Opinion
F073664
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ANGELO ALBERT REYES et al., Defendants and Appellants.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Angelo Albert Reyes. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Rene Molina Vargas. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christofferen, Brook A. Benningson and Christopher J. Rench, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13903715)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Angelo Albert Reyes. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Rene Molina Vargas. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christofferen, Brook A. Benningson and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
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Anthony Angelo Albert Reyes and Rene Molina Vargas (together appellants) were found guilty as charged of attempted murder (Pen. Code, §§ 187, 664) and assault with a firearm (§ 245, subd. (a)(2)). As to both Reyes and Vargas, the jury found true the crimes had been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to Reyes, the jury found true various firearm enhancement allegations that he personally used and discharged a firearm proximately causing great bodily injury (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d), 12022.7, subd. (a)). And as to Vargas, the jury found true various firearm allegations that a principal personally and intentionally discharged a firearm proximately causing great bodily injury (§§ 12022.53, subds. (b), (c), (d), (e)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
Reyes was sentenced to a total prison term of 19 years, plus 25 years to life: nine years for the attempted murder, plus a 10-year section 186.22, subdivision (b)(1) gang enhancement, and a 25-year-to-life section 12022.53, subdivision (d) enhancement. In addition, the court imposed but stayed, pursuant to section 654, a four-year section 12022.5, subdivision (a) firearm enhancement; a 10-year section 12022.53, subdivision (b) firearm use enhancement; a 20-year section 12022.53, subdivision (c) firearm discharge enhancement; and a three-year section 12022.7, subdivision (a) great bodily injury enhancement. As for the assault with a firearm conviction, the court imposed and stayed, pursuant to section 654, a four-year term, as well as a four-year section 12022.5, subdivision (a) firearm use enhancement; a three-year section 12022.7, subdivision (a) great bodily injury enhancement; and a five-year section 186.22, subdivision (b)(1) gang enhancement.
Vargas was sentenced to a total of nine years, plus 25 years to life: nine years for the attempted murder, plus 25 years to life for the section 12022.53, subdivision (d) firearm discharge enhancement. In addition, the court imposed but stayed, pursuant to section 654, a 10-year section 12022.53, subdivision (b) firearm use enhancement; a 20-year section 12022.53, subdivision (c) firearm discharge enhancement; and a 10-year section 186.22, subdivision (b)(1) gang enhancement. As for the assault with a firearm conviction, the court imposed but stayed, pursuant to section 654, a determinate four-year term and a five-year term for the section 186.22, subdivision (b)(1) enhancement.
On appeal Reyes and Vargas jointly argue error occurred under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), when the prosecutor's gang expert relayed testimonial hearsay concerning appellants' gang membership. Separately, Vargas maintains there was insufficient evidence to support his street gang enhancement and that the prosecution improperly impeached his expert with Vargas's admission that he was a gang dropout, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). In the alternative, he contends counsel was ineffective for failing to request a limiting instruction explaining that the statement was only admitted for impeachment purposes.
In supplemental briefing, Reyes and Vargas contend Senate Bill No. 620, which became effective January 1, 2018, entitles them to a resentencing hearing in which the trial court may consider exercising its discretion to strike the firearm enhancements imposed here. The People concede this issue.
We agree with appellants request for resentencing, but in all other respects affirm.
STATEMENT OF THE FACTS
The Shooting on March 31 , 2013
On March 31, 2013, Hector Polin, a self-admitted member of the Lewis Street Bulldogs, a subset of the Eastside Bulldogs gang, was at his mother's duplex on Grant Street in Fresno. Polin's two brothers, Ruben and Robert, were present and their children were inside. Polin was drinking beer and smoking crystal methamphetamine on the back patio with Leslie Ledger and another woman who were staying in the duplex's other unit. Ledger had a child with Vargas.
We refer to Polin's brothers by their first names for purposes of clarity and mean no disrespect. --------
Around midnight, Polin heard Vargas call "Lewie," in a distinctive tone, a phrase Lewis Street Bulldog gang members use to refer to each other and say "what's up" or "where you at." Polin looked over the gate to the front yard and saw Vargas and Reyes. Vargas and Reyes told Polin to come out, and he told them to "hold on." Vargas and Reyes "didn't look too happy" about Polin's response.
Polin retrieved his jacket from inside the house and went back outside. He initially did not see Vargas or Reyes, but then saw Reyes to his left, who asked him "why you trying to get at the homey's old lady." Polin took this to mean that Reyes was asking him why he was trying to have sex with Ledger, Vargas's girlfriend. Polin denied the accusation. Reyes then shot Polin five times, and Polin fell to the ground. Reyes and Vargas approached Polin. Reyes laughed and told Polin to "hurry up and die" and "mother fucker, just die already." Vargas smirked. Reyes and Vargas got into a van belonging to "Shorty," a fellow Lewis Street Bulldog, and fled the scene.
After hearing shots, Polin's brothers ran outside and heard a vehicle screeching down the block. They found Polin on the ground, choking on blood. Polin told them "Tricky" and "T-Nutty" shot him. The brothers drove Polin to the hospital, where it was discovered he had incurred numerous injuries to his arms and stomach. At the time of trial, Polin was still in pain from the shooting and was considered permanently disabled.
At the hospital, Polin told an investigator Reyes shot him and Vargas was present. Polin identified pictures of both. Polin told the investigator that "Coco-Loco," another Lewis Street Bulldog, was reorganizing the Lewis Street Bulldogs and cleaning house of older gang members, like himself. Polin told the investigator that the gang had talked about "taking [him] out" at a recent meeting.
At trial, Polin testified he had been a member of the Eastside Bulldogs since he was 13 years old and a member of the Lewis Street Bulldogs since 2004. Polin described the Lewis Street Bulldogs as identifying with the color red, St. Louis, and the letter "L." Ruben testified he had been a member of the Lewis Street Bulldogs since 2003. Polin and Rubin had known Reyes since they were children, about 20 years, and knew him as "Tricky," a member of the Lewis Street Bulldogs. Polin and Ruben were also familiar with Vargas, or "T-Nutty," also a member of the Lewis Street Bulldogs. Vargas had addressed both Polin and Ruben with "what's up 2400" before, "2400" standing for Lewis Street.
Polin testified that, when he first joined the Lewis Street Bulldogs, the gang had an informal structure, which had recently changed as Richard Redondo, or "Coco Loco," was attempting to instill more structure into the gang. Redondo was trying to persuade members to engage in additional violence and to funnel money to fellow members in prison. Polin had been approached by members of the gang and told "shit was going to happen" if he did not provide money to fellow gang members in prison. Polin believed younger gang members were trying to take out older gang members. While many members of the gang viewed Redondo "like the God," Polin felt differently and rejected Redondo's efforts, stopped attending meetings, and began distancing himself from the gang. Gang Expert Testimony
Detective Eric Cervantes testified as a street gang expert for the prosecution. He was a member of a multi-agency gang task force in which he focused on the Fresno Bulldogs. According to Cervantes, the Lewis Street Bulldogs are a close-knit subset of the Eastside Bulldogs, with at least 100 members. Thus, all Lewis Street Bulldogs were members of the Eastside Bulldogs, but not all Eastside Bulldogs were members of the Lewis Street Bulldogs. He had personally met at least 15 Lewis Street Bulldog members. The gang's primary activities included robberies, assaults with deadly weapons, illegal weapon possession, vehicle theft, narcotic sales, distributing firearms, and homicides.
In support of the section 186.22 gang allegation, Detective Cervantes testified regarding two predicate crimes committed by Lewis Street Bulldogs: a 2014 conviction for assault with a deadly weapon likely to cause great bodily injury, committed by gang member Daniel Telles; and a 2012 conviction for being a felon in possession of a firearm and for possession for sale of methamphetamine, committed by gang member Pete Servantes. Cervantes testified he was familiar with both Telles and Servantes, and personally worked on the case involving Telles.
Cervantes opined that Reyes was both a Lewis Street Bulldog and an Eastside Bulldog, based on the following: (1) photographs of Reyes, showing tattoos of dog paws, the letters "E", "S," and "SL" on his body; (2) documentation in which Reyes self-admitted to being a Lewis Street Bulldog in 2004, a Bulldog in 2007, and an Eastside Bulldog in 2012; (3) documentation in which Reyes was seen on six occasions between 2006 and 2012 associating with Lewis Street Bulldogs, a number of whom Cervantes personally had contact with; (4) documentation in which Reyes was observed in gang-related clothing in 2004 and 2010; and (5) numerous photographs of Reyes and known Lewis Street Bulldogs, some of whom Cervantes personally had contact with, displaying "L" signs.
Cervantes opined that Vargas was also both a Lewis Street Bulldog and an Eastside Bulldog, based on the following: (1) documentation that Vargas admitted to a police officer in 2009 that he was a Bulldog member and had been seen associating with Reyes and two known Eastside Bulldogs; (2) tattoos of a dog paw on his right and left elbows, a bulldog on his back, and Eastside on his left arm; (3) a photograph admitted at trial showing Vargas alongside Lewis Street Bulldog members; (4) Vargas's email address, which included "Lou" in it; (5) Polin's testimony describing how he heard Vargas say "Lewie" in the distinctive tone used by gang members; and (6) Ruben's testimony that Vargas had used the phrase "2400" to greet him.
In response to a hypothetical question based upon the evidence presented, Detective Cervantes testified that he would expect "[s]ome type of violence to occur" to a gang member accused of sleeping with another gang member's wife or girlfriend. Cervantes opined that, if a gang member states, "why you fucking with the homey's old lady" before firing five shots, the shooting would be to benefit the gang. The statement indicated someone was going to be killed for crossing the line of acceptable behavior among gang members. Cervantes also opined that a gang member shooting a fellow gang member, with a third gang member acting as the lookout, in the midst of a reorganization of the gang, would benefit the gang, as it encouraged the victimized member to support the reorganization. The shooting would also benefit the two gang members involved in the shooting by building trust between themselves and boosting their reputation for violence within the gang. Reyes's Defense
Reyes called Police Officer William McCarty who spoke with Polin at the hospital after the shooting. According to the officer, Polin stated he did not know who shot him. However, at the time Polin was groaning and yelling in pain and medical personnel were frantically attending to him before he was taken into surgery. Vargas's Defense
Vargas called former Police Officer Michael Fitzgerald as a defense gang expert. Fitzgerald opined Vargas was not a Lewis Street Bulldog, but that Reyes was. Fitzgerald based his opinion on the fact that Vargas did not have any Lewis Street Bulldog tattoos, he had not been seen displaying Lewis Street Bulldog signs in any photographs, and on the police reports and documentation Detective Cervantes relied upon, which did not show Vargas was previously arrested with any other Lewis Street Bulldogs.
On cross-examination, Fitzgerald admitted he had received an April 25, 2013, jail classification questionnaire in which Vargas stated he was not a gang member, but admitted he was a Lewis Street Bulldog dropout, which would mean he had, at some point, been a Lewis Street Bulldog. Fitzgerald also conceded that "Lou" is an important term gang members use to represent the Lewis Street Bulldogs, and he was not aware that Vargas had used an email address with the term "Lou" in it. Fitzgerald indicated his opinion about Vargas's gang status would "lean more likely to him being a member of Lewis Street" after learning that: (1) Vargas was seen in St. Louis Cardinal clothing; (2) Vargas used the phrase "Lou" in his email address; (3) two Lewis Street Bulldog members identified Vargas as belonging to the gang; and (4) Vargas's statement that he was a Lewis Street Bulldog dropout.
DISCUSSION
I. SANCHEZ ERROR
Appellants jointly contend the trial court violated their Sixth Amendment rights to confrontation by allowing Detective Cervantes to give expert opinions based on out-of-court hearsay from whom appellants did not have an opportunity to cross-examine. In light of Sanchez, we conclude a narrow portion of Detective Cervantes's testimony was barred by the confrontation clause and state law, but the erroneous admission of that testimony was harmless beyond a reasonable doubt. Section 186 .22, subdivision (b)(1)
Section 186.22, subdivision (b)(1), imposes an enhancement on "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members ...." "There are two prongs to the gang enhancement under section 186.22, subdivision (b)(1) .... The first prong requires proof that the underlying felony was 'gang related,' that is, the defendant committed the charged offense 'for the benefit of, at the direction of, or in association with any criminal street gang.' [Citations.] The second prong 'requires that a defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members."' [Citations.]" (People v. Franklin (2016) 248 Cal.App.4th 938, 948.)
Proof of the existence of a criminal street gang is a prerequisite. (See People v. Lara (2017) 9 Cal.App.5th 296, 337.) "'To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]' [Citation.] 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]' [Citation.]" (Id. at pp. 326-327; accord, § 186.22, subds. (e), (f).)
Committing a crime in concert with other known gang members is substantial evidence inferring that a defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. (People v. Miranda (2011) 192 Cal.App.4th 398, 412; accord People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Moreover, a "specific intent to benefit the gang is not required." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Instead, a specific intent to assist gang members in any criminal conduct is sufficient to satisfy section 186.22, subdivision (b). (Morales, supra, at p. 1198.) A jury can reasonably infer the requisite association from the very fact that the defendant committed the charged crimes with fellow gang members. (Ibid.)
Unlike section 186.22, subdivision (a), a substantive offense, section 186.22, subdivision (b)(1) does not require the prosecution to show that the defendant is an active or current member of the gang. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) However, while "gang membership is not an element of the gang enhancement [citation], evidence of defendant's membership ... [can] bolster[ ] the prosecution's theory that he acted with intent to benefit his gang, an element it was required to prove." (Sanchez, supra, 63 Cal.4th at pp. 698-699.)
To prove the elements of the gang participation offense and the gang enhancement, the prosecution may present expert testimony. (See, e.g., People v. Franklin, supra, 124 Cal.App.4th at p. 948; People v. Williams (2009) 170 Cal.App.4th 587, 609; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) Appellants' Challenge
Appellants concede the trial court properly admitted Detective Cervantes's testimony concerning appellants' gang-related tattoos, the photographs of appellants and other gang members, the history and background of the Fresno Bulldogs and their subsets, as well the required two predicate offenses. What they challenge is Detective Cervantes's testimony regarding Reyes and Vargas's gang memberships based on (1) appellants' self-admissions as gang members; (2) documentation of appellants' association with known Lewis Street or Eastside Bulldogs; (3) testimony that appellants were arrested with a known gang member (each other) in April of 2013; and (4) testimony that appellants were observed in gang-related clothing. Separately, Reyes contends error in allowing Detective Cervantes to testify to a Street Terrorism and Prevention (STEP) notice in which police identified Reyes as a Lewis Street Bulldog; and Vargas contends error in allowing Detective Cervantes to testify to Vargas's use of an email suggesting gang membership; Detective Cervantes's reliance on Polin's testimony that Vargas used a tone of voice specifically used by Lewis Street Bulldogs when calling "Lewie" to him; and Ruben's testimony that Vargas once used "2400" to greet him.
Appellants contend Detective Cervantes's opinion that the current offenses were committed to benefit the Lewis Street Bulldogs (that Polin was shot because he was sleeping with Vargas's girlfriend or because Polin was not happy about the recent reorganization within the gang) hinges on Reyes and Vargas being active Lewis Street Bulldogs. However, appellants argue, the testimony establishing appellants as Lewis Street Bulldog members was inadmissible testimonial hearsay under Sanchez. Accordingly, appellants contend that, because the confrontation clause violation prejudiced them with respect to the gang enhancement, the enhancement must be stricken.
Sanchez reversed jury findings on street gang enhancements because "the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford [v. Washington (2004) 541 U.S. 36 (Crawford)]. The error was not harmless beyond a reasonable doubt." (Sanchez, supra, 63 Cal.4th at pp. 670-671.) With respect to the hearsay rule, Sanchez "drew a distinction between 'an expert's testimony regarding his general knowledge in his field of expertise,' and 'case-specific facts about which the expert has no independent knowledge.' [Citation.] The former is not barred by the hearsay rule, even if it is 'technically hearsay,' while the latter is." (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 408.) Case-specific knowledge that is inadmissible testimonial hearsay includes "statements about a completed crime, made to an investigating officer by a nontestifying witness ... unless they are made in the context of an ongoing emergency ... or for some primary purpose other than preserving facts for use at trial." (Sanchez, supra, 63 Cal.4th at p. 694.) Police reports were therefore testimonial, but the court in Sanchez "was unable to determine whether information about the defendant recorded on an FI card was testimonial because the circumstances of its creation were not clarified by the parties at trial." (People v. Vega-Robles, supra, at p. 410.) Forfeiture
The People argue that the issue has been forfeited because appellants' counsels did not object to Detective Cervantes's testimony on the ground that it was based on case- specific, testimonial hearsay. We decline to find forfeiture because the trial took place before Sanchez, when such an objection "would likely have been futile." (People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7.) Detective Cervantes's Testimony
To determine whether admission of Detective Cervantes's testimony was prejudicial error we use the "two-step analysis" required by Sanchez. "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.) An improperly admitted hearsay statement ordinarily constitutes statutory error under the Evidence Code. (Id. at p. 685.) Where the hearsay is testimonial and is admitted in violation of Crawford, the error is one of federal constitutional magnitude. (Ibid.)
Appellants Self-Admissions
Detective Cervantes testified Reyes admitted to other law enforcement officers that he belonged to the Eastside Bulldogs when he was arrested in July of 2012; that he belonged to the Eastside Bulldogs in February of 2007; and that he belonged to the Lewis Street Bulldogs in September of 2004. Cervantes testified Vargas admitted he was an Eastside Bulldog in June of 2009.
Under Sanchez, those admissions were out-of-court statements admitted for the truth of the matters asserted, and thus hearsay. As Sanchez explained, "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' [citation] of the hearsay statement." (Sanchez, supra, 63 Cal.4th at pp. 682-683.)
Because the challenged testimony was hearsay under Sanchez, the critical question under the confrontation clause is whether the out-of-court statements were "testimonial," as required to implicate the clause under Crawford. (Sanchez, supra, 63 Cal.4th at pp. 685-686 ["only when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment"].) The Sanchez decision surveyed the substantial body of case law regarding the proper formulation of "testimonial" and summarized the concept as follows: "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) "Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Ibid.) Also, in order to be considered testimonial, "the statement must be made with some degree of formality or solemnity." (People v. Dungo (2012) 55 Cal.4th 608, 619; see also Sanchez, supra, at pp. 692-694.)
The record does not demonstrate whether Detective Cervantes relaying these admissions conveyed testimonial hearsay. Cervantes testified he was "aware" of these admissions and indicated he reviewed appellants' gang packets, which consisted of documented law enforcement contacts, and had had conversations with gang members and law enforcement. But as the People concede, the full circumstances of appellants' admissions, such as to whom these statements were made and in what context, is not known. While this may or may not have been testimonial, the record does not allow for a determination. (People v. Ochoa (2017) 7 Cal.App.5th 575, 584-585 (Ochoa).)
Documented Association with Lewis Street or Eastside Bulldogs
Detective Cervantes testified Reyes was documented associating with known Lewis Street or Eastside Bulldogs on six occasions between 2006 and 2012 and Vargas was documented associating with known Eastside Bulldogs in 2001 and 2010. When describing these occasions, Cervantes stated the date of the occurrence and the name and gang of the gang member appellants associated with, but gave no evidence about the circumstances of these occasions. Again, while this may or may not have been testimonial, the record does not allow for a determination. (Ochoa, supra, 7 Cal.App.5th at p. 586.)
Arrests with Known Gang Members
Detective Cervantes testified appellants were arrested with a known gang member, namely each other, in April of 2013. While the record does not disclose the source of this information, it may have been from records admissible under the official records exception to the hearsay rule. (Evid. Code, § 1280; People v. Martinez (2000) 22 Cal.4th 106, 120-138 [criminal record printouts admissible under official records exception].) The mere fact of appellants' arrests is not an out-of-court statement triggering their right to confront witnesses.
Observation of Appellants in Gang-Related Clothing
Detective Cervantes testified that Reyes was observed in gang-related clothing in May of 2010 and April of 2004; and that Vargas was observed in gang-related clothing in June of 2009. Again, the record is unclear about the circumstances of the observations—did Detective Cervantes personally witness them in gang-related clothing or was he relaying information others observed?
STEP Notice
Reyes separately contends, and the People concede, testimonial Sanchez error occurred when Detective Cervantes testified to a STEP Notice Reyes received July 4, 2012. "'STEP notices'" are notices issued by law enforcement "to individuals associating with known gang members" to "inform[ ] the recipient that he [or she] is associating with a known gang; that the gang engages in criminal activity; and that, if the recipient commits certain crimes with gang members, he [or she] may face increased penalties for his [or her] conduct." (Sanchez, supra, 63 Cal.4th at p. 672.)
Email Address
Vargas separately contends Detective Cervantes's testimony that Vargas used an email address which included a gang reference was testimonial. Again, the record is silent as to how Detective Cervantes learned of this email address.
Greetings when Calling and Addressing Others
Finally, Vargas objects to Detective Cervantes's reliance on Polin's and Ruben's testimony that Vargas used a tone of voice specifically reserved for fellow gang members to get Polin's attention when he called "Lewie," and when he greeted Ruben with "2400." However, it was Polin and Ruben who testified first to these statements made to them, which is not barred by either state hearsay rules or the federal confrontation clause. (Evid. Code, § 1220.) Analysis
The People concede some error occurred when Detective Cervantes, relying on testimonial hearsay at trial, opined that appellants were both members of the Lewis Street gang, in violation of Sanchez. We conclude, however, that even if considered testimonial hearsay, Detective Cervantes's above-referenced testimony concerning Reyes and Vargas's gang membership was harmless beyond a reasonable doubt.
Detective Cervantes's testimony that Reyes was a member of the Lewis Street Bulldogs was also based on his numerous gang tattoos, photographs of Reyes and known gang members in gang clothing and displaying gang signs. Vargas's expert also opined Reyes belonged to the Lewis Street Bulldogs. And victim Polin and his brother Ruben, both self-admitted long-time members of the Lewis Street Bulldogs, identified Reyes, whom they had known since childhood, as a member of the gang.
As for Vargas, he was shown in a photograph with a known Lewis Street Bulldog member, and he also had gang tattoos. And both Polin and Ruben were familiar with Vargas and testified that he belonged to the Lewis Street bulldogs. Ruben also testified he had seen Vargas wearing a St. Louis Cardinals hat and heard him use the term "Lewie," both indicative of Lewis Street Bulldog membership.
The jury had ample nontestimonial hearsay evidence on which to find appellants were gang members within the meaning of section 186.22, subdivision (b)(1). II. SUBSTANTIAL EVIDENCE SUPPORTS GANG ENHANCEMENT
In a somewhat related argument, Vargas contends the evidence was insufficient to support the gang enhancement for his attempted murder and assault convictions. He asks that we strike this enhancement. We decline. Standard of Review
"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. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) Applicable Law and Analysis
Vargas contends nothing shows he committed the attempted murder or assault with the specific intent to benefit a criminal street gang, rejecting both theories offered by the prosecution. He contends the first theory, that the crime was committed to retaliate for one fellow gang member sleeping with another gang member's girlfriend, was without evidence and was instead personal retaliation. He contends the second theory, an attempt to eliminate a fellow gang member who opposes restricting of the gang, while a valid theory, lacked the required proof. We find Vargas's arguments unpersuasive.
As noted above, "To establish a gang enhancement allegation, 'the prosecution must prove that the crime for which the defendant was convicted had been "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."' [Citation.]" (People v. Williams, supra, 170 Cal.App.4th at p. 625; see also People v. Margarejo (2008) 162 Cal.App.4th 102, 108-109.) There is rarely direct evidence that a crime was committed for the benefit of a gang. For this reason, "we routinely draw inferences about intent from the predictable results of action. We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say." (Margarejo, supra, at p. 110.) "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos, supra, 145 Cal.App.4th at p. 322; see also People v. Morales, supra, 112 Cal.App.4th at p. 1198 ["very fact that defendant committed the charged crimes in association with fellow gang members" supports the enhancement].)
Here, there was substantial evidence to support the jury's finding that Vargas committed the offense for the benefit of the Lewis Street Bulldogs. At trial, Detective Cervantes opined that both Vargas and Reyes were active Lewis Street Bulldog gang members when these offenses occurred. Detective Cervantes explained how he reached his conclusion which, as explained above, was based on appellants' "numerous" gang-related tattoos, their association with other known gang members, the language they used, and their association with each other.
In response to a hypothetical mirroring the facts of this case, Detective Cervantes opined that attempting to murder and assaulting a fellow member if he was sleeping with another member's girlfriend would benefit the gang as it enforced its rules prohibiting such conduct and would send a "clear message" to other gang members that this would happen if they also engaged in similar behavior. Polin confirmed that the Lewis Street Bulldog rules prohibited members from having affairs with other member's wives and girlfriends. Other aspects of the crimes supported the inference they were gang related—Vargas teamed up with fellow gang member Reyes, used the gang's greeting to draw Polin out of the backyard, and fled the scene in a van belonging to another Lewis Street Bulldog member.
Detective Cervantes also opined that two members shooting another gang member during a gang reorganization, if that member resisted the reorganization, would also benefit the gang. (See People v. Vang (2011) 52 Cal.4th 1038, 1048 [Expert opinion that particular criminal conduct benefited a gang is not only permissible but can be sufficient to support the § 186.22, subd. (b)(1) gang enhancement].) The record supports this inference as well. Polin testified how he resisted Redondo's efforts to add structure to the gang, how other members idolized Redondo, and how younger members were trying to take out older members.
The evidence sufficiently supports the jury's finding. A crime is committed "in association with a criminal street gang" if the defendant relied on his or her common gang membership in committing the offense. (People v. Albillar, supra, 51 Cal.4th at p. 60.) A specific intent to benefit the gang is not required, only a specific intent to assist other gang members in any criminal conduct. (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) The jury could have reasonably inferred the requisite association from the very fact Vargas committed the assault with a fellow gang member. (Ibid.) Although Vargas denied being an active Lewis Street Bulldog gang member when these crimes occurred, it was the jury's role to decide this disputed issue. Based on the jury's true finding, it is apparent that the jurors decided that issue against him. In doing our review, we will not reweigh the evidence or reassess the credibility of the witnesses. (People v. Albillar, supra, at p. 60.)
Although Vargas relied on the testimony of his gang expert, who opined, at least initially, that Vargas was not an active Lewis Street Bulldog, in assessing the sufficiency of evidence on appeal, the reviewing court does not weigh the credibility of dueling experts. "'Generally, "doubts about the credibility of [an] in-court witness should be left for the jury's resolution ...."' [Citation.] 'Except in ... rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury's resolution.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 996.)
Based on this record, a reasonable jury could have found true beyond a reasonable doubt that Vargas, a Lewis Street Bulldog, committed the underlying crimes in association with Reyes, also a Lewis Street Bulldog, and did so for the benefit of the gang. The evidence was reasonable, credible and of solid value. The circumstances reasonably justify the jury's true finding so reversal of that finding is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Albillar, supra, 51 Cal.4th at p. 60.) III. STATEMENTS OBTAINED IN VIOLATION OF MIRANDA
Vargas argues that the trial court violated Miranda when it allowed the prosecution to impeach his gang expert, Officer Fitzgerald, with Vargas's statement on a jail questionnaire that he was a Lewis Street Bulldog dropout. He argues in the alternative that trial counsel was ineffective for failing to request a limiting instruction. We find no prejudicial error. Procedural Background
Before trial, the parties addressed the statements appellants made in their jail classification questionnaires. Reyes's counsel filed a motion to exclude use of the confidential jail classification questionnaire, which the trial court granted. The trial court clarified that the defense gang expert would not be allowed to rely on the questionnaire either.
At trial, in cross-examining Officer Fitzgerald, Vargas's defense gang expert, the prosecutor questioned him about an April 25, 2013, classification questionnaire for Vargas, in which Vargas stated he was not a member of a street gang, but that he was a Lewis Street Bulldog dropout. Following the officer's testimony, out of the presence of the jury, the trial court stated that, while it had previously ruled use of such jail classification information would be in violation of Miranda, it had allowed it in this instance for impeachment purposes. The trial court asked the parties if they wished to place anything on the record regarding the issue. Vargas's counsel objected, stating it violated Miranda.
The prosecution later called Deputy William Nemoto to rebut the defense expert. Deputy Nemoto testified that he completed the jail questionnaire for Vargas on April 25, 2013, and that Vargas indicated he was a Lewis Street Bulldog dropout. Applicable Law and Analysis
In People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), our Supreme Court held that questions about gang affiliation posed to an arrestee while processing him or her into jail do not come within the historically recognized "booking exception" to the requirements of Miranda. While it is permissible for jail officials to ask questions about gang affiliation during the booking process, the answers to such questions are inadmissible in the prosecution's case-in-chief unless they were preceded by Miranda admonitions and a waiver of the right to remain silent. (Elizalde, supra, at p. 541.)
Here, the evidence in question was not presented during the prosecution's case-in-chief, nor did Vargas admit gang membership in the intake questionnaire—instead he stated he was not a Lewis Street gang member, but was a dropout, and this information was brought to light during cross-examination of the gang expert called by the defense. We will assume, without deciding, that the admission was erroneous.
The erroneous admission of a jail classification statement obtained in violation of Miranda is reviewed for prejudice under the Chapman standard. (Elizalde, supra, 61 Cal.4th at p. 542.) Under that test, the prosecution must prove beyond a reasonable doubt that the erroneous admission of jailhouse intake statements did not contribute to the guilty verdict. (Id. at p. 542.) "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" (People v. Neal (2003) 31 Cal.4th 63, 86.) This requires that we make a judgment about the significance of the statements to reasonable jurors, when measured against the other evidence considered by the jurors independently of those statements. (Yates v. Evatt (1991) 500 U.S. 391, 403-404 [determining whether an instruction providing for an unconstitutional presumption did not contribute to the verdict calls for "a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption"], disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
We conclude the erroneously admitted jailhouse intake statement was harmless beyond a reasonable doubt. There was ample evidence at trial that Vargas was a member of the Lewis Street Bulldogs—Polin and Rubin's testimony that Vargas was a fellow Lewis Street Bulldog, Detective Cervantes's expert opinion, and evidence that Vargas wore clothing reflecting Lewis Street colors, used Lewis Street Bulldog terminology, had been photographed with other Lewis Street Bulldogs, and had Bulldog-related tattoos. We conclude the prosecution has demonstrated the evidence of Vargas's Lewis Street Bulldog membership to be so compelling that we can be satisfied beyond a reasonable doubt that the erroneous admission of Vargas's jailhouse questionnaire response did not contribute to the jury's true finding on the section 186.22, subdivision (b)(1) enhancements. (Elizalde, supra, 61 Cal.4th at p. 542 [error harmless under Chapman where multiple uncontroverted witnesses testified to defendant's gang membership and detective testified to multiple manifestations of allegiance to gang by defendant].) We reject Vargas's contention to the contrary.
Because we find no prejudice, we need not address his alternate argument that counsel was ineffective for failing to request a limiting instruction. IV. SENATE BILL NO. 620
In supplemental briefing, appellants argue we should remand for resentencing to allow the trial court to exercise discretion to strike the firearm enhancements under the recent amendments to section 12022.53 (Sen. Bill No. 620 (2017-2018 Reg. Sess.). The People concede, and we agree.
As to Reyes, the jury found true various firearm enhancement allegations that he personally used and discharged a firearm. (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)). On the attempted murder, the trial court imposed a 25-year-to-life section 12022.53, subdivision (d) enhancement. In addition, the court imposed but stayed a 10-year section 12022.53, subdivision (b) enhancement and a 20-year section 12022.53, subdivision (c) enhancement. As for the assault with a firearm conviction, the court imposed and stayed a four-year section 12022.5, subdivision (a) enhancement.
As to Vargas, the jury found true various firearm allegations that a principal personally and intentionally discharged a firearm proximately causing great bodily injury (§§ 12022.53, subds. (b), (c), (d), (e)(1)). On the attempted murder, the trial court imposed 25 years to life for the section 12022.53, subdivision (d) enhancement. In addition, the court imposed, but stayed, a 10-year section 12022.53, subdivision (b) enhancement and a 20-year section 12022.53, subdivision (c) enhancement.
At the time of sentencing, the trial court had no power to strike the firearm enhancements under section 1385. (See former §§ 12022.53, subd. (h) & 12022.5, subd. (c).) However, in 2017, while appellants' appeal was pending, the Legislature approved and the Governor signed Senate Bill No. 620, which, as of January 1, 2018, gives trial courts the discretion to strike enhancements found true under sections 12022.53 and 12022.5, in the interest of justice. (§§ 12022.53, subd. (h), 12022.5, subd. (c); see People v. Watts (2018) 22 Cal.App.5th 102, 119; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080.)
Reyes only argues that his case should be remanded because of the changes to section 12022.53, but his jury also rendered true findings under section 12022.5, which, as we addressed above, was similarly amended. We therefore remand to allow the trial court the opportunity to exercise its informed discretion under the firearm enhancements imposed under section 12022.53, as to both appellants, and section 12022.5, as to Reyes.
DISPOSITION
The judgment of conviction is affirmed. The case is remanded for the trial court to exercise its discretion under section 12022.53, subdivision (h) and section 12022.5, subdivision (c). An amended abstract of judgment is to be sent to the Department of Corrections.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.