood gang.
On cross-examination, Morales testified he told the desk officer the robbers were gang members. But in the recorded interview with the desk officer Morales did not state the robbers were gang members.
Morales and Officer Garcia communicated in Spanish. Morales told Officer Garcia the first robber (White) was a Black man, six feet one inch tall, weighing about 200 pounds, and younger than 30 years old. He described the second robber (Purnell) as a Black man, about five feet nine inches tall, weighing about 185 pounds, and over 30 years old. Morales told Officer Garcia both were Pueblo gang members from the area. Officer Garcia selected photographs of Pueblo Bishop Blood gang members to show to Morales based on Morales's description of the robbers. Before showing the photographs, Officer Garcia gave Morales an admonition the photographs Officer Garcia was about to show Morales might not be the robbers. Officer Garcia then showed Morales individual digital photographs on his police department cell phone of active Pueblo Bishop Blood gang members that Officer Garcia had taken or collected to compile a gang book on the Pueblo Bishop Blood gang. Officer Garcia stopped the procedure at the fifth photograph because by then Morales had identified both Purnell and White. Prior to the April 23, 2016 robbery, Officer Garcia had spoken with Purnell almost 100 times and White 12 times in the housing project.
Officer Garcia testified the Pueblo Bishop Blood gang had approximately 300 active members.
Officer Garcia testified, "I gave [Morales] an admonition in Spanish letting him know that I was about to show him some photographs and that they may or may not be the people involved in the robbery. Also, to take note that facial features change, such as facial hair and skin tones differ between different pictures, but if he recognizes them or does not, to just please be honest with me." Morales testified Officer Garcia said he "worked that area" and he was going to show Morales some pictures. When asked on cross-examination whether Officer Garcia gave an admonition before showing him the photographs, Morales responded, "I don't remember. I don't think so."
On cross-examination, Morales testified he thought Officer Garcia showed him three pages of photographs, with five photographs in each page, but when asked about the pages he was shown, Morales added, "I don't know. I don't remember."
Officer Garcia then used a system called Calphoto to prepare two 6-pack photographic lineups, one for each defendant. Officer Garcia entered information into the Calphoto system about White's and Purnell's height, age, ethnicity, weight, facial hair, tattoos, and hair color. The Calphoto system selected the booking photographs of five other individuals whose head shape, eye placement, and other facial features were similar to each defendant. Officer Garcia colored all the shirts in the two photographic lineups black, so Morales "would only be able to focus on the face."
With his body camera recording, Officer Garcia read an admonition in Spanish to Morales before showing him the two 6-pack photographic lineups. Morales initialed, dated, and circled the photograph of Purnell in position number 4 in the first six-pack photographic lineup (People's exhibit 3). Morales initialed, dated, and circled the photograph of White in position number 5 (People's exhibit 4) in the second six-pack photographic lineup.
Morales acknowledged the police later moved him and his family from the housing project "[b]ecause it's very dangerous." He added, "It's a very dangerous gang."
3. Purnell's arrest and jail call
Officer Garcia arrested Purnell on April 25, 2016 for the robbery. Officer Garcia approached a parked vehicle in which Purnell was seated in the passenger's seat. When Purnell exited the vehicle, Officer Garcia attempted to handcuff him, but Purnell "became rigid" and Officer Garcia called over his partner, Officer Luis Lopez, to help take Purnell's arms and handcuff him. Purnell pushed against the officers, and the officers had difficulty controlling him. According to Officer Garcia, Purnell was "actively resisting," and he swung his right hand toward Officer Lopez. Officer Garcia pulled out his taser but did not use it. Purnell shouted to another gang member to help. The gang member approached, but Officer Garcia yelled at him to step back or Officer Garcia would use his taser on him.
On May 23, 2016 police officers again arrested Purnell for the robbery, this time in the housing project. Other officers transported Purnell to the police station for questioning. While in the police station's detention cell, Purnell told Officer Garcia, "Hey, Garcia, I didn't know you liked Black girls." After officers interviewed Purnell, Officer Garcia waited outside the interview room to transport Purnell to the city jail. Purnell walked within one to two feet of Officer Garcia and said in an aggressive manner, "Yeah, you better leave me alone." In a lowered voice, Purnell added, "You and your Black son, too." Officer Garcia is married to a Black woman, and they have a son together. Officer Garcia did not tell Purnell or anyone "on the street" about his family. Officer Garcia called his wife and told her to take their son to his parents' house. Officer Garcia felt Purnell's threat was credible and notified his supervisor.
The record does not reflect why Purnell was arrested two times for robbery. However, Officer Garcia testified he did not have a warrant for the first arrest.
White was arrested on July 24, 2016. While in jail, Purnell told an unidentified female during a recorded conversation, "My codefendant—hey, that fool in jail, though, fool." The woman asked, "Who?" Purnell responded, "Uh, my crimie." The woman queried, "Since when?" Purnell replied, "Bloods, he in jail. We—we—we in court on it, uh, this week, on Thursday. . . ."
White's preliminary hearing was held on Thursday, August 4, 2016. Purnell appeared in court on the same date.
4. The gang expert testimony
Los Angeles Police Officer Bryan Schilling previously testified 10 times as a gang expert on the Pueblo Bishop Blood gang. From 2012 to September 2015 Officer Schilling was assigned to the Newton division gang enforcement detail. During that period he was assigned to investigate and document four gangs, including the Pueblo Bishop Blood gang. From 2015 to the time of trial in 2017 Officer Schilling was in the crime suppression unit of the Metropolitan division, but he continued to investigate gang crimes in the Newton division, where he came into contact with gang members in that division.
Officer Schilling testified the primary activities of the Pueblo Bishop Blood gang were "[n]arcotic sales, home invasions, home burglaries, weapons trafficking, and street robberies." Officer Schilling had investigated approximately 50 crimes of narcotic sales, unlawful possession of firearms, and street robberies committed by the Pueblo Bishop Blood gang.
Officer Schilling had approximately 30 contacts with Purnell and opined Purnell was a member of the Pueblo Bishop Blood gang. Purnell had a Pueblo Bishop Blood gang tattoo on his abdomen and used the moniker "Infant Nutt," which indicated he was the third gang member to use the moniker "Nutt." Officer Schilling had 30 to 40 contacts with White and opined White was an active member of the Pueblo Bishop Blood gang. White had gang tattoos and went by the moniker "J-Killa 4," which indicated he was the fourth person to use the moniker "J-Killa." Officer Schilling had heard gang members use the term "crim[ie]" approximately 30 to 40 times, which meant "crime partner."
Although the trial transcript uses the spelling "crimey," we use the spelling in the jail call transcript, "crimie."
In response to a hypothetical robbery based on the facts of this case, Officer Schilling opined the robbery was committed for the benefit of the Pueblo Bishop Blood gang. He explained the robbery was committed in the Pueblo Bishop Blood gang territory against a housing project resident who recognized the robbers as gang members. Officer Schilling opined the brazen crime created fear and intimidation in the community and allowed the gang to operate more freely with crimes going unreported. The robbery was committed in association with the Pueblo Bishop Blood gang because two members of that gang committed the crime within the gang's area. In Officer Schilling's experience, rival gang members did not come to the housing project to commit street robberies. C. Defendants' Case
1. Purnell's witness identification expert
Dr. Iris Blandon-Gitlin, a cognitive psychology researcher and tenured professor, testified on behalf of Purnell as an expert on witness identification. Factors that influence the reliability of a witness's memory include how long the witness saw a suspect's face (with the identification being less reliable with less exposure time), the number of suspects (the more suspects, the less reliable the witness's memory), weapon focus (the witness will look at the weapon more than the suspect's face), and cross-racial identification (a witness tends to be less accurate in identifying people of other races and ethnicities). According to Dr. Blandon-Gitlin, it is "harder to read faces from another race" because "you didn't grow up with those faces." Moreover, simple disguises, which could include a hat, hood, or glasses, will impair a witness's recognition of a suspect's face and "are very detrimental to perception and memory." According to face perception research, "[i]f you isolate the eyes and nose[] and mouth, it's really hard to pick [the perpetrator] without the context of the face." When asked about a hypothetical robbery based on the facts of this case, Dr. Blandon-Gitlin described the incident as "a complex chaotic scene" with the witness's memory negatively affected by weapon focus, cross-racial identification, and the distraction of two robbers. As to the second robber, the use of a disguise, covering his face with only the eyes showing, and lack of distinctive features such as a mustache or tattoo, would also influence the witness's perception.
Although Morales described the hood or hat worn by Purnell as leaving exposed only his eyes, nose, or mouth, Dr. Blandon-Gitlin was given a hypothetical where only the eyes showed through the hood or hat.
Dr. Blandon-Gitlin opined identification procedures using suggestive questions or exposing the witness to photographs of other suspects may influence a witness's weak memory. If a witness is shown a series of single pictures, and one of those pictures is placed in a photographic six-pack lineup 20 minutes later, the witness's identification could be reliable, but alternatively could be based on the repetition of the same photograph.
2. White's witness identification expert
Dr. Mitchell Eisen, a psychology professor, testified for White as an expert on eyewitness memory and suggestibility. Dr. Eisen testified a showup, which he described as the presentation of a single photograph or individual in-person, is "considered suggestive." Further, Dr. Eisen opined if five pictures are presented one at a time to the witness, it is a showup "[i]f they're potential suspects." If an admonition is not used in connection with a showup, "[i]t enhances the suggestiveness." Dr. Eisen testified further, "Under suggestive conditions, we can create quick confident choosing, even when it's erroneous, to make it look just like accurate identification . . . ."
Dr. Eisen testified "a fair six-pack already has a built-in protection against chance identification" because the witness has "a one in six chance of choosing the culprit by chance alone." However, if a witness has been introduced to a photograph earlier, that witness's familiarity with the photograph will carry over to the subsequent identification. A "commitment effect" occurs when a witness commits to selection of a photograph as the culprit, then picks the same person in a six-pack photographic lineup because the witness has already decided on the culprit.
A victim report given immediately after an event is more reliable than a later identification because the witness's memory is fresher, more available, and less likely to be influenced by subsequent information, such as the witness being shown a photograph. When a witness testifies at trial months or years after the event, the witness comes to believe the defendant is the perpetrator, and further, it's often obvious who the perpetrator is because he or she is seated behind the defense counsel table.
3. White's police procedure expert
Timothy T. Williams, Jr., testified for White as an expert on police procedures. Williams owned a private investigation firm and retired from the Los Angeles Police Department (LAPD) as a senior detective supervisor after 29 years of service. From 1998 or 1999 until his retirement in 2003, Williams was in charge of the robbery division of the LAPD's south bureau. Williams trained numerous detective personnel in identification, including "the proper usage and application of six-pack identification and putting together six-packs properly to utilize in the course of investigations."
LAPD policy requires the police officer to read the admonition to the witness in English or Spanish, with the witness reading along with the officer. Photographic showups can be performed using a single photograph in exigent circumstances, such as a kidnapping investigation, or with a "mug book" format where the witness reviews a book of photographs. Williams explained, "The mug books are used when you come to a roadblock in your investigation, and you're looking for a suspect, so you bring a witness in and you have them look through your mug books of potential individuals that might be involved in these types of crimes." Williams explained, "It's common sense investigative practices . . . if I'm assigned . . . a certain gang, and a victim or a person was victimized in that gang area, I'm going to pull that book out from that gang area and look at it." A photographic six-pack lineup is used if "you have an idea of a person who may be involved in the crime" and photographs of other similar-looking individuals are added before showing the six-pack to the witness. Williams added, "You don't put the same person that's identified in the mug book into a six-pack, because now you have a problem with identification and it would be compromised and tainted . . . ." D. The Verdicts and Sentences
According to Williams, a gang book with 30 or 40 pages of photographs is a type of mug book.
The jury found Purnell and White guilty of second degree robbery on count 1 and found true the firearm enhancement allegation under section 12022.53, subdivision (b), and gang enhancement allegation under section 186.22, subdivision (b)(1)(C). The jury also found Purnell guilty on count 6 of possession of a firearm by a felon and found true the gang allegation under section 186.22, subdivision (b)(1)(A). In a bifurcated proceeding, the trial court found true the prior conviction allegations against Purnell.
The trial court sentenced Purnell under the three strikes law based on his two prior strike convictions. On count 1 for robbery, the court imposed an indeterminate term of 35 years to life calculated using the upper term of five years, plus 10 years for the firearm enhancement, 10 years for the gang enhancement, and two 5-year prior serious felony enhancements. (§ 667, subd. (e)(2)(A)(iii).) As to the enhancements on count 1, the court imposed a consecutive 30-year determinate term calculated using the same enhancements. On count 6 for a felon in possession of a firearm, the court imposed an indeterminate term of 25 years to life to run concurrent with count 1.
The trial court sentenced White to an aggregate term of 15 years in state prison. The court selected the upper term of five years for the robbery, plus 10 years for the firearm enhancement. The court imposed but stayed the 10-year gang enhancement.
Purnell and White timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying White's Motion To Sever the Trials
1. White's motion to sever
Prior to trial, White requested the trial court order separate trials. White argued the People's case against Purnell was stronger, and White would be prejudiced by introduction of Purnell's alleged threats to Officer Garcia and his jail call statement that his "codefendant" was his "crimie." The court denied White's motion, noting the People alleged Purnell and White committed the crimes together, the crimes were of the same class, and the charges were not stronger against one defendant than the other. The court had listened to the jail call and found there was "a high indicia of reliability" because the call "corresponds to the time sequence in which Mr. Purnell and Mr. White were respectively taken into custody." As to potential prejudice, the court found the statement "has the potential to be construed in a very negative way by a trier of fact, but my understanding is that that statement pertains only to Mr. Purnell, and it was in no way joined in or affirmed or acknowledged in any way by [White]." Therefore, the statement would not likely influence the jury as to White.
The trial court accepted the prosecutor's representation Purnell's jail call occurred on July 30, 2016, four days after White's arrest. Purnell's reference to the fact he and his "crimie" were scheduled to be in court on Thursday was accurate—both were in court the following Thursday, August 4, 2016.
2. Governing law
The Legislature's preference is for joint trials. (People v. Gomez (2018) 6 Cal.5th 243, 274; see § 1098 ["When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials."].) "Factors that may bear on a trial court's decision to order separate trials include '"an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony."'" (Gomez, at p. 274; accord, People v. Sánchez (2016) 63 Cal.4th 411, 464 (Sánchez).) "Prejudicial association might exist if 'the characteristics or culpability of one or more defendants [is] such that the jury will find the remaining defendants guilty simply because of their association with a reprehensible person, rather than assessing each defendant's individual guilt of the crimes at issue.'" (Sánchez, at p. 464.) "Severance may also be appropriate where '"there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence."'" (Gomez, at p. 274; accord, Sánchez, at p. 464.)
"We review the court's denial of severance for abuse of discretion based on the facts as of the time of the ruling." (Sánchez, supra, 63 Cal.4th at p. 464; accord, People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 819 (Daveggio).) "'If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial.' [Citation.] But, '[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the "defendant shows that joinder actually resulted in 'gross unfairness' amounting to a denial of due process."'" (People v. Gomez, supra, 6 Cal.5th at p. 274; accord, Sánchez, at p. 461.)
3. The trial court did not abuse its discretion
At the time of denial of White's motion to sever, the information jointly charged White and Purnell with two second degree robberies that occurred 20 days apart. The information also charged Purnell with the offense of felon in possession of a firearm in connection with the first robbery and White with assault with force likely to produce great bodily injury in connection with the second robbery. The trial court observed, "Both of these incidents allege that Mr. Purnell and Mr. White acted in a coordinated fashion to rob individuals in a particular neighborhood, specifically, a housing project. Force or violence was used against at least one of the alleged victims and that a weapon was used." As the Supreme Court held in Daveggio, supra, 4 Cal.5th at page 819, "'When defendants are charged with having committed "common crimes involving common events and victims," as here, the court is presented with a "'classic case'" for a joint trial.'" (Accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379 (Bryant) ["[I]mportant concerns of public policy are served if a single jury is given a full and fair overview of the defendants' joint conduct and the assertions they make to defend against ensuing charges."].) This is a classic case suited for joint trials—after the other counts were dismissed, the trial focused on the joint robbery by White and Purnell of a single victim, Morales.
White contends he was prejudiced by joint association with Purnell at trial because the People presented evidence Purnell resisted arrest and threatened Officer Garcia to prove the two counts of resisting an executive officer (§ 69; counts 2 & 5). White acknowledges the trial court dismissed one count of resisting an executive officer and granted a judgment of acquittal as to the other, but he argues damaging evidence of Purnell's conduct would not have been introduced at a separate trial. But the evidence was not damaging to White. White was not present when Purnell resisted arrest or threatened Officer Garcia. Nor was Purnell's conduct likely to affect the jury's determination of the central issue in this case—whether Purnell and White were the robbers. Further, Purnell's conduct in resisting an executive officer was not so "reprehensible" that the jury would find White guilty simply because of his association with Purnell. (See Sánchez, supra, 63 Cal.4th at p. 461; Bryant, supra, 60 Cal.4th at p. 383.)
White also argues he was prejudiced by the joint trial because, over his objection, Purnell introduced photographs showing White with gang members throwing gang signs to highlight that Purnell was not in the photographs. But "[t]he mere fact that defendants '"may attempt to shift responsibility to each other does not compel severance of their trials."'" (Daveggio, supra, 4 Cal.5th at p. 820; accord, Bryant, supra, 60 Cal.4th at p. 379 ["Simply because the prosecution's case will be stronger if defendants are tried together, or that one defense undermines another, does not render a joint trial unfair."].) Moreover, White ignores trial testimony from Morales, Officer Garcia, and Officer Schilling that White was a Pueblo Bishop Blood gang member, lessening the significance of the photographs. (Daveggio, at p. 820 ["'If the moving party's guilt can be established by sufficient independent evidence, "it is not the conflict alone that demonstrates . . . guilt," and severance is not required.'"]; People v. Winbush (2017) 2 Cal.5th 402, 456.].)
White further contends he was prejudiced by Purnell's jail call reference to "my crimie," which White claims would not have been admissible in a separate trial. But Purnell's statement would still have been admissible against White in a separate trial under Evidence Code section 1230 as a statement against penal interest. Evidence Code section 1230 provides in part, "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." "[T]he rationale underlying the exception is that 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements." (People v. Grimes (2016) 1 Cal.5th 698, 711; accord, People v. Gallardo (2017) 18 Cal.App.5th 51, 70.) Although Purnell's reference to "my crimie" (a crime partner) circumstantially implicated White, it also incriminated Purnell; thus, it was a statement against penal interest. (See People v. Arredondo (2018) 21 Cal.App.5th 493, 508 [codefendant's confession he shot victim and defendant then slit victim's throat was admissible as statement against penal interest].) B. The Trial Court Did Not Err in Denying Defendants' Request for an Evidentiary Hearing and Their Motion To Exclude the Identification Evidence
The admission of Purnell's statement does not violate White's Sixth Amendment rights under the confrontation clause because the statement was not testimonial. (People v. Dalton (2019) 7 Cal.5th 166, 208 ["'[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.'"]; People v. Cortez (2016) 63 Cal.4th 101, 128.) Purnell's statement to the unidentified female during the jail call was nontestimonial because it was "'not made to law enforcement officers, nor [was it] otherwise made under circumstances suggesting a primary purpose of creating evidence'" for White's prosecution. (Dalton, at p. 209; People v. Rangel (2016) 62 Cal.4th 1192, 1218.)
White also contends at a separate trial he could have objected to admission of Purnell's jail call under Evidence Code section 352, as more prejudicial than probative. But White has not explained why he could not have objected in the joint trial, nor has he shown the statement, while prejudicial, was not probative as to both Purnell and White. (See People v. Young (2019) 7 Cal.5th 905, 927 ["'"[P]rejudice"' for purposes of Evidence Code section 352 'does not mean damage to a party's case that flows from relevant, probative evidence.' [Citation.] 'Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues.'"]; People v. Cortez (2016) 63 Cal.4th 101, 128.)
Defendants contend the trial court abused its discretion in denying them an evidentiary hearing on whether to suppress the identification evidence and violated their due process rights in denying the motion. Neither contention has merit.
1. Defendants' motion to exclude identification evidence
Prior to trial, Purnell moved to suppress the identification evidence (including the five photographs on Officer Garcia's cell phone and the six-pack photographic lineups) as impermissibly suggestive. In preparation for the hearing, the trial court reviewed excerpts from the transcripts of Purnell's June 21-22, 2016 preliminary hearing, White's August 4, 2016 preliminary hearing, and the defendants' joint April 6, 2017 preliminary hearing. Officer Garcia testified at all three preliminary hearings; Morales testified only at Purnell's June 2016 preliminary hearing. The court also viewed the five individual digital photographs and the two six-pack photographic lineups shown to Morales.
The trial court ruled an objection by either defense counsel would apply to both Purnell and White. The court deemed Purnell's motion to exclude pretrial identification evidence as a motion by both defendants.
There were two preliminary hearings for each defendant because the case was dismissed and refiled.
At the June 20, 2017 hearing, Purnell's attorney, Madeline Chang, argued, "I think showing [Morales] five actual suspects of Pueblo Bishop members is highly suggestive, because [Officer Garcia] doesn't just pick people that are similar to the description. He had in his mind people that he wanted to show him—people that he wanted to get, people that he knew were gang members, and he just showed them one by one. And we don't know what happened." Chang requested an evidentiary hearing at which she could examine Morales on what Officer Garcia said prior to showing Morales the five photographs of Pueblo Bishop Blood gang members, including whether Officer Garcia said anything about the people in the photographs. Chang argued further, "We actually don't know what happened in between the time that a description was made and the six-pack was done, but we do know that at the time of the initial description that [Morales] made, he did not know who the people were that robbed him. He only saw most of the faces covered, partly covered, and he didn't mention that he had known this person for ten, 15 years."
In response to Chang's argument, the trial court stated as to its comparison of the five individual digital photographs and White's photograph in the six-pack lineup, ". . . I've gone over it repeatedly. I can't match the two." The court was able to "readily identif[y]" one of the digital photographs as Purnell, noting it was "reasonably close as to how he appears in this courtroom right now." But when the court compared the digital photograph of Purnell to Purnell's photograph in the six pack, the court found "marked difference[s]" with respect to the clothing, the facial hair, "and most significantly, the lighting on the six-pack photo shows a skin tone that is much lighter than that which is contained on the smart phone image." The court added, "[T]he angle of the shots are very different. Mr. Purnell's jaw line is far more pronounced in the six-pack photograph as opposed to a more elevated camera angle contained on the image from the smart phone."
The court acknowledged Morales's identification of Purnell and White in the series of individual photographs could potentially taint the subsequent six-pack lineup identification. But the court concluded under totality of the circumstances the identification procedures were not unduly suggestive because of the clear differences between the digital images on Officer Garcia's cell phone and the photographs in the two six-pack photographic lineups, and because Morales knew Purnell and White for many years before the robbery.
2. The trial court's denial of defendants' request for an evidentiary hearing was not abuse of discretion
Purnell and White contend the trial court abused its discretion by refusing to conduct an evidentiary hearing on the identification evidence under Evidence Code section 402 or Penal Code section 1538.5, subdivision (i). They assert the court should have allowed defendants to examine Morales outside the presence of the jury because there were discrepancies in Morales's description of the robbers and his ability to see Purnell's face, comparing Morales's initial report to the police and his testimony at Purnell's preliminary hearing. Further, they assert testimony was necessary to address whether Officer Garcia said anything suggestive before or while showing Morales the five digital photographs, pointing to the argument by White's counsel at the trial court hearing, ". . . I believe that certain things were said when those first images were shown to [Morales] to help him out a little bit." In light of the trial court's review of the preliminary hearing testimony, it did not abuse its discretion in refusing defendants' request to examine Morales again before trial.
Evidence Code section 402, subdivision (b), provides, "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . ." Penal Code section 1538.5, subdivision (i), provides for a "special hearing" for the trial court to consider a defendant's motion to suppress evidence. It provides that "[t]he court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing . . . ." (§ 1538.5, subd. (i).) Here, the trial court held a special hearing outside the presence of the jury and considered the preliminary hearing transcript, but it did not allow defendants to call witnesses who testified at the preliminary hearing.
An evidentiary hearing is not required in every case where identification procedures are challenged as suggestive. (Watkins v. Sowders (1981) 449 U.S. 341, 349 [no due process requirement for "[a] judicial determination outside the presence of the jury of the admissibility of identification evidence"]; People v. Cooks (1983) 141 Cal.App.3d 224, 306-307 ["No California decision, however, has held that due process of law requires a hearing outside the presence of the jury in each and every case."].) "[I]t is within the court's discretion whether or not to decide admissibility questions under Evidence Code section 402, subdivision (b) within the jury's presence." (People v. Williams (1997) 16 Cal.4th 153, 196 [trial court did not abuse its discretion in failing to hold hearing outside presence of jury on admissibility of gang evidence]; accord, People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1211 [trial court did not abuse its discretion in failing to conduct hearing before allowing prosecutor to call witness over defendant's objection that testimony was irrelevant and prejudicial], overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Although defendants point to Morales's inconsistent descriptions of the robbers and the identification procedures, the trial court reviewed testimony from the three preliminary hearing transcripts to understand "what communication was made when these individual photographs were shown to the alleged victim[]." Nothing in the record suggests additional testimony from Morales would have resolved any factual conflicts in the identification procedures Officer Garcia used. And, as the trial court noted, Purnell and White could cross-examine Morales at trial on the discrepancies in his various descriptions of the robbers, and whether Officer Garcia said anything when showing Morales the five individual digital photographs. (Watkins v. Sowders, supra, 449 U.S. at p. 348 ["'"Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi."'"]; United States v. Muse (1996) 83 F.3d 672, 675 [Watkins "expressly held that, because cross-examination before the jury is generally sufficient to determine the trustworthiness of identification evidence, the due process clause of the Fourteenth Amendment does not invariably require a judicial determination of this issue outside the presence of the jury."].)
White argues in his reply brief that because Morales only testified at Purnell's preliminary hearing, White did not have an opportunity to cross-examine Morales before trial. But he cites to no authority, nor is there, for the proposition a defendant has an individual right to examine a witness outside of the presence of the jury. The trial court's review of Morales's testimony at Purnell's preliminary hearing assisted the court in evaluating the motion to exclude the identification evidence, and White's attorney had a full opportunity to cross-examine Morales at trial. Further, the court's ruling on defendants' motion at the Evidence Code section 402 hearing was not binding on the trial court if it decided at trial the evidence should be excluded. (People v. Williams, supra, 16 Cal.4th at p. 196; People v. Hajek and Vo, supra, 58 Cal.4th at p. 1211.)
3. Governing law on identification procedures
"'A due process violation occurs only if the identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."' [Citations.] 'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' [Citations.] 'Against these factors is to be weighed the corrupting effect of the suggestive identification itself.'" (People v. Sanchez (2019) 7 Cal.5th 14, 35; accord, People v. Clark (2016) 63 Cal.4th 522, 556, 558.) "'"Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification."'" (People v. Thomas (2012) 54 Cal.4th 908, 930-931; accord, People v. Alexander (2010) 49 Cal.4th 846, 902.)
A defendant bears the "'burden of demonstrating the existence of an unreliable identification procedure.'" (People v. Sanchez, supra, 7 Cal.5th at p. 37; accord, People v. Avila (2009) 46 Cal.4th 680, 700 [defendant has "the burden of demonstrating the identification procedure was unduly suggestive"].) With respect to a photographic lineup, "'[t]he question is whether anything caused defendant to "stand out" from others in a way that would suggest the witness should select him.'" (Sanchez, at pp. 37-38; accord, People v. Cunningham (2001) 25 Cal.4th 926, 989-990.) "'"We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive."'" (People v. Thomas, supra, 54 Cal.4th at p. 930; accord, Sanchez, at p. 37.)
4. The identification procedures were not unduly suggestive
Purnell and White contend Officer Garcia's showing to Morales a series of individual photographs was the equivalent of single-photograph showups, making the procedure inherently suggestive. Further, they argue use of the five individual digital photographs was impermissibly suggestive because the photographs did not match Morales's description of the two robbers. Morales told the police Purnell was five feet nine inches tall, yet Officer Garcia included Purnell, who was nearly six feet three inches tall, in the set of individual photographs. As to White, Morales described him as tall (which he was), fat, and heavyset, but White's counsel in his closing argument noted White was not fat. In addition, Purnell and White contend it was unduly suggestive to show only Pueblo Bishop Blood gang members absent any description by Morales of the robbers having gang tattoos, throwing gang signs, calling out gang names, or other indicia of a gang crime.
A single-photograph showup is inherently suggestive but not necessarily unfair. (People v. Sanchez, supra, 7 Cal.5th at p. 37; People v. Ochoa (1998) 19 Cal.4th 353, 413.) In Sanchez, the Supreme Court held the showing of a single photograph to a five-year-old boy who had witnessed his mother's killing was "inherently suggestive," but under the totality of the circumstances it did not violate the defendant's due process rights. (Sanchez, at pp. 36-38.) After the boy told a police sergeant the man who killed his mother "had brought him ice cream and had a 'wisp on his chin,'" the boy's older brother provided the name of the man who had brought the boy ice cream. (Id. at pp. 21, 34, 36.) The sergeant obtained a past booking photograph of the defendant, in which he had a mustache but no goatee, showed the photograph to the boy, and asked whether the boy knew the person. (Id. at pp. 34-35.) The boy identified defendant as "the man he had seen 'that morning while his mom was bleeding.'" (Id. at p. 35.) Later that morning the boy identified defendant's photograph in a six-pack photographic lineup. (Ibid.) The Supreme Court observed, "In that photograph, defendant had both a mustache and a goatee, as did the others in the lineup." (Ibid.)
The Supreme Court concluded the inherent suggestiveness of the single-photograph showup was outweighed by other factors showing the reliability of the identification under the totality of the circumstances. (People v. Sanchez, supra, 7 Cal.5th at p. 36.) The sergeant "merely showed [the witness] a photograph and asked if he knew the person," which "did not explicitly suggest the answer." (Ibid.) Moreover, defendant's facial hair in the single-photograph showup was different than his appearance on the day of the shooting and the boy's description. (Ibid.) Further, the single-photograph showup "occurred mere hours after the murders." (Id. at p. 37.)
Unlike the single-photograph showup in People v. Sanchez that was inherently suggestive, Officer Garcia showed Morales a series of five individual digital photographs, which procedure by its nature is less suggestive (and not significantly different from showing a witness five photographs on a single page in a mug book). Officer Garcia stopped at the fifth photograph because Morales by then had identified the two robbers. Whereas in People v. Sanchez the Supreme Court questioned whether the showing of a single photograph to the boy was necessary (People v. Sanchez, supra, 7 Cal.5th at p. 34), Officer Garcia only knew from Morales's identification the robbers were members of the Pueblo Bishop Blood gang, not their identities.
Even if the showing of a series of five individual photographs was somewhat suggestive, Morales's pretrial identification of Purnell and White was not impermissibly suggestive under the totality of the circumstances. Morales viewed the series of individual photographs about two to three hours after the robbery. Officer Garcia testified he gave Morales an admonition in Spanish before showing him the five individual photographs on his cell phone, stating the photographs "may or may not be the people involved in the robbery," the facial features may have changed, and "if he recognizes them or does not, to just please be honest with me." Although Morales testified Officer Garcia "just said he was going to show me pictures," we review deferentially the trial court's determination Officer Garcia's more detailed account was credible. (People v. Sanchez, supra, 7 Cal.5th at p. 37; People v. Thomas, supra, 54 Cal.4th at p. 930.) Further, there was no evidence Officer Garcia suggested the photographs were of either of the robbers.
While it is true Morales told the desk officer he could not see the face of one of the robbers, at trial he testified he saw Purnell's face for five seconds from 38 feet away because Purnell took off his hood or hat and looked back as he ran away. The robbery occurred in the early afternoon at approximately 1:00 p.m. in the housing project's parking lot. Even though Morales saw Purnell's face for only five seconds, he had lived in the housing project for 15 years and had seen Purnell and White there about two to three times a week. (See People v. Sanchez, supra, 7 Cal.5th at p. 37 ["[A]lthough [the boy] probably had only a fleeting opportunity to observe the man in the dimly lit bedroom at the time of the offense, he had ample opportunity to observe and get to know defendant the weekend before the Monday morning murders."].)
Purnell and White also contend the showing of the individual photographs tainted the six-pack photographic lineups because only defendants' photographs were common to the cell phone photographs and those in the six-packs. We find no taint given the difference in the photographs. (See People v. Sanchez, supra, 7 Cal.5th at pp. 34-35, 37-38 [photographic lineup shown after single-photograph showup on same morning was not impermissibly suggestive because the defendant had mustache in single-photograph showup, whereas in photographic lineup "[a]ll of the photographs were of persons with both a goatee and a mustache"]; People v. Yeoman (2003) 31 Cal.4th 93, 124 [procedure under which detective showed witness two photographic lineups one month apart, with the defendant's photograph in the fourth position each time, but with a more recent photograph the second time, was not unduly suggestive]; see also People v. DeSantis (1992) 2 Cal.4th 1198, 1224 ["The fact that defendant was the only person common to both [the photographic and in-person] lineups did not per se violate his due process rights."]; People v. Blair (1979) 25 Cal.3d 640, 658, 660-661 [rejecting argument that witness was unduly influenced in his identification of the defendant in an in-person lineup where more than two months earlier witness was shown four sets of photographic lineups in which the defendant appeared in three lineups, each containing between six and 15 photographs].)
Although Officer Garcia showed Morales the six-pack photographic lineups 20 minutes after Morales identified Purnell and White from the digital photographs, we, like the trial court, are unable to match White's digital photograph from the cellphone with his photograph in the subsequent six-pack photographic lineup. As to Purnell, one of the digital photographs appears to match his photograph in the six-pack photographic lineup, but the two photographs have significant differences. Purnell's digital photograph was taken or collected by Officer Garcia on his cell phone, while Purnell's photograph in the six-pack lineup was from a past booking photograph. As the trial court observed, the camera angles in the two photographs are different, which makes Purnell's jawline more pronounced in the photograph in the six-pack lineup as compared to the digital image. Moreover, Purnell appears to have more facial hair and a darker skin tone in the digital photograph as compared to the photograph in the six-pack lineup. C. The Trial Court Properly Instructed the Jury with CALCRIM No. 315
The trial court instructed the jury with CALCRIM No. 315, as modified: "You have heard eyewitness testimony identifying the defendants. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness'[s] ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description, and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Were there any other circumstances affecting the witness'[s] ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
On appeal, Purnell and White argue their due process rights were violated because the trial court's use of CALCRIM No. 315 instructed the jury to evaluate Morales's certainty when he made the identifications in determining whether he gave truthful and accurate testimony. They contend overwhelming scientific evidence shows a witness's certainty or confidence is not a reliable indicator of accuracy.
Purnell and White forfeited this argument by failing to object to the jury instruction or to request the trial court modify the instruction. (Sánchez, supra, 63 Cal.4th at p. 461 [defendant forfeited challenge to jury instruction on witness certainty because he did not request modification]; People v. Ward (2005) 36 Cal.4th 186, 213 [no sua sponte duty to modify jury instruction on witness's certainty].) Even if defendants had not forfeited this contention, the Supreme Court has upheld the jury instruction's reference to witness certainty against similar due process challenges. (See Sánchez, at p. 462 [no error or prejudice in instructing jury with CALJIC No. 2.92 on witness certainty as a factor relevant to the accuracy of witness's identification]; People v. Johnson (1992) 3 Cal.4th 1183, 1232 ["The trial court did not err . . . in instructing the jury on the 'certainty' factor."]; see also People v. Rodriguez (2019) 40 Cal.App.5th 194, 199-200 [Sánchez "reiterated three decades of California Supreme Court precedent that a trial court may instruct the jury to consider eyewitness certainty."].) Because we are bound by the holdings of the Supreme Court, we conclude the trial court did not err in instructing the jury with CALCRIM No. 315. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308 ["'[I]t is established that a holding of the Supreme Court binds all of the lower courts in the state, including an intermediate appellate court.'"]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court."].) D. The Trial Court Did Not Abuse Its Discretion in Denying Defendants' Motion To Bifurcate the Gang Allegation
This issue is pending before the Supreme Court following its grant of review of People v. Lemcke, review granted October 10, 2018, S250108.
1. Defendants' motion to bifurcate the gang allegation
Prior to trial, Purnell filed a motion to bifurcate trial of the gang enhancement allegation, which the People opposed. At the hearing, the prosecutor argued the gang evidence was relevant to show the robbers' intent, motive, and identity, and it was also relevant to the resisting charge based on the alleged threat Purnell made to Officer Garcia. Purnell, joined by White, asserted there was no evidence the robbery of Morales was committed by two gang members because the robbers were covered up, Morales did not see any tattoos, and the robbers did not throw gang signs or call out the gang's name. As to Officer Garcia's state of mind when Purnell made threats against him, Purnell argued that count should be severed from the robbery count.
In ruling on the motion, the court considered the People's contention "that perhaps the gang name didn't need to be uttered, gang signs didn't need to be thrown, because given the racial dynamic that exists at this particular time within those housing projects, if you're Latino and you are robbed by an African-American, there is going to be an understanding that that is being done by a member of a gang that controls, so to speak, this particular housing project." The court noted the gang expert testified at the preliminary hearing the robberies took place in one of the most prominent, visible streets within the Pueblo Bishop Blood gang area. The court denied the motion, but noted "it is somewhat of a close call." The court reasoned, "[T]he nature of where these alleged robberies took place, the time of day that they took place, the visibility that such robberies would have been subject to, the fact that the evidence deduced at the preliminary hearing indicated that both Mr. Purnell and Mr. White were known figures in the housing projects, and this was an area that Pueblo Bishop Blood gang members normally hang out at convinces this court that the probative value proffered by the People does outweigh what the court recognizes as the inherently significant prejudicial impact of gang evidence."
2. Governing law
A trial court has discretion to bifurcate trial of a gang enhancement allegation from the trial of the substantive offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez); People v. Franklin (2016) 248 Cal.App.4th 938, 952 (Franklin).) The defendant has the burden "'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (Hernandez, at p. 1050; accord, People v. Garcia (2016) 244 Cal.App.4th 1349, 1357 (Garcia).) Bifurcation is warranted where gang evidence "may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, at p. 1049; accord, Franklin, at p. 952.)
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050; accord, Garcia, supra, 244 Cal.App.4th at p. 1357.)
"Given the public policy preference for the efficiency of a unitary trial, a court's discretion to deny bifurcation of a gang allegation is broader than its discretion to admit gang evidence in a case with no gang allegation." (Franklin, supra, 248 Cal.App.4th at p. 952, citing Hernandez, supra, 33 Cal.4th at p. 1049; accord, Garcia, supra, 244 Cal.App.4th at p. 1357.) "Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation." (Hernandez, at p. 1050; accord, Franklin, at p. 952.) We review the trial court's denial of the motion to bifurcate trial of the gang enhancement allegation for an abuse of discretion. (Hernandez, at p. 1048; accord, Franklin, at p. 952.)
3. The trial court did not abuse its discretion in denying the motion to bifurcate the gang allegation
Purnell and White contend the trial court abused its discretion in denying their motion to bifurcate the gang allegation because there was no evidence the robbery was gang-related. As below, they argue the robbers did not announce their gang identity to intimidate Morales, and the robbers did not wear gang-related clothes, show their tattoos, or throw gang signs, and instead attempted to conceal their identities. But the trial court reasonably concluded the robbers did not need to announce their gang identity because the robbery was a coordinated effort by two Black members of the Pueblo Bishop Blood gang to rob a Latino victim in a predominantly Latino housing project controlled by the Black gang.
Evidence of Purnell's and White's membership in the Pueblo Bishop Blood gang was probative of their motive to commit the robbery. (See Hernandez, supra, 33 Cal.4th at p. 1051 [trial court did not abuse its discretion in denying motion to bifurcate because gang evidence was relevant to motive and use of fear in robbery where "robbery was a coordinated effort by two gang members who used gang membership as a means to accomplish the robbery"]; Franklin, supra, 248 Cal.App.4th at p. 953 [trial court did not abuse its discretion in denying motion to bifurcate because gang evidence was relevant to prosecutor's theory defendant's "motive in committing the crimes was to protect his status in the gang and strike back at [the victim] for disrespecting him and his gang"]; People v. Garcia, supra, 244 Cal.App.4th at p. 1358 [trial court did not abuse its discretion in denying motion to bifurcate where gang evidence was relevant and probative of motive to commit robberies]; People v. Gonzalez (2012) 210 Cal.App.4th 724, 737 [trial court did not abuse discretion in admitting gang evidence where it was probative of defendant's motive for shooting and killing rival gang member].)
In addition, evidence of Purnell's and White's gang membership and the gang's control of the housing project was relevant to establish the identity of the robbers. Although Morales observed the robbers for a brief period (10 to 15 seconds), he was able to identify Purnell and White in the photographs because he had seen them about two to three times a week at the housing project, where Morales had lived for the prior 15 years. Morales's identification of the robbers as gang members also explained why Officer Garcia showed Morales individual photographs of active Pueblo Bishop Blood gang members. Given the probative value of the gang evidence to prove Purnell and White committed the robbery, the trial court did not abuse its discretion in denying the motion to bifurcate trial of the gang allegation. E. Substantial Evidence Supports the "Primary Activities" Element for the Gang Enhancement
Purnell and White contend substantial evidence did not support the gang enhancement because the gang expert's testimony did not provide sufficient proof of the primary activities of the Pueblo Bishop Blood gang. This contention lacks merit.
"[Section 186.22,] subdivision (b)(1) enhances the sentence for any 'felony committed for the benefit of . . . any criminal street gang.' The definition of a criminal street gang in section 186.22, subdivision (f) requires that the gang have 'as one of its primary activities' the commission of one or more of the criminal acts enumerated in subdivision (e). Evidence of both past offenses and the currently charged offenses may be considered in determining whether one of the primary activities of the gang is committing one or more of the offenses enumerated in the statute." (People v. Nguyen (2015) 61 Cal.4th 1015, 1068; accord, People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith) ["The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations."].)
"'Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.'" (People v. Nguyen, supra, 61 Cal.4th at p. 1068; accord, Sengpadychith, supra, 26 Cal.4th at p. 324.) In addition, expert testimony may be sufficient proof of a gang's primary activities, which may be based on a gang expert's conversations with gang members, personal investigation of crimes committed by gang members, and information from other law enforcement officers. (Sengpadychith, at p. 324; see People v. Prunty (2015) 62 Cal.4th 59, 82 [gang expert's testimony of gang's "various criminal practices, including homicide, assault, and firearms offenses" was "likely sufficient" to establish primary activities element]; Nguyen, at p. 1068 [expert's testimony listing multiple crimes enumerated in statute as primary activities of gang provided sufficient proof of gang's primary activities]; People v. Vy (2004) 122 Cal.App.4th 1209, 1226 ["proof of the 'primary activities' element was satisfied through testimony by a police gang expert" of gang's "criminal actions that constituted predicate crimes under the gang statute"].)
We review the jury's implied finding the primary activities element of the gang enhancement was proven for substantial evidence. (People v. Albillar (2010) 51 Cal.4th 47, 59-60 ["In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."]; People v. Garcia, supra, 244 Cal.App.4th at p. 1366 ["On review, the question of whether the prosecution presented sufficient evidence to support a gang enhancement . . . is a question of fact reviewed under the substantial evidence standard."].)
Officer Schilling, the gang expert, testified the primary activities of the Pueblo Bishop Blood gang were "[n]arcotic sales, home invasions, home burglaries, weapons trafficking, and street robberies." These activities include enumerated offenses under section 186.22, subdivision (e)(2) (robberies), (4) (narcotic sales), (11) (burglaries), and (22) (firearm sales). Officer Garcia testified regarding three predicate offenses, including a Pueblo Bishop Blood gang member's April 2016 conviction of possession of a controlled substance for sale in April 2016. In addition, Officer Schilling's testimony about the gang's primary activities was based on his personal knowledge as a gang officer in the Newton division, where he was assigned to monitor and investigate the Pueblo Bishop Blood gang from 2012 until September 2015. Even after moving to the Metropolitan division, Officer Schilling continued to investigate gang crimes and come into contact with gang members in the Newton division area. Officer Schilling testified he personally investigated approximately 50 crimes of narcotic sales, unlawful possession of firearms, and street robberies committed by the Pueblo Bishop Blood gang. This expert testimony provided substantial evidence of the gang's primary activities. F. The Trial Court Failed To Disclose Information Relating to Two Complaints at the Pitchess Hearing
Purnell and White contend they suffered cumulative prejudice because of the tainted witness identification coupled with the unduly prejudicial gang evidence. Because we reject their claims of error, there was no cumulative prejudice. (People v. Powell (2018) 6 Cal.5th 136, 194 [no cumulative prejudice where "[a]ny errors, actual or arguable, were minor"]; People v. Edwards (2013) 57 Cal.4th 658, 746 [no cumulative prejudice because there was no error, or if assuming error, there was no prejudice]; People v. Tully (2012) 54 Cal.4th 952, 1021 [defendant did not suffer cumulative prejudice where there was no error or, if error, no individual prejudice].)
1. Purnell's Pitchess motion
On May 1, 2017 Purnell filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) pursuant to Evidence Code section 1043, seeking discovery of personnel records concerning "acts of violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, false or misleading internal reports . . . , and other evidence of misconduct amounting to moral turpitude . . . , and use of excessive force" involving Officer Garcia and his partner, Officer Lopez. On May 23 the trial court granted the Pitchess motion, ordering disclosure of information concerning the officers' dishonesty and excessive use of force. On May 24 the court conducted an in camera hearing and ordered disclosure information regarding four complaints involving Officer Garcia and no disclosure as to Officer Lopez.
Judge Katherine Mader.
2. The trial court failed to comply with its obligations under Pitchess
"'When a defendant shows good cause for the discovery of information in an officer's personnel records, the trial court must examine the records in camera to determine if any information should be disclosed.'" (People v. Rivera (2019) 7 Cal.5th 306, 338; accord, People v. Anderson (2018) 5 Cal.5th 372, 391.) "'The court may not disclose complaints over five years old, conclusions drawn during an investigation, or facts so remote or irrelevant that their disclosure would be of little benefit.'" (Rivera, at p. 338; accord, People v. Winbush, supra, 2 Cal.5th at p. 424; see Evid. Code, § 1045, subd. (b).) "'Pitchess rulings are reviewed for an abuse of discretion.'" (Rivera, at p. 338; accord Anderson, at p. 391.)
Purnell requests we review the sealed portion of the record, which includes the transcript of the in camera hearing. On appeal, White joins in this request. The People do not object to our review. Purnell and White's request for an independent review of the sealed record is proper. (People v. Anderson, supra, 5 Cal.5th at p. 391 ["Defendant properly asks us to review the sealed record of the in camera hearing to determine whether the court erroneously failed to provide discovery that he should have received."]; People v. Rivera, supra, 7 Cal.5th 306, 338-339 [court reviewed sealed transcript of both in camera hearings and sealed exhibits].)
Although White did not separately file a Pitchess motion in the trial court, he would have had the ability to examine Officer Garcia and any witnesses called by Purnell in response to the Pitchess disclosures. We therefore consider the request by both Purnell and White to review the record of the in camera hearing.
We have reviewed the sealed record. Although the trial court asked the custodian of records to "swear that [he had] looked in all nooks and crannies at L.A.P.D. for any complaint at whatever stage it might be," the court did not place the custodian under oath under penalty of perjury. (See Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 42-43 ["Questioning the custodian of records under oath regarding which documents were produced helps both to facilitate appellate review and to ensure that information is not withheld from the movant improperly."]; People v. Mooc (2001) 26 Cal.4th 1216, 1230, fn. 4 ["[C]riminal defendants are protected by the fact that a representative of the custodian of records is placed under oath before responding to a trial court's questions during the in camera inspection of records."]; People v. White (2011) 191 Cal.App.4th 1333, 1335 ["In order to protect the defendant's right to a fair trial, the custodian must be placed under oath."].)
Evidence Code section 710 provides, as relevant here, "Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law . . . ." Code of Civil Procedure section 2094 provides as to the form of the oath, "(a) An oath, affirmation, or declaration in an action or a proceeding, may be administered by obtaining an affirmative response to one of the following questions: [¶] (1) 'Do you solemnly state that the evidence you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth, so help you God?' [¶] (2) 'Do you solemnly state, under penalty of perjury, that the evidence that you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth?' [¶] (b) In the alternative to the forms prescribed in subdivision (a), the court may administer an oath, affirmation, or declaration in an action or a proceeding in a manner that is calculated to awaken the person's conscience and impress the person's mind with the duty to tell the truth. The court shall satisfy itself that the person testifying understands that his or her testimony is being given under penalty of perjury." The trial court's request that the custodian of records "swear" he had looked for all relevant records does not comply with this section.
As the Court of Appeal in People v. White, supra, 191 Cal.App.4th at page 1340 explained, in concluding the trial court's failure to administer the oath to the two custodians of records was prejudicial error: "The court's finding that no such documents existed was based entirely on [the custodian's] unsworn testimony to that effect. '[U]nsworn testimony does not constitute "evidence" within the meaning of the Evidence Code.'"
Further, the court's simple inquiry as to whether the custodian of records "looked in all nooks and crannies" does not satisfy the trial court's obligation to ensure the custodian "brought to the trial court 'all "potentially relevant" documents to permit the trial court to examine them for itself' . . . and stated for the record 'what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion.'" (People v. Rivera, supra, 7 Cal.5th at p. 339.) The trial court also abused its discretion in failing to disclose discoverable information regarding two complaints against Officer Garcia, complaint Nos. 16-001064 and 16-002571.
Because the trial court did not comply with its obligations under Pitchess, we conditionally reverse the judgments against Purnell and White and remand the matter for a further in camera review of Officer Garcia's complete personnel records, at which the court must place the custodian of records under oath and make a proper inquiry into what records have been produced. The court is to review all documents produced by the custodian for any records relating to dishonesty and excessive use of force. The trial court shall order the LAPD to provide to Purnell's attorney documents relating to complaint Nos. 16- 001064 and 16-002571, as well as any other materials the court at the in camera hearing determines are relevant.
We do not order an additional in camera review of records relating to Officer Lopez because he did not testify at trial and any testimony would only have been relevant to count 2 against Purnell for resisting arrest on April 23, 2016, which charge was dismissed at trial. Thus, any error in not ordering disclosure as to Officer Lopez was harmless error. (People v. Gaines (2009) 46 Cal.4th 172, 182; People v. Samuels (2005) 36 Cal.4th 96, 110.)
Purnell urges us to order the trial court to require broad disclosures pursuant to section 832.7, subdivision (b)(1)(C), which statute was amended by Senate Bill No. 1421 (2017-2018 Reg. Sess.), effective January 1, 2019. (Stats. 2018, ch. 988, § 2) Senate Bill No. 1421 designated as three types of peace officer records (not at issue here) as nonconfidential: records relating to the discharge of a firearm at or use of force resulting in death or great bodily injury against a person; records relating to an incident in which a sustained finding is made that an officer engaged in sexual assault against a member of the public; and records relating to an incident in which a sustained finding is made of a peace officer's dishonesty. (Association for Los Angeles Deputy Sheriffs v. Superior Court, supra, 8 Cal.5th at p. 46.) However, section 832.7, subdivision (g), provides, "This section does not affect the discovery or disclosure of information contained in a peace or custodial officer's personnel file pursuant to Section 1043 of the Evidence Code." Similarly, section 832.7, subdivision (h), provides, "This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531." As the Supreme Court observed in Association for Los Angeles Deputy Sheriffs, after quoting section 832.7, subdivisions (g) and (h), "It may be that Senate Bill 1421 does not expand the set of information that a criminal defendant is entitled to receive through the Pitchess process, an issue on which we need take no position here." (Association for Los Angeles Deputy Sheriffs, at p. 46.) We likewise do not reach whether Senate Bill No. 1421 has expanded the scope of disclosures in response to a Pitchess motion, which is not yet before us on appeal given the trial court's failure to order full disclosure to Purnell.
After the disclosures are made, the court must conduct additional proceedings to allow defendants an opportunity to demonstrate the failure to conduct a complete in camera review and order disclosure of all relevant documents constituted prejudicial error. (See People v. Gaines (2009) 46 Cal.4th 172, 180 ["[T]he proper remedy when a trial court . . . has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand."], 182 ["To obtain relief, then, a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed."].) The trial court must order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If defendant is unable to show prejudice, the convictions are to be reinstated. (Gaines, at p. 181.) G. The Trial Court Imposed an Unauthorized Sentence as to Purnell
Purnell also contends the trial court's imposition of a firearm enhancement on count 6 for unlawful possession of a firearm was an unauthorized sentence. Purnell is mistaken. At sentencing, the trial court imposed an indeterminate term of 25 years to life on count 6, to be served concurrent with the sentence imposed on count 1. Contrary to Purnell's assertion, the abstract of judgment reflects imposition of an additional 10-year firearm enhancement only on the sentence for count 1, not count 6.
However, the trial court erred by adding a 10-year gang enhancement to the determinate term of enhancements imposed as to Purnell on count 1. The trial court properly sentenced Purnell to an indeterminate term of 35 years to life on count 1 for robbery under the three strikes law because Purnell had two qualifying prior felony convictions. (§ 667, subd. (e)(2)(A)(iii); People v. Dotson (1997) 16 Cal.4th 547, 552.) This sentence of 35 years to life under the three strikes law constitutes a life sentence within the meaning of section 186.22, subdivision (b)(5). (People v. Williams (2014) 227 Cal.App.4th 733, 744.) Thus, the trial court erred by imposing the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) instead of the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5). (Williams, at p. 745; see People v. Lopez (2005) 34 Cal.4th 1002, 1011 ["We find instead that the plain language of section 186.22(b)(5) governs and therefore conclude that the Court of Appeal erred in applying the 10-year gang enhancement to defendant's first degree murder conviction."]; People v. Salvador (2017) 11 Cal.App.5th 584, 587-588, 594 [trial court erred by imposing 10-year gang enhancement on each of the life terms imposed pursuant to § 667.61].) On remand, the trial court must strike the 10-year gang enhancement on count 1 and impose the 15-year minimum term for parole eligibility for that count. As to count 6 for a felon in possession of a firearm, the court must either strike the gang enhancement found true by the jury (§186.22, subd. (b)(1)(A)) or impose the 15-year minimum parole eligibility term (§ 186.22, subd. (b)(5)). H. The Record Does Not Support Remand for Resentencing Pursuant to Section 12022 .53, Subdivision (h)
In 2017 the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018. Senate Bill No. 620 amended section 12022.53, subdivision (h), to give trial courts discretion to strike firearm enhancements under this section in the interest of justice. (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Section 12022.53, subdivision (h), provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." The People concede section 12022.53, subdivision (h), as amended, applies retroactively to Purnell and White, whose sentences were not final at the time the provision came into effect. (See People v. Hurlic (2018) 25 Cal.App.5th 50, 56; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1080; People v. McDaniels (2018) 22 Cal.App.5th 420, 424.)
At the December 6, 2017 sentencing, the prosecutor informed the trial court of the new legislation that would allow the court to exercise its discretion to strike the firearm enhancement. The prosecutor stated, "As the court is aware, the Governor and the Legislature . . . have amended the gun use allegation to include discretion for a court to strike a mandatory gun use like the one here that was found true by the jury trial. This amendment, however, takes effect January 1 of 2018. [¶] Our office's position is because the Legislature included language in the amendment that it would be retroactive, that anybody sentenced under the mandatory gun use allegation would be able to have their case brought back to a trial court where the trial occurred to have the judge then evaluate whether or not the gun use allegation can be or would have been stricken. [¶] I am asking this court . . . to put on the record whether or not the court, if this were January 1, 2018, would strike the gun use allegation as to Mr. White?" The trial court responded, "I would not."
We assume the trial court's response applies equally to Purnell because the court took note of Purnell's extensive criminal history compared to White. Moreover, the court stayed the gang enhancement for White's sentence but denied Purnell's request to stay or strike the gang enhancement.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, . . . the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. Billingsley, supra, 22 Cal.App.5th at p. 1081.)
Purnell and White contend remand is appropriate to permit the trial court to exercise its discretion to strike the firearm enhancements imposed as part of their sentences. On the record here, remand for resentencing under section 12022.53, subdivision (h), is not supported because the trial court was aware it would have the sentencing authority the following month but clearly indicated it would not strike the firearm enhancement even if it had the discretion. (People v. Allison (2019) 39 Cal.App.5th 688, 706, 705 [remand "would be futile" where during 2017 resentencing the trial court and parties focused "on determining the maximum lawful aggregate sentence the court could impose" to come close to the 51-year sentence originally imposed]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [remand "would serve no purpose" given "the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement"].) I. We Remand for Resentencing as to Purnell Pursuant to Section 667 , Subdivision (a)(1)
In 2018 the Governor signed into law Senate Bill No. 1393 (2017-2018 Reg. Sess.), which went into effect on January 1, 2019. Senate Bill No. 1393 amended section 1385 by deleting subdivision (b), which prohibited trial courts from exercising discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667." (§ 1385, former subd. (b).) Senate Bill No. 1393 applies retroactively to Purnell because his sentence was not final at the time the new law became effective on January 1, 2019. (People v. Jones (2019) 32 Cal.App.5th 267, 272 [Sen. Bill No. 1393 applies retroactively]; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [same]; see In re Estrada (1965) 63 Cal.2d 740, 744 [Absent contrary legislative intent, "[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."].)
Purnell contends remand is appropriate for the trial court to exercise its discretion whether to strike the prior serious felony conviction enhancements imposed pursuant to section 667, subdivision (a)(1). At sentencing, the trial court stated, "Insofar as the two 667(a)(2) priors were found to be true, the court has no discretion as to whether or not to impose that additional ten-year period." We agree remand is required because the trial court indicated it had no discretion when imposing the two prior serious felony conviction enhancements. (People v. Gonzalez (2019) 39 Cal.App.5th 115, 123 ["remand is warranted to permit the trial court to exercise its discretion whether to strike the prior serious felony enhancement"]; People v. Kopp (2019) 38 Cal.App.5th 47, 93 [remanded for resentencing pursuant to Sen. Bill No. 1393]; People v. Garcia, supra, 28 Cal.App.5th at p. 974 [same].)
DISPOSITION
The judgments of conviction are conditionally reversed. On remand the trial court is to conduct an in camera review of Officer Garcia's personnel records for relevant records relating to dishonesty and excessive force, at which hearing the court shall administer an oath to the custodian of records and make a full inquiry as to what records the custodian has produced and where the custodian searched. The court shall order the LAPD to provide to Purnell's attorney documents relating to complaint Nos. 16-001064 and 16-002571, as well as any other materials the court at the in camera hearing determines are relevant. Following the disclosures, the court must allow Purnell and White an opportunity to demonstrate prejudice, and if the court finds there is a reasonable probability the outcome would have been different had the information been disclosed, the court is to order a new trial. For any defendant unable to show prejudice, the original judgment of conviction is to be reinstated, and as to White, the sentence is to be reinstated. In all other respects the convictions are affirmed.
If Purnell's judgment is reinstated, the sentence is reversed, and Purnell is to be resentenced. On count 1 for robbery the trial court must strike the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) and impose the 15-year minimum term for parole eligibility (§ 186.22, subd. (b)(5)). As to count 6 for a felon in possession, the court must either strike the gang enhancement or impose the 15-year minimum term for parole eligibility under section 186.22, subdivision (b)(5). In addition, we remand for the trial court to exercise its discretion whether to strike Purnell's prior serious felony conviction enhancements imposed pursuant to section 667, subdivision (a)(1).
FEUER, J. We concur:
SEGAL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.