Opinion
F082822
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. JOEL ESTEBAN RODRIGUEZ, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Robert K. Gezi, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF171316C Charles R. Brehmer, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Robert K. Gezi, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
In 2018, defendant Joel Esteban Rodriguez and his three codefendants, all of whom are related, were arrested and charged with the stabbing death of Kasey Villegas.All four were charged by information with first degree murder (Pen. Code, §§ 187, subd. (a)/189, subd. (a); count 1), and assault by means of force likely to produce great bodily injury (GBI) (§ 245, subd. (a)(4); count 2). The information alleged both counts were committed "for the benefit of, at the direction of, or in association with" (full capitalization omitted) the Eastside Bakers (§ 186.22, subd. (b)(1)); and the assault count included an enhancement for personal infliction of GBI (§ 12022.7, subd. (a)). As to defendant, the information also alleged two prior serious or violent felony convictions within the meaning of the "Three Strikes" law, two prior serious felony conviction enhancements, and two prior prison term enhancements. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, former subd. (b).)
Defendant is the only party to this appeal.
All further statutory references are to the Penal Code unless otherwise stated.
Prior to the close of evidence, the trial court dismissed the gang enhancement allegations against all four codefendants for insufficient evidence. (§ 1118.1.) The jury subsequently rejected the charge of first degree murder, but convicted defendant of second degree murder and assault with a deadly weapon likely to cause GBI with a GBI enhancement. In a bifurcated proceeding, the trial court found that defendant had two prior serious or violent felony convictions. The trial court sentenced defendant on count 1 to 45 years to life for murder with an additional 10 years for two prior serious felony conviction enhancements; and on count 2 to 25 years to life for assault with an additional three years for the GBI enhancement and 10 years for the prior serious felony conviction enhancements, stayed under section 654.
Defendant testified he stabbed Villegas, and codefendant Jesse Carlos Reyes admitted to police he hit Villegas after he was on the ground. Following the close of evidence, the trial court directed a verdict for codefendants Efrain Ugues and Reyes on first degree murder in count 1, and for codefendant Heraclio "Mike" Ugues on count 1 in its entirety. The jury subsequently acquitted Efrain and Mike of the remaining charges against them, and acquitted Reyes on count 1 but convicted him on count 2 of assault with force likely to produce GBI.
On appeal, defendant advances three claims challenging the gang evidence admitted in this case. First, defendant claims that after dismissing the gang enhancement allegations for insufficient evidence, the trial court erred in failing to strike the testimony of the prosecution's gang expert. Second, he claims that the gang expert's opinion he was a member of the Arvina 13 criminal street gang is not supported by sufficient evidence. Third, he claims that the amendment of section 186.22 and the addition of section 1109 pursuant to Assembly Bill No. 333 apply retroactively and entitle him to reversal of his convictions. In addition to these challenges to the gang evidence, defendant claims that the trial court erred in instructing the jury with CALCRIM No. 361 (Failure to Explain or Deny Adverse Evidence) and, combined with the other errors, reversal of his convictions is required.
Assembly Bill No. 333 ((2021-2022 Reg. Sess.) (Assembly Bill 333).
In a combined response to defendant's first two claims, the People argue that he forfeited his challenge to admission of the gang evidence by failing to object, admission of the evidence did not render the trial fundamentally unfair, and any state law error was harmless under Watson. With respect to Assembly Bill 333, the People argue that the amendments to section 186.22 do not apply in this case because the gang enhancement allegations were dismissed, and section 1109 does not apply retroactively, but the failure to bifurcate the enhancements was harmless in any event. Finally, the People argue that defendant forfeited any challenge to CALCRIM No. 361 by failing to object, and, assuming it was error to give the instruction, there was no prejudice.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
As discussed herein, the gang evidence introduced in this case was not limited in relevancy to proving the gang enhancement allegations. (People v. Tran (2022) 13 Cal.5th 1169, 1208 (Tran) ["[G]ang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime."]; accord, People v. Pineda (2022) 13 Cal.5th 186, 233-234 (Pineda).) To the contrary, the series of events that culminated in Villegas's death involved gang-related behavior by Villegas; gang evidence was relevant to the prosecutor's theory of the motive and intent underlying the crimes; and the four codefendants successfully sought the admission of evidence that Villegas was the aggressor, which necessarily included gang evidence. Following dismissal of the gang enhancements, there was no objection to the gang expert's testimony and no request to strike any portion of her testimony.
For the reasons set forth below, we conclude that defendant's first two claims challenging the gang expert's testimony were not preserved for review. (Evid. Code, § 353.) With respect to Assembly Bill 333, defendant lacks entitlement to any relief based on the amendments to section 186.22 given the absence of any jury finding on the issue and, assuming that section 1109 applies retroactively and that a basis for a claim of error exists on this record, any error was harmless. Finally, assuming it was error to give CALCRIM No. 361, that error, too, was harmless.
Accordingly, we affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case A. Events at Concert
In February 2018, defendant attended a rap concert with a group that included his four cousins, Efrain and Mike, who are brothers, and Reyes and Angela, who are brother and sister. Efrain's and Mike's wives, Crystal and Claudia, and Angela's daughter and friend also attended. Efrain, Crystal, Mike, and Claudia came to the concert together and parked behind the nearby drycleaner where Crystal worked. They met the rest of their group at the theater. The group was seated in three different areas, with Efrain and Crystal in one area, Mike and Claudia in another area, and everyone else in a third area. Efrain, Crystal, Mike, and Claudia were drinking beer that night; and, relevant to witness testimony and the gang expert's opinion, Efrain was wearing a black shirt with "KC" on it, Mike was wearing a white shirt with long sleeves, Reyes was wearing a checkered or plaid shirt, and defendant's hair was in braids.
Nineteen-year-old Kasey Villegas also attended the concert that night with a family group, which included his sister, Vanessa; younger brother, Kristopher; aunt, Jennie; three cousins, Jesus, Julissa and Jeanna; and girlfriend, Maria, who was six months pregnant. Villegas, Vanessa, and Kristopher were drinking beer prior to the concert, and they rode together, with Maria driving.
1. Lobby Altercation
Concertgoers entering the theater passed through a security checkpoint, which included use of a metal detection wand. Inside the lobby, just after arriving, Villegas's group was involved in an altercation. Jennie testified that Villegas bumped someone, that person got mad, and the two started to fight. After a woman threw a beer bottle at one of Jennie's daughters, Jennie hit the woman. Jennie informed security and did not see that group of people again.
Vanessa, however, testified Villegas was not involved in that altercation. She, Villegas, and Kristopher were walking ahead of their group when Jennie, Jesus, and Jeanna became involved in some sort of altercation in the lobby. Maria also testified Villegas was not involved. She described it as a quick commotion that only involved Jennie.
2. Altercation in Theater Seating Area
Subsequently, inside the theater seating area, Villegas, Kristopher, and Jesus were acting rowdy, and Villegas started standing up and yelling "'Varrio.'" A few rows ahead, a man, identified at trial as Efrain, kept turning around and looking at Villegas's group. Jennie and Maria testified that Efrain yelled, "'Eastside,'" and made an "'E'" with his hands, and Vanessa testified he said something like "East Baker" or "Eastside Bakers." In addition, Maria testified that Efrain said something to the effect of, "[T]he Loma is on the East Side." Vanessa did not remember anyone making hand signs and Jennie initially denied Villegas was throwing gang hand signs with his hands. However, Jennie later conceded he was doing so in a video of the altercation, and Maria testified he was throwing a "'V'" for Varrio. Jennie, Vanessa, and Maria knew Villegas to be a Varrio Bakers gang member, although Maria testified that when he was released from custody six months earlier, he told her he was not active anymore.
During trial, the parties stipulated that Villegas was the individual who said "Varrio" inside the theater and that he was the individual who confronted defendant's group in the alleyway, who was on the street next to Claudia, and who was stabbed to death.
Jennie denied telling police, "my nephew, dumbass, he's standing yelling Varrio this and Varrio that, then another person two rows up turns and starts saying Eastside." However, she did tell Jesus to shut up and said it was "'stupid,'" after he stood up and engaged in the argument.
Prior to the altercation, Crystal heard someone from two or three rows behind them yelling "'Varrio,'" and then Efrain yelled back, "'Fuck all the gangs'" and "east side." Crystal knew Varrio was a gang, but she had known Efrain since childhood, he was not involved in gangs, and he did not have any gang tattoos. She also knew of the Eastside Bakers, and she was surprised and angry that Efrain responded east side to someone calling out Varrio because she knew he could be misunderstood to be claiming the east side as his turf or gang. She said, however, that east side can mean east Bakersfield, which is where Efrain grew up and what he would mean by east side.
Another concertgoer filmed some of the verbal altercation on her cell phone, which was played for the jury. She testified the commotion from Villegas's group was behind her, there were a lot of people yelling, and the altercation was gang related, with both sides making gang signs with their hands. In the video, one man, wearing a striped shirt with a collar and identified as Villegas, was manipulating his hands. The witness testified that the other man, wearing a checkered shirt and a Raiders hat, later identified as Reyes, said either "Eastside" or "Southside." The witness thought she told police he said "Eastside," but the police report reflected she said it was "Southside Bakers."
Angela also filmed some of the concert on her cell phone and the approximately seven-minute video was played for the jury. Angela testified that defendant had his hair in braids that night, and that she was unaware of any gang involvement by Efrain, Mike, Reyes, or defendant.
Crystal thought the yelling went on for about a minute, and then she and Efrain left their seats and moved toward Villegas's group. Crystal, Jennie, Vanessa, and Maria worked to deescalate things and separate the groups of men. Mike and Claudia calmed Efrain down, and Efrain and Crystal then switched seats with Angela to defuse the tension. Jennie said that Crystal signaled to her that they were moving seats.
Jessica was at the concert that night with her husband and saw the fight in the seating area. She testified that after the fight ended and the two groups involved were separated, she saw one of the men in a grayish, long-sleeved shirt and jeans lift up his shirt and turn in circles. He was approximately three feet away from her, he had a "'KC'" tattoo on his back and a Raiders tattoo, and she saw a knife with a wrapped handle at his side in the area of his belt. When he lowered his shirt again, the knife was no longer visible. She told police that the man was possibly Black with light skin, but she was not certain of his race and he could have been Hispanic. He had light skin, however, and he was the only one she saw that night who had braids.
3. Events in Lobby, Bathroom, and Front of Theater
Jennie testified that sometime after the argument ended, she went to use the restroom and when she was returning, she saw Efrain and three other men in the lobby. No one else from her group was with her and she approached the four men. She told them that Villegas was young and was not disrespecting them, and they all shook hands and agreed to let things be. Efrain had wanted to talk to Villegas and shake his hand, but Jennie told him no because there was no reason to and, at trial, she said Villegas had not done anything wrong. Jennie denied she told Efrain that Villegas was volatile, but she testified that Villegas had just been released from prison for an offense involving a knife and had been in and out of custody as a juvenile. She also denied she told the group that Villegas was a hothead. At trial, she described Efrain as "the main guy," and said he looked like a gangster while the other three looked more like "squares" or "pisas," meaning "more Mexican."
After enjoying the concert for a while, Efrain got up to use the restroom, which was upstairs in the theater. Crystal was following behind him when she saw the two men who were with Villegas start to follow Efrain. She had a bad feeling about it and went to tell Mike. She asked Mike to go with Efrain, just in case.
Thereafter, Crystal was in the lower lobby when she saw Efrain cross the upper lobby. She did not see Mike, but Efrain's shirt was ripped so she assumed there had been a fight. She caught up to him near the exit and a security guard told them they had to leave. Crystal said they were leaving, and she testified she then blanked out except for flashes of memory. Once outside, she remembered seeing a woman and one of the men who followed Efrain to the restroom shaking Efrain's hand. She did not recall seeing Villegas there, but it appeared to her that apologies were exchanged and the argument between the two groups was resolved. She and Efrain returned to their car behind the drycleaner at that point.
Maria testified that toward the end of the concert, after Kristopher and Jesus had gone to use the restroom, Villegas accompanied her to use it. When she came out, she could not find him. She then spotted him in the lower lobby and after they made eye contact, he went out the front door. She knew something was not right and as she exited the theater, Villegas, Kristopher, Jesus, Efrain and three other men were standing outside. Jesus had a black eye and Kristopher had a split lip from being jumped in the restroom.Kristopher told Villegas that they "had squashed it" with the other men, which upset Villegas. As Villegas yelled at Kristopher and said things like, "fuck these fools," Efrain and the three men were laughing. Villegas walked away to cool off and Maria followed him.
An approximately one-month break in the trial occurred during Maria's testimony. When she resumed testifying after the break, she purported not to remember some of the details she had testified to. She stated she did not remember if Jesus had a black eye or Kristopher had a split lip, she did not remember if she testified that they told Villegas they had been jumped in the restroom, and she did not recall who told her they were jumped. The parties later stipulated to having that portion of Maria's earlier testimony read to the jury.
4. Altercation in Alley
Crystal and Efrain were hanging out by their car with Mike, Reyes, and defendant, talking and waiting for Claudia. They had been there a few minutes when Villegas and a woman Crystal thought was his girlfriend came down the alley behind the theater, which ended at the parking lot where they parked their car. Villegas was yelling, "'Come on, fucking bitch,'" and the woman was trying to stop him. Crystal testified that Efrain and Mike did not carry weapons. However, they had trained as boxers when they were younger and knew how to fight. In response to Villegas, Efrain put his hands up and said, "'Come on then, come on then.'" According to Crystal, there was a lot of profanity exchanged, but Villegas did not say anything gang related in the alley, and no one else said anything or did anything.
As Villegas repeatedly said, "'Come on, fucking bitch,'" he moved backward, and Crystal told Mike that she thought Villegas might be trying to lure them somewhere and that they should leave. Efrain did not hear her because he was agitated, but once Mike spoke to him, he listened. No one threw any punches, and no one pulled out any weapons. Her group got in the car, and Crystal called Claudia, who was exiting the theater at that time.
Maria testified that after Villegas walked away outside the theater to cool off, he looked up an alley and spotted the group of men. Villegas entered the alley and half-way up, he and the four men started screaming things at each other. One of the men, who had braids, said, "'Arvin.'" Villegas took off his shirt and Maria said the four men circled them as they stood back-to-back in the middle. She testified the men talked about getting Villegas, hurting him, and killing him. No blows were exchanged, however, because she shielded Villegas and told the men not to touch him. She and Villegas were then able to walk away.
The jury saw surveillance camera footage from the parking lot behind the drycleaner. Crystal, Efrain, Mike, Reyes, and defendant were hanging out by their car when Villegas entered the frame from the alley with his shirt off and around his neck. He clapped in Efrain's face before backing up. One of Villegas's arms was bent in the area of his waistband and his hands were moving. A detective testified that Villegas appeared to be pulling up his pants. However, he agreed that furtive hand movements around the waistband area raise concerns that a weapon might be pulled. Efrain, Mike, and defendant walked toward Villegas. Maria was also visible in the footage, and then everyone walked out of camera range. A minute or two later, Efrain, Mike, Reyes, and defendant returned to their car.
5. Fatal Street Altercation a. Crystal's Testimony
Crystal testified that after Villegas left the alley, she drove the car out through the drycleaner's drive-through to the street. To her right, she saw both Claudia and Villegas walking away from the theater and toward the car. The two were not interacting and did not appear to recognize one another, but they were only a foot or so apart. Crystal felt like Villegas "kept coming back." She pointed Claudia and Villegas out to the others, drove the car across the street, and parked. Efrain, Mike, Reyes, and defendant got out of the car and ran toward the theater. Crystal testified she did not see what happened after they got out of the car, but she assumed there was a fight, and she told police it was turf or gang related.
b. Testimony of Maria, Jennie, and Vanessa
Maria testified that after leaving the alley, she and Villegas were near the theater when she saw the group's car. The car crossed the street and parked, and the men got out. The man in the black KC shirt-Efrain-and Villegas approached each other and started arguing in the street. Maria described all four men punching and kicking Villegas as he punched back.
Jennie and Vanessa were not aware of the altercation in the bathroom or the alley, but they knew members of their group had left the seating area, although their recollection of the specifics differed. Just prior to the stabbing, they learned that part of their group had been kicked out of the theater, so they gathered their things and left. After they exited the theater, they saw Villegas in the street with the four men. Jennie testified that Villegas was running toward the theater with the four men from the lobby chasing him, and Vanessa saw him surrounded by the four men.
Jennie said that Villegas was hit from behind by someone other than Efrain and the two fought until the other three men joined in. Villegas stumbled and fell, but he got back up and made it to the sidewalk, where he was hit and kicked by all four men. Maria then came up beside Jennie, told the men to stop, and started hitting the man in the white shirt, identified as Mike. Vanessa and Jennie saw Mike grab Maria by the hair, and they pulled him off of her. Although Vanessa and Jennie both said they saw Mike punch Maria, Maria testified that he only pulled her hair and she was never hit. Jennie described the scene as very chaotic and stated that one of the men also hit Vanessa before the group scattered. Both Vanessa and Maria said they saw Efrain standing over Villegas, who was on the ground. Efrain then left, and Maria recalled running to Villegas and calling his name. She picked up his head, which felt mushy, and saw a lot of blood.
c. Independent Witness Testimony
Two independent witnesses who saw the fight also testified. Daniel was working security at the theater and was stationed at the area where the equipment, stage crew, and performers pass through into the theater. He had a view of the street in front of the theater, and he heard some commotion and saw Villegas walking up the street from the theater. Daniel had seen Villegas inside the theater earlier and he had seemed like a loudmouth. Daniel heard profanity and "street talk" like, "oh, what's up now, bitch," and then he saw Villegas surrounded by at least three other people. Daniel recalled that Villegas threw the first punch, but they were all swinging and he described it as a melee. Within only 10-12 seconds, Villegas fell to the ground and when his face turned, he was staring and there was blood coming from his nostril.
Daniel did not see any weapons, but after Villegas was on the ground, he saw one of the men kick Villegas between one and three times and at least one of the kicks was in the face. He did not recall any women being present or seeing one of the men grab a woman by her hair, but he heard screaming and crying immediately after the fight and saw at least three women at that point.
The second witness, Matthew, was the theater director. He had been notified by security about a possible fight, and he and the owner of the security company went outside. They walked all around, including up to the drycleaner, but did not see anything. They split up and the security company owner went through the alley while Matthew walked to the street through the drycleaner's drive-through.
He then noticed a fight starting among approximately five people, all men, but it was chaotic so there could have been more people involved. Matthew recalled one group of two people and a second group of three people, and he said punches were being thrown. The fight only lasted a minute or so and ended with one young man, Villegas, being knocked to the ground by least three "weird" "sideways" punches, and then getting kicked in the head by another man three or four times. The second man with Villegas ran south down the street, leaving Villegas by himself on the ground. After the last kick was delivered, the group of three men ran up the street to a dark car and he heard the car take off.
Matthew did not recall the person with Villegas being a woman, but he did perceive the person was trying to break up the fight. He never saw a knife, and he did not select any of the defendants from the photo line-ups he saw a few days later, except for Reyes, whom he selected as the one who kicked Villegas in the head when he was on the ground. Matthew told the police the men were fighting like "wasps" because it was like they were taking turns, with one going in at a time.
B. Villegas's Death
Villegas was unresponsive and without a pulse when officers arrived on the scene. The forensic pathologist testified that Villegas suffered four separate stab wounds from the same bladed instrument, but he could not offer an opinion on the width of the blade because cut size is not a good indicator of blade size. The wounds on Villegas's right cheek and right chin were superficial, but the wounds to his left jawline and the back of his neck on the left side were approximately three inches deep. The stab to Villegas's neck penetrated his medulla, which affected his heartbeat and respiration, leading to rapid death. Villegas also had some superficial abrasions and lacerations on his hands and face, consistent with punching, and he had an area of bleeding two inches by two inches under his scalp and moderate bleeding in the left temporal muscle, both consistent with a punch or a kick.
Villegas had a blood-alcohol content of 0.123 percent at the time of his death, along with some THC suggesting presence of marijuana. He also had an enlarged heart, probably due to high blood pressure, and fatty liver disease, likely due to heavy alcohol abuse.
C. Defendant's Statement in the Car
After Efrain, Mike, Reyes, and defendant returned to the car, along with Claudia, the group left for defendant's house. Crystal testified that in the car, defendant said, "'I got him good.'" No one else said anything, and Crystal never saw Villegas, Efrain, Mike, Reyes, or defendant with a knife. The next day, Crystal found out about the stabbing, and she and Efrain were shocked. She told him it had better not have been him, and he told her he "'fought,'" but did not do it. She believed him because she had known him for years and he would not have stabbed someone in a fight.
D. Law Enforcement Testimony
Officers spoke to Kristopher and Jesus at the scene. Kristopher had a swollen lip and Jesus had a black eye, and both injuries appeared fresh. They were not cooperative and did not provide any information helpful to the investigation.
Jennie told police she and Villegas got into an altercation in the lobby when they arrived at the theater, but it was with a different group than the later altercations. She said she was upset at the behavior of Villegas, Kristopher, and Jesus that night because her daughter had paid for the tickets and the three were causing problems. She described Villegas as a "dumbass," yelling Varrio out while another person yelled "Eastside."
When Jennie saw Efrain in the lobby after the altercation in the seating area, he was calm and things were fine after they spoke. Efrain wanted Villegas to come out so they could "squash it," but she said no because Villegas was drunk and not thinking clearly. Her recorded interview with Officer Ronfeldt also reflected that she stated she told Efrain's group Villegas was a hothead. She told Ronfeldt that of the four people involved, the main person was wearing a black shirt with "'KC'" on it and "was obviously a gangster in her eyes," and she identified the gang as the Eastside Bakers.
Maria told police that she and Villegas became separated from Kristopher and Jesus after they left the theater, and she left Villegas behind in the alley to go look for them. She never made a statement describing being back-to-back with Villegas in the alley with the four men circling them. Police also never located the car Maria drove to the concert, and she told them she did not remember where she parked.
Maria selected Efrain's and Mike's photos from their six-pack photo line-ups, but she did not make any selection from Reyes's or defendant's photo line-up. Jennie selected Efrain from a photo line-up, but not the other three defendants.
E. Reyes's Statement
Detective Gavin testified regarding portions of Reyes's statement to police, following his arrest two days after the murder. Reyes said he had eight beers that night and was buzzed. He saw two or three people from the altercation in the seating area follow Efrain to the bathroom, and he then followed because he thought they might jump Efrain. Villegas was not in the bathroom, but one of the men who followed Efrain in was also saying "'Varrio.'" Either Efrain or Mike fought in the bathroom and won. In the alley afterward, Villegas kept saying "'Varrio,'" and Reyes thought he was acting aggressively toward them because of what had happened in the bathroom with the other men.
The parties stipulated to Villegas's identity in Reyes's statement.
Reyes denied seeing anyone get stabbed. However, after Villegas was on the ground, he hit Villegas a couple of times in the face. He stated that Villegas was face-up and still breathing, but he had blood coming out of his mouth. Reyes thought Villegas had been knocked out, and he did not know if he kicked Villegas. He said he "fucked up" and "shouldn't have gotten even that close to the dude when it was not his involvement."
Reyes told Detective Gavin he was a gang member from the Loma Bakers, and he had "'Bakers'" tattooed on his hand, although he denied the tattoo was gang related. He stated that saying "'Eastside'" in response to someone saying "'Varrio'" is a gang challenge. During cross-examination by Efrain's counsel, Gavin testified that Reyes stated he told Efrain not to say that because it was a gang challenge, which Efrain did not understand. Subsequently, during cross-examination by defendant's counsel, Gavin testified that Reyes said Efrain responded, "'I live on the east side and that's the east side.'" Reyes then told Gavin, "Yeah, you can't say east side back when they're fucking saying 'Varrio' because then it feels like it's a challenge. And you're challenging them and you're calling them and maybe he knows-he doesn't know really nothing about gang shit so he doesn't understand the concept."
Detective Gavin did not see any injuries on Reyes, and Reyes stated he was not injured.
F. Gang Evidence 1. Villegas's Involvement in Murder
Sergeant Coleman testified that in July 2017, a 17-year-old boy was shot to death after his late grandmother's house was tagged with Varrio gang graffiti and he confronted Jose M. over it. The boy wanted a fistfight with Jose, but Jose left and called his brother, Juan, who was a Varrio Bakers gang member recently released from prison after serving time for attempted murder. Surveillance video showed a vehicle driven by Giovanni J. with Juan and Villegas as passengers meet up with Jose. The four were also seen on surveillance footage searching for the boy, including at the boy's house. The boy was subsequently jumped by the group of four in front of Jose's house. Juan shot the boy three times and the four fled in the same vehicle seen earlier on video.
Sergeant Coleman testified that all four involved were Varrio Bakers gang members. Jose, Juan, and Giovanni were subsequently convicted of murder and gang charges. Villegas was not identified by name as the fourth participant until after his death.
Detective Jones testified that the Varrio Bakers is a criminal street gang, and that Villegas had, among other tattoos, "'Bakers'" on his right forearm, "'V'" on his right bicep, and "'B'" on his left bicep, which stood for Varrio Bakers.
2. Predicate Offenses
For the purpose of proving one of the elements of the gang enhancement allegation, Deputy Almanza testified to the arrest of Miguel G. in January 2018. Almanza responded to a church parking lot where a car hit a building. A rifle was found in the car and Miguel was the passenger. Law enforcement determined that the driver was the victim of a crime. Miguel was subsequently acquitted of attempted robbery and the substantive gang offense under section 186.22, subdivision (a), but convicted of false imprisonment by force and possession of a firearm with a gang enhancement under section 186.22, subdivision (b)(1). Miguel had multiple tattoos, including several "'ESB'" tattoos consistent with the Eastside Bakers gang and two 3-dots tattoos, consistent with southern Hispanic gang culture.
Officer Malley testified that in July 2017, he investigated a robbery where the two victims were shot. Angel S. was arrested in connection with the crime and entered a plea in the case.
Officer James testified that he conducted a social media investigation for the two robbery suspects, one of whom was Angel. James located Angel's Facebook account and testified about one photo with gang significance that showed Angel with an "'E'" and an "'S'" tattooed on his neck making an "'E'" with his hand. It was not the only photo with gang significance, however, and James testified that Angel was an Eastside Bakers gang member.
3. Gang Expert's Testimony
Officer Madsen was the prosecution's gang expert. She testified that the Eastside Bakers is a gang of more than three people, it identifies with the color blue, and its traditional gang rivals are the Nortenos, Varrio Bakers, and Westside Bakers. Madsen described the gang's traditional boundaries, demonstrated the gang's "'E'" hand sign, and testified that the gang's primary activities include robbery, burglary, weapon possession, assault with deadly weapons, drug sales, and murder. She also discussed respect within gang culture and the concept of "putting in work."
Madsen was present for the testimony of Deputy Almanza and Officers James and Malley, and she testified that Miguel G. and Angel S. were members of the Eastside Bakers at the time they committed their offenses. For Miguel, she based her opinion on location of the crime in traditional Eastside Bakers territory, his admission to being a member, and his gang-related tattoos. For Angel, she based her opinion on location of the crime in traditional Eastside Bakers territory, his social media activity, his gang-related tattoos, and the hand sign he made in the photo obtained from Facebook.
a. Efrain's Gang Involvement
Officer Madsen testified that on the night of Villegas's murder, Mike was not a gang member. However, it was her opinion that Efrain was an associate or a friend of the gang. She testified to four "street checks" involving Efrain between 2012 and 2016, all of which occurred in traditional Eastside Bakers territory. In one contact, Efrain was with Mike and Claudia, and in two contacts, he was with defendant. In addition, Efrain had two unspecified contacts with the sheriff's department. Madsen acknowledged that Efrain is related to Mike, Claudia, and defendant and that he lives in traditional Eastside Bakers territory. She also acknowledged that he did not have any tattoos and nothing of significance was found on his Facebook account.
The night of the concert, Efrain was wearing a shirt with "'KC'" on it made by Bow Down Clothing, which Madsen found significant because that brand makes custom clothing with geographical expressions common among gang members. "'KC'" stands for Kern County and is commonly found on clothing or in tattoos of gang members. A photo taken from one of the videos inside the seating area showed someone's hand appearing to make an "'E,'" and Madsen testified that it was Efrain's hand and his head and body were just outside of the frame. In addition, Efrain yelled "Eastside," which is what an Eastside Baker would respond to someone shouting "'Varrio,'" and it is a gang challenge. In Madsen's opinion, based on the events of that night, Efrain was an associate of the Eastside Bakers. However, her opinion would be different had it not been for the events that night.
On cross-examination by Efrain's counsel, Madsen acknowledged that Efrain was in his 30's and on the older end for gang involvement, and that he was never stopped in the company of gang members, other than a family member she believed was an active Arvina 13 gang member. She also acknowledged there was no evidence Efrain said "east side" after moving seats in the theater, and she was not aware of any evidence that he was involved in any gang activity in jail.
b. Reyes's Gang Involvement
It was Madsen's opinion that Reyes was an active Loma Bakers gang member, based on the events the night of Villegas's murder and the following information. Madsen relied on three street checks that occurred in 2011, 2013, and 2017 in traditional Loma Bakers gang territory. During one stop, Reyes was in the company of Christopher M., who had an "'L'" and a "'B'" tattooed on his chest and "Loma" tattooed on his upper back, which signifies respect for the gang. Reyes also had "'Bakers'" tattooed on his hand and in the theater that night, someone said, "don't forget Loma is on the East Side." In his statement to police, Reyes admitted knowing some Loma Bakers gang members by their monikers, and he admitted to being a Loma Bakers gang member.
c. Defendant's Gang Involvement
Finally, it was Madsen's opinion that defendant was an active member of Arvina 13. In forming her opinion, she relied on a report of a vehicle stop conducted in 2015 by Detective Montgomery. He was responding to a burglary call when he pulled defendant over and located a firearm and stolen property from the residence in the car.
In addition, in 2013, Officer Garcia conducted a traffic stop. Defendant was in the car with another individual who had a "'P'" and an "'S'" tattoo, which stands for "Poorside," a subset of the Arvin or Arvina 13 criminal street gang. Madsen testified that she took photographs of defendant's tattoos, which were shown to the jury. Not all of his tattoos had gang significance, but Madsen pointed out the "'AVN'" and "'PS'" on his abdomen, which stood for Arvin Poorside, and "'KC'" for Kern County. He also had "'Arvin'" on his arm, a Raiders tattoo under his left arm, an "'A'" on top of his shoulders and on his neck, and an "805." Madsen testified that Arvina 13 gang members will tattoo themselves with "'Arvin'" and "'A,'" and it is common to use sports symbols to represent their gangs. She explained that 805 is significant because 8 plus 5 equals 13, and the 13th letter of the alphabet is M, signifying Mexican Mafia. Also, 805 used to be the area code in Bakersfield, so it signifies homage to old timers.
d. Hypothetical
Madsen testified that yelling out a gang name creates a gang challenge and when there is a gang challenge, it is the duty of gang members to assist their members, associates, or friends. The prosecutor presented Madsen with hypothetical facts involving an Eastside Bakers associate who was at a public event with family members or friends who were members of other gangs and who argued with a Varrio Bakers member. The Varrio Bakers member called out his gang's name and the Eastside Bakers associate responded with "'east side.'" The argument restarted later and escalated into a physical fight during which the Varrio Bakers member was fatally stabbed. Madsen opined that the stabbing was for the benefit of and in association with the Eastside Bakers because the shouting of "'Varrio'" and "'east side'" created a gang challenge that would not be left unmet. She testified that whether then or later, the gang challenge would be answered with violence.
II. Defense Cases
A. Efrain
1. Character Witnesses
Efrain presented testimony from four character witnesses. One witness, who was a community college professor, had known Efrain since he was a boy and they were trained in boxing by the same person. He testified that Efrain never carried weapons, did not associate with gangs, and was not a troublemaker. He said the same about Mike, and testified that violence and weapons were not in Efrain's or Mike's character.
The mother of Efrain's two children also testified that he and Mike were not violent. She described Efrain as funny and calm, and a loving father who supported his children. The charges against Efrain and Mike were shocking to her and out of character for both men. She also thought it would be out of character for Efrain to run at someone who approached and threatened him, but she said that while Efrain was not aggressive, he would not cower or back down if threatened.
Tommy T., Efrain's and Mike's boxing trainer, testified. He said they were not involved in gangs and using a weapon would be extremely out of character for them. He had seen both Efrain and Mike drink, but stated they remained in control and were not "belligerent" or "pissy drunk[s]." Tommy had met defendant a couple of times, thought he was okay, and had no knowledge of his involvement with gangs. Tommy testified that Reyes was "a good boy," he had never seen Reyes violent, and Reyes was not a gang member.
Finally, Efrain's cousin and Reyes's sister, Angela, testified she had never known Efrain to carry a knife or have any involvement in gangs. However, most of their family lived on the east side of Bakersfield and they were proud to be from the east side. She had also never known Mike to carry a knife or a weapon, and she felt angered and saddened at the charges. She described both as family men whose families were important to them, and said Efrain would not risk being unable to be a father to his children.
Angela testified that she did not know Reyes to carry a knife or guns, and she was shocked Reyes said he was a gang member. She testified that if Reyes was a member, he was a follower and secretive about it because she had no idea.
2. Efrain's Testimony a. Defendant's Admission
Efrain testified at the outset that he did not stab Villegas, did not know Villegas was going to get stabbed, and would never have jeopardized his family by becoming involved if had he known what was going to happen. He stated that he was in disbelief when he was arrested, and after he had been in jail for approximately one week, defendant was transferred to the same cell. Defendant usually had long hair and Efrain noticed he had a buzz cut. Defendant also seemed to be in disbelief, and Efrain, who was older than defendant and had known defendant his entire life, felt sure that if defendant knew anything, he would tell Efrain.
After two more weeks passed, Efrain returned to their cell to find defendant crying. He asked defendant what was wrong, and defendant said, "'I fucked up, E. I fucked up,'" "'It's my fault,'" and something to the effect of, "'I just got out like five months [ago].'" Efrain testified that defendant did not say outright that he stabbed Villegas, but he said it was his fault. Efrain tried to comfort defendant while also feeling angry at him. Efrain told defendant he had to do the right thing by taking responsibility for the stabbing and defendant said he would. As time passed, however, defendant did not speak up and, after the preliminary hearing, Efrain "got a different vibe" from defendant and he testified defendant said, "'Aw, shit. I was hoping they were going to blame you.'" Efrain was angry, but still gave defendant the benefit of the doubt, telling him he could not "be that heartless" and "coward[ly]." Eventually, Efrain gave up and stopped talking to defendant, and he testified he viewed defendant as "a heartless coward."
E was Efrain's nickname.
b. Events at Concert
Efrain testified that the day of the concert, he and Crystal went shopping and she picked out the shirt with "KC" on it, which stood for Kern County. He said it was "just a shirt," and he was proud to be from Kern County. He pointed out the shirt also had an American flag on it, and he was proud to be an American, too. At the concert, he and Crystal were sitting separately from the rest of their group when he heard "ruckus" behind him and "slurs" like, "oh, fuck Varrio. What's up[?]" and "'[A]ll them motherfuckers don't want none. It's Varrio right here.'" He kept hearing it on and off for 15 minutes or so before he had enough. It got to him, and he became agitated. He kept looking behind him. The group was two rows back, but the rows were close together because it was an old theater.
Efrain finally stood up and said, "'You know what?'" "'Enough. We fucking get it already. Leave all that hood, that gang banging shit. Nobody gives a fuck. Nobody came to hear all that. Nobody came to hear all that, all that clique shit. Leave that at home.'" Someone responded, "'Oh, what's up? You have a problem or what? You have a problem?'" He said, "'Yeah, I have a problem. I'm trying to hear the fucking music but you won't let me. I didn't pay good money, hard-earned money to hear you guys with all this bullshit.'"
Efrain conceded it was not smart for him to say that, and he said he was "checked" right away when one of the group lunged toward him and hit him with a sucker punch. Efrain denied he said he was from the east side, but he told the group, "'We get it. You're from the fucking east side. Now leave that at home.'" Efrain said he regularly talks with his hands and was not throwing gang signs. After he was punched, Angela ran up and told him, "'No, no, what are you doing, E? Enough, no.'" Crystal also asked him what he was doing. He told them "'this little punk'" "'just threw a swing at me.'" They told him to let it go, and he saw a woman "beating ... down" the man he thought threw the punch at him, so he let it go, he and Crystal switched seats, and things calmed down.
Later, Efrain went to get a beer with Mike and they were hanging out in the lobby, where he had run into some childhood friends. He felt a tap on his shoulder and one of the women from the other group, Jennie, said, "'Look, I want to come to apologize about everything, you know. No disrespect.'" He apologized back, and she said she wanted to make sure there were no further altercations and things were "'squashed.'" He told her she could call her people and he would be more than happy to shake their hands. She responded, "'No, I can't make them do that. They're crazy. I don't know how they'll act but it's good.'"
Efrain went back inside the seating area, the headlining group began to play, and people were rushing the stage. At some later point, he left to use the restroom, which was upstairs. He was the only one inside at first. He then saw two men he did not recognize at first. The men exchanged a look, like a signal, and he asked them what was going on and if everything was cool. One responded, "'No motherfucker. What's up now?'" He realized that one of the men had taken the swing at him earlier, and at trial he identified the two as Kristopher and Jesus. Villegas was not with them.
Efrain took a defensive position just as defendant and Mike came through the door. Mike swung at one of the men two times. Efrain jabbed the other man in his face, and defendant then hit the same man. The man hit by Mike said, "'It's cool. We don't want no issues.'" Efrain then said, "'Come on, let's go,'" and they walked out.
As Efrain descended the stairs, he saw Villegas and when he passed by, he said to Villegas, "'Hey, man, what the fuck? I thought it was squashed.'" "'Why can't you control your people?'" Efrain then met Crystal at the bottom of the stairs and saw security. They did not get thrown out, but they left because he figured they were probably going to be told to leave. Mike and defendant followed behind them.
Outside, Kristopher and Jesus ran up and one of them said, "'Hey, man. I want to apologize. My bad. The shit is done. It's squashed, you know. I just want to keep it cool, like, all right[?]'" Efrain said that was what he wanted, too, and asked if everything was good. The man said yes, and Efrain gave him "a little bro hug," a type of handshake.
Efrain, Mike, and Crystal returned to their car, with Reyes and defendant following. They hung out and waited for Claudia, who was still in the theater. Efrain heard a noise and saw Villegas and Maria coming down the alley. Villegas had his shirt off and was grabbing at his pants, saying things like, "what's up now, motherfucker?" and "let's do this." Efrain testified they had done this twice already and then shaken hands twice, so enough was enough and if Villegas wanted to fight, they would fight. Efrain testified he did not go looking for trouble, but he was not afraid to fight, either.
He walked up to Villegas, who was lunging, grabbing behind his back at his waist, and saying, "'What's up? Come on.'" Efrain thought Villegas had to be crazy to approach four men when he had a woman with him, and Efrain kept him at bay but within arm's reach, in case he had something on him. Efrain never saw a weapon, though, and he maneuvered Villegas back down the alley. They did not end up having a physical altercation, and Efrain testified that Villegas and Maria were never standing back to back, encircled by the four men. Instead, as soon as he walked up to Villegas, Maria took off running. Crystal felt like something was not right and Efrain agreed it seemed that way. They returned to their car and as they exited the drycleaner in the car, Efrain looked to his right and saw Villegas and Maria. Villegas was speeding up to reach their car. Efrain testified that his heart dropped because Villegas was "on an attack," and he wondered if Villegas might have something on him given that his behavior made "no sense."
Crystal pulled across the street and parked, and Efrain heard the back doors open. He then got out, too. Villegas was running up and saying, "'What's up? What's up?'" Mike told Efrain to let him handle it. As he was watching people pass by, Efrain felt someone grab him and punch him. He turned and it was Villegas. They started swinging at each other and Villegas grabbed ahold of his shirt. Efrain dodged a punch and Villegas hit the light pole. Efrain then hit Villegas right in the nose. Villegas's head snapped back and his knees buckled, but he did not fall because he had Efrain's shirt. They started wrestling and fell to the ground. As Efrain started to get back up, he was over Villegas and hit him, "[L]eft, right. Ping, ping ...." Villegas was looking at Efrain and not doing anything, so Efrain figured Villegas had enough and stood up. At that point, defendant and Reyes came over, and Reyes gave Villegas a "hesitant" kick one time. Efrain did not see anyone stab Villegas during the fight and felt it could not have happened during his fight with Villegas. However, since he did not stab Villegas, the only possibility was someone else getting some blows in while he was fighting. At the end, he saw blood coming from Villegas's nose or mouth. He did not see any blood pooling under Villegas's head.
Efrain crossed the street and returned to the car. Everyone else was already inside except for him and Reyes. They got in and drove off. He felt angry and he was upset his new shirt was ripped. He recalled the radio was on, but did not hear anyone say, "'I got him good.'" The group decided to go to defendant's house for an "after party," and defendant was really quiet at his house. However, Efrain did not find it unusual because defendant had some things going on with his children's mother at the time.
The next morning, Crystal told Efrain there had been a fatal stabbing at the theater and his first thought was if Villegas's group was involved. Within 20 minutes, police arrived at his house and commanded him to come outside with his hands up. He cooperated and a week later, saw defendant in the jail.
On cross-examination by the prosecutor, Efrain testified that defendant grew up in Arvin, but was not a gang member as far as he knew.
B. Efrain and Mike
Claudia testified for both Efrain and Mike. She and Mike had been married for 14 years and had four children. At the time of the murder, he was employed and supported their family, and she had never known him to carry weapons. She also testified that Efrain did not carry a knife or a weapon and was not involved in gang activity.
She and Mike went to the concert that night because Efrain wanted them to, so they bought tickets at the theater and sat together, apart from the rest of their group. Inside, Claudia saw Efrain exchanging words with someone and it seemed tense. She told Mike and they went over to see what was going on. Mike just stood there, close by. She did not hear Mike call out a gang's name and testified that he did not participate or associate with gangs. There was no fistfight, Efrain and Crystal switched seats with Angela and her friend, and she and Mike returned to their seats.
Later on, Mike asked Claudia if she wanted a beer, which she declined, and he left to get one for himself. Mike never returned and because he did not have a cell phone, Claudia went to look for him. She did not find him and returned to her seat.
Approximately 20 minutes later, she went to look for him again. Crystal then called her and Claudia found out the group was at the car.
Claudia exited the theater and saw the car at the drycleaner's drive-through. The car then pulled across the street and parked, and she walked toward it. She saw Villegas walking in front of her toward the car with someone she thought was his girlfriend, who was crying and trying to get Villegas to stop. Claudia told Villegas "to stop," "it's not worth it," and "nobody has to go to jail."
Mike got out of the car and took a fighting stance. Claudia saw him punch Villegas once in the face and Villegas swing back. She said Mike saw defendant and told him not to get involved. Villegas's girlfriend then jumped on Mike's back, but he got her off and she ended up on the ground. Two women then approached from the direction of the theater. Claudia did not remember what the women said, but they seemed angry, and she and Mike backed up toward the sidewalk.
Claudia was focused on Mike and did not see what Efrain, Reyes, and defendant were doing. Mike was the only one she saw fight Villegas, but when she looked down the street, she saw Villegas lying on the ground. He appeared to be knocked out. She did not see any blood and saw no indication he had been stabbed. The group got back in the car and went to defendant's house. Claudia testified no one talked in the car and she did not hear anyone say, "'I got him good.'" She did not know anyone was stabbed until the next morning, and she did not see a knife.
C. Defendant 1. Gang Expert's Testimony
Martin Flores testified for defendant as a gang expert. Flores explained that he is primarily a consultant on gang cases, and he discussed Sureno gangs, which included the Loma Bakers, Eastside Bakers and Varrio Bakers, and he discussed the Mexican Mafia. Flores explained that geographical tattoos, such as area codes "805" or "661," "'Kern County,'" or "'KC'" are not gang-specific tattoos, although gang members may have them. He also disagreed that "805" is a Sureno identifier, even though 8 plus 5 equal 13.
Flores testified that labeling individuals as gang associates is problematic because broad generalizations lead to incorrect labeling. He explained that if you live around gang members, it is easy to be labeled as one. One criterion is dress, which is subjective. Another is simply being stopped with a gang member. As a result, someone can end up being labeled a gang associate because they were stopped by police while in the company of a boyfriend or girlfriend, relative, coach, or teammate who happened to be a gang member. Once that occurs, the gang label follows the person and attaches to each subsequent contact.
In Flores's opinion, "east side" is too generic to indicate the person saying it is a gang associate. While it can refer to a gang, such as the Eastside Bakers, it is also a geographical term, so its use is open to interpretation. Wearing a shirt that says "'KC'" for Kern County is also too general and can lead to "irresponsible labeling ....."
Flores concluded that at some point in time, defendant was a member of an Arvin street gang, and he stated that "Poorside" is a clique of Arvin. However, not every crime committed by a gang member, or two gang members together, is a gang crime and, most often, if the crime is spontaneous, it is not a gang crime. In contrast, the situation is different if the crime is planned and involves targeting rival gang members in rival territory.
Defendant's counsel asked Flores to assume two groups of family members that included women got into an argument in a theater, in an alley, and then in the street, where a fight occurred. Counsel asked if it was possible to determine whether the situation was gang related or a personal issue. In Flores's opinion, those hypothetical facts were not consistent with a gang and the situation was most likely a personal dispute. If one member of one group was a gang member and two members of the other group were alleged gang members, the situation still had "less gang value" because it was "a sprinkle" of gang members in the group rather than a group of gang members together.
On cross-examination by Efrain's counsel, Flores testified it was very unlikely that a 30-year-old out with his wife with little to no documented gang involvement would decide that was the day to make his mark as a gang member. Flores also testified that yelling "fuck all the cliques" is a statement indicating, "I don't care about your . . . gang agenda." Presented with a hypothetical mirroring Efrain's life situation and actions the night of the crime, Flores opined that the confrontation was personal in nature and a display of machismo rather than a gang situation.
On cross-examination by the prosecutor, Flores agreed that the Eastside Bakers and the Varrio Bakers are criminal street gangs. However, Flores strongly disagreed that gang members are more likely to resolve disputes with violence, and he stated that the public is presented with the worst examples, which are then cast as everyday examples, leading to the misconception that all gang members always resort to violence in response to disrespect. Instead, situations are individual, and some gang members tolerate a lot while others have zero tolerance.
The prosecutor asked Flores a series of hypothetical questions, each with the addition of another fact. Flores responded that if an individual with an "Arvin Poorside" tattoo yells "'Arvin,'" it indicates the person is or was a member of that gang and although it leans in the direction of gang representation, there is an insufficient basis to make that determination. Adding a knife to the hypothetical also leans that direction, but there is a distinction between being armed for the specific purpose of committing an act and happening to be armed when something occurs. If the individual who yelled "'Arvin'" is in an alley with someone who yelled "'Varrio,'" it could be gang related or it could be interpreted to mean, "I'm from Arvin" and "have no beef with you." If the individual who is armed with a knife and yelled Arvin stabbed the person who yelled Varrio to death, the situation is still open to interpretation, as the person did not yell "Arvina" or "Arvina 13." Flores agreed "Arvin" can be interpreted as a gang call-out, but said a specific gang is not being called out. He stated that none of the factors is definitive and although the situation leans in the direction of being gang related, more factors are needed to say a gang agenda is being pushed.
Flores disagreed that responding "east side" to someone yelling "Varrio" is necessarily gang related. He reiterated that east side is geographical and does not necessarily mean Eastside Bakers.
2. Defendant's Testimony
Defendant, who was 29 years old at the time of trial, testified that he grew up in Arvin before moving to Bakersfield as a young teen. It was a small town, so he associated with Arvin Poorside gang members and got an Arvin Poorside tattoo approximately 11 years earlier, when he was around 19 years old. He said on cross-examination by the prosecutor that he would not call Arvin Poorside a gang clique and he differentiated it from Arvina 13, but he then conceded it could be called a subset. He admitted he had two felony convictions for assault with a firearm and residential burglary, which were the subject of Officer Madsen's testimony, but said he had left gang association behind, was a barber by trade, and had two sons.
On the day of the concert, defendant started drinking around 4:00 p.m. and had approximately seven beers and one mixed drink. He and Angela took Lyft to the theater and were screened by security before entering. Security patted him down and used a detection wand. Defendant denied that he or anyone else with him had a knife and he said he had an old, torn up cell phone case at his waist.
Inside the theater, defendant had approximately five more beers. He was in front of the stage when the argument between Efrain and Villegas broke out and he did not see it. Later on, Crystal tapped him on the shoulder and told him that a couple of men had followed Efrain to the bathroom. He and Mike entered the bathroom at the same time and saw two men about to jump Efrain. They jumped in, defendant punched one of the men one time, and the incident was over quickly.
Defendant was planning to return to his seat, but Efrain and Mike went outside, so he followed them. In the lobby on the way out, defendant saw Villegas "mean-mugging" them, giving them hard stares, and throwing up his hands. Defendant went outside and Villegas, Kristopher, Jesus, Maria, and Jennie followed. Kristopher said it was "already squashed" and not to mind his brother, who was "a hothead." Defendant said they did not want any problems and it was over. He told them that he was "not even from here" and was "from Arvin." They shook hands and his group started walking to their car.
At the car, they were hanging out when Villegas approached quickly with his shirt over his head. Villegas kept reaching behind his back like he had something back there and defendant thought he was trying to lure them down the alley because he kept running backward as they chased him. When Villegas was at the end of the alley, defendant saw an older white Mercedes parked there with two men and a woman present. He told his group the situation did not feel right, and they were being lured down there so they returned to their car. Defendant testified he never said Arvin in the alley; he only said it in the front of the theater and it was not in response to anyone saying Varrio.
Surveillance footage showed a white Mercedes on the street near the drycleaner, and a detective testified there was a bloody print on the hood that was processed for latent evidence. However, he was unaware if the car was ever linked to Villegas's group. Another detective testified that the car Maria drove to the concert was never located and she did not provide police with any information about the car, with the possible exception of color, which he did not recall. Defendant testified that he saw the same car a second time, after it had been moved in front of the theater.
Someone called Claudia and, as they were leaving, they saw Villegas crossing the street coming toward them. Defendant also saw Claudia and he, Efrain, Mike, and Reyes got out of the car. Mike told them to stay back and not get involved. Mike threw one punch at Villegas and then Maria jumped on Mike's back. Mike got her off, and Mike and Claudia stepped onto the sidewalk. Defendant was still staying back watching and Villegas started fighting with Efrain.
One of Villegas's swings connected with the light pole. He then backed up and shook his hand. For a split second, Efrain looked away, and Villegas reached behind his back and took out a knife. Efrain did not see this happen, so defendant grabbed Villegas's arm with both hands and tried to take the knife. Villegas would not let go and defendant kneed him in the groin. Villegas then dropped the knife and punched defendant in the face as defendant reached for the knife, chipping defendant's tooth. Defendant's hoodie ended up over his head and he could not see anything, but he had the knife in his hand and he started "swinging for [his] life." Once defendant could see again, Efrain was on top of Villegas, throwing him to the ground. Defendant heard sirens, dropped the knife by the curb, and ran to the car.
Defendant testified that he did not intend to stab Villegas, but Villegas kept coming after them and he was protecting his family and himself. He did not feel like he was hitting anything when he was swinging and he did not know what happened to the knife. He left it behind and ran to the car in panic when he heard sirens. Everyone else got back in the car and they left. He denied he said, "'I got him good.'"
Defendant cut his hair three days later, but explained that he and his youngest son had long hair at the time and his son's mother wanted them to cut their hair. Since he is a barber, he took care of it.
After his arrest four days later, defendant saw Efrain in jail. He denied saying, "'I fucked up,'" but he told Efrain "it was a mistake" and conveyed he was going to come forward. On cross-examination, he said he was always planning to come forward and denied he said that he needed to see how the evidence came out, that the authorities were looking to place all the blame on Efrain, or that he changed his mind about coming forward because of the evidence at the preliminary hearing. He testified that they were not gang members, and they were a good family. They took care of their kids and hung out on weekends, barbecuing and playing football.
On cross-examination by the prosecutor, defendant stated he did not recall telling police he was not at the concert. He thought he told them he was there, but had left. Shown a transcript of his interrogation, he conceded that after his arrest he told police he was not at the concert that night and was at home from 7:00 p.m. to 2:00 a.m. He testified he lied because he was scared.
DISCUSSION
I. Claims Relating to Admission of Gang Evidence A. STEP Act and Assembly Bill 333
Defendant's first three claims relate to the admission of gang evidence in general, and his third claim seeks relief based specifically on changes to the law following the enactment of Assembly Bill 333. (§§ 186.22, 1109.) Therefore, we begin with a summarization of the STEP Act (§ 186.20 et seq.) and Assembly Bill 333.
"In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.)" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) "'Underlying the STEP Act was the Legislature's recognition that "California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (Pen. Code, § 186.21.) The act's express purpose was "to seek the eradication of criminal activity by street gangs." [Citation.]' [Citation.] In pursuit of this goal, the STEP Act focuses upon 'patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.' (§ 186.21.)" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129, fn. omitted.)
In addressing the problem, the STEP Act created both a substantive offense for active participation in a criminal street gang and, relevant in this case, a sentence enhancement for committing gang related crimes. (People v. Rodriguez, supra, 55 Cal.4th at p. 1130 &fn. 5.) Both pre- and post-Assembly Bill 333, a gang enhancement allegation requires proof that the defendant committed the underlying felony "for the benefit of, at the direction of, or in association with a criminal street gang ._" (§ 186.22, subd. (b)(1).) Proving the existence of a "'criminal street gang'" requires proof of a "'pattern of criminal activity,'" which is satisfied, in part, by evidence of at least two qualifying predicate offenses. (Id., subds. (e)(1), (f); see People v. Valencia (2021) 11 Cal.5th 818, 829 (Valencia) ["The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses."].)
"In 2021, the Legislature passed Assembly Bill No. 333 ..., which became effective on January 1, 2022 (see Stats. 2021, ch. 699). Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an 'ongoing, organized association or group of three or more persons.' (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members 'individually or collectively engage in' a pattern of criminal activity in order to constitute a 'criminal street gang,' Assembly Bill 333 requires that any such pattern have been 'collectively engage[d] in' by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a 'pattern of criminal activity' by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang 'members,' as opposed to just 'persons'; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (Tran, supra, 13 Cal.5th at p. 1206.) "These changes have the effect of 'increas[ing] the threshold for conviction of the section 186.22 offense and the imposition of the enhancement,' ...." (Id. at p. 1207.)
In addition, "Assembly Bill 333 added section 1109, which requires, if requested by the defendant, a gang enhancement charge to be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. If the proceedings are bifurcated, the truth of the gang enhancement may be determined only after a trier of fact finds the defendant guilty of the underlying offense." (Tran, supra, 13 Cal.5th at p. 1206.)
B. Claim One: Failure to Strike Gang Expert's Testimony 1. Background
The evidence showed that Villegas was a member of the Varrio Bakers gang, he called out his gang's name and flashed gang signs in the seating area of the theater, and he also called out Varrio during the confrontation in the alley. Based on evidence that Efrain responded to Villegas by yelling "east side," that Reyes was a Loma Bakers gang member, and that defendant was a member of the Arvin Poorside clique, the four codefendants were charged with committing murder and assault "for the benefit of, at the direction of, or in association with" the Eastside Bakers. (§186.22, subd. (b)(1).)
During motions in limine, the four codefendants sought the admission of evidence that Villegas was the aggressor pursuant to Evidence Code section 1103, subdivision (a), which provides, "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is ... [¶] [o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character" (id., subd. (a)(1)). After hearing argument, the trial court concluded the evidence was admissible under Evidence Code section 1103 and it declined to exclude the evidence under section 352 of the Evidence Code.
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The trial court then considered the codefendants' motion to bifurcate the gang enhancements. The court indicated its tentative ruling was to grant the motion, but after hearing argument and giving the matter further consideration, the court denied the motion. The court concluded that the admission of evidence under Evidence Code section 1103 would include Villegas's gang involvement, including in a gang-related murder, and that the gang evidence was "inextricably linked" to the prosecution's theory of the case. The court expressly noted that it also considered the issue under Evidence Code section 352. This appeal does not involve a challenge to any of those rulings.
After all of the prosecution's witnesses had testified except for the forensic pathologist and Angela, all four codefendants moved to dismiss all charges and enhancement allegations under section 1118.1 for lack of sufficient evidence. The trial court granted the motions as to the gang enhancement allegations, but otherwise denied relief. Relevant to defendant's first claim, the prosecutor sought clarification of the impact of the ruling, as follows:
Efrain called Angela as a witness, and the trial court granted the prosecutor's request to conduct a direct examination.
"[PROSECUTOR]: Your Honor, before we bring the jury in, I have one question regarding the Court's ruling. Are the People-for that matter, are all parties still permitted to reference those elements that the People were relying on for the-regarding the gang controversy?
"THE COURT: You can still talk about it. There just won't be the gang charge, the gang enhancement, for a jury to make a finding on.
"[PROSECUTOR]: The same goes with the officer's opinion; is that correct?
"THE COURT: I haven't stricken any testimony. Other than the part I did strike, but no, I'm not striking the officer's testimony and saying you can't talk about it because part of the theory of the People, as I understand it-and you don't have to answer this because I'm not-you don't need to tell me. [¶] But it's what you've sort of referenced and that is that this is more than just two brothers and two cousins. And you can make that argument in closing argument. You're not prevented from making that argument. There won't be gang enhancement under [section] 186.22(B)(1) for the jury to make a finding on, but the aiding and abetting fits with-the argument fits with the gang context as you've presented it to the jury. [¶] And I think it would be unfair to not allow you to reference that, but the charge, the enhancement [section] 186.22(B)(1), will not be considered by the jury. I've dismissed it."
There were no objections to the ruling, and no requests to strike any portion of the gang expert's testimony.
The trial court instructed the jury on the limited purpose of the gang evidence. (People v. Hernandez, supra, 33 Cal.4th at pp. 1051-1052.)
On appeal, defendant claims that the trial court erred in failing to strike the gang expert's testimony, and that the error was prejudicial under Chapman because it rendered his trial fundamentally unfair. The People maintain that defendant's failure to object to the evidence or request it be stricken forfeits review of the claim. Alternatively, they argue that any error was harmless under Watson. In response to the issue of forfeiture, defendant contends that the four codefendants' motions to dismiss the gang enhancements for insufficient evidence, and their arguments in conjunction with those motions, were sufficient to preserve the claim of error for review. For the reasons that follow, we disagree with defendant and conclude the claim is forfeited. (Evid. Code, § 353.)
2. Analysis
Defendant acknowledges that he did not object when the trial court clarified it was not striking the gang testimony, but he argues that his "defense counsel made substantial objection on insufficiency grounds prior to the court's ruling on the gang enhancement allegation under ... section 186.22, subdivision (b)(1). The court's ruling constituted denial of the grounds raised by defense counsel." (Fn omitted.) Further, he asserts that "[he] argued in the trial court that the evidence was insufficient to support the sections 187, 189 and 186.22 charges. The court denied his claims, finding that the evidence was admissible. On this basis, [defendant] claims a due process violation, i.e., that his trial was fundamentally unfair, in that it resulted in a conviction based on insufficient evidence of his guilt." (Citing People v. Partida (2005) 37 Cal.4th 428, 434435, italics added.) This argument appears to conflate two separate legal issues.
a. Substantial Evidence
First, with respect to the sufficiency of the evidence, "[t]he Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). The four codefendants moved to dismiss all charges against them, and the court agreed there was insufficient evidence to support a finding by the jury that the four committed murder and assault "for the benefit of, at the direction of, or in association with" the Eastside Bakers. (§ 186.22, subd. (b)(1).) As a result, defendant did not suffer a true finding on the gang enhancement and, on appeal, he does not advance the claim that his second degree murder and assault convictions are unsupported by substantial evidence. Therefore, his apparent reliance on principles governing sufficiency of the evidence supporting a conviction or a finding, and the parties' substantial evidence arguments in the trial court, is misplaced.
Clearly, the evidence, which included defendant's testimony that he stabbed Villegas with a knife, is sufficient to support defendant's convictions for murder and assault.
b. Challenge to Gang Expert's Testimony Forfeited
Second, and relevant here, is the trial court's alleged error in not striking the gang expert's testimony and defendant's failure to request relief in that regard. Evidence Code section 353 provides:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
It is well established that "[t]o preserve a claim of error regarding the admission of evidence, a party must object to its admission" (People v. Spencer (2018) 5 Cal.5th 642, 677; accord, People v. Powell (2018) 6 Cal.5th 136, 159), and a "'"defendant's failure to make a timely and specific objection"'" on the ground asserted on appeal makes that ground not cognizable (People v. Valdez (2012) 55 Cal.4th 82, 130; accord, People v. Thomas (2023) 14 Cal.5th 327, 366-367). "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."' [Citation.] 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.'" (People v. Partida, supra, 37 Cal.4th at p. 434; accord, People v. Hopson (2017) 3 Cal.5th 424, 458 &fn. 6; People v. Valdez, supra, at p. 130.)
Here, none of the codefendants objected to the court's ruling or requested that Officer Madsen's testimony be stricken, as stated. Defendant does not argue that trial counsel's failure to either object to the ruling or request the testimony be stricken constituted ineffective assistance of counsel, but it bears note that "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" (Strickland v. Washington (1984) 466 U.S. 668, 690; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1105), and the decision whether to object to the admission of evidence is inherently tactical (People v. Rices (2017) 4 Cal.5th 49, 80; People v. Freeman (1994) 8 Cal.4th 450, 490-491). The absence of any objection is readily explainable in this case given that the trial court found the gang evidence was "inextricably linked" to the prosecutor's theory and that "its probative value [was not] substantially outweighed by the probability that its admission" would "create substantial danger of undue prejudice" under Evidence Code section 352. Furthermore, defendant also planned to, and did, present the testimony of his own gang expert, who opined that at one point, defendant was a gang member; and defendant testified to his own gang involvement.
This case exemplifies the need for an objection to preserve a claim for review. Defendant claims broadly that the trial court erred in failing to strike Officer Madsen's testimony in its entirety and erred in allowing "the prosecution to present highly prejudicial gang testimony and argue gang involvement during closing." However, even after the gang enhancements were dismissed, the gang evidence remained relevant to motive and intent (Tran, supra, 13 Cal.5th at p. 1208; accord, Pineda, supra, 13 Cal.5th at p. 233), and, notably, the prosecution's gang evidence included that relating to Villegas, the admission of which was sought by the four codefendants because it bolstered their theory that Villegas was the aggressor and they acted defensively (Evid. Code, § 1103).
Moreover, this was not a case where the gang evidence relating to any of the four defendants was especially inflammatory. In support of her opinion that defendant was a gang member, Madsen testified to one vehicle stop that led to the discovery of a firearm and items from a burglary and to a second traffic stop, both of which were sanitized. In addition, Madsen discussed defendant's tattoos. Madsen's testimony on these issues was not lengthy or overly detailed, and defendant's gang involvement was not in dispute at trial, as defendant's expert witness testified that at some point defendant was a gang member and defendant admitted to gang association during his testimony. There was also no dispute that the two vehicle stops discussed by Madsen resulted in felony convictions.
In sum, this is not a case in which the introduction of "extremely and uniquely inflammatory" gang evidence that "had no legitimate purpose in [the] trial[]" rendered the trial fundamentally unfair (People v. Albarran (2007) 149 Cal.App.4th 214, 230, fn. omitted (Albarran), or where the prosecutor was toeing the line of "'over-prov[ing]'" its case (People v. Williams (2009) 170 Cal.App.4th 587, 610). Had trial counsel believed there were grounds to object or request that portions of the testimony be stricken or, critically, had counsel desired to do so as a matter of trial strategy, he could have and presumably would have. (People v. Powell, supra, 6 Cal.5th at p. 161.) Counsel did not object to the ruling on any ground, and the unrelated arguments made in support of the codefendants' section 1118.1 motions did not suffice to preserve the evidentiary claim now advanced on appeal for review. (People v. Fruits (2016) 247 Cal.App.4th 188, 208, fn. omitted ["[A] party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct."].)
In relying on Albarran as analogous, defendant characterizes this case as one in which no gang allegations were charged. That characterization is misleading at best and the circumstances in this case bear no resemblance to those in Albarran. In Albarran, the prosecutor proceeded on the theory that the crime was "a 'classic' gang shooting and that the entire purpose of the shooting was to gain respect and enhance the shooters' reputations within the gang community, and to intimidate the neighborhood-essentially to 'earn one's bones' within the gang." (Albarran, supra, 149 Cal.App.4th at p. 219.) However, the only evidence of this was the testimony of the gang expert, who conceded he did not know the motive for the shooting, but nevertheless opined that "gang members commit crimes to gain respect and enhance their status within the gang." (Id. at p. 227.) The appellate court concluded that "[e]ven if ... evidence of [the defendant's] gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes." (Ibid., italics added.)
During oral argument, defendant's counsel also argued that an objection or a request to strike the gang expert's testimony would have been futile. "'"[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence."'" (People v. Perez (2020) 9 Cal.5th 1, 7-8, quoting People v. Brooks (2017) 3 Cal.5th 1, 92.) We find no support in the record for this point, however. (See People v. Thompson (2010) 49 Cal.4th 79, 130 [circumstances must show an objection would have been futile].) Accordingly, we find the claim forfeited. (Evid. Code, § 353; Pineda, supra, 13 Cal.5th at pp. 246-247; People v. Powell, supra, 6 Cal.5th at p. 159.)
As addressed in parts I.C.2.b. and II.C.2. of the Discussion, the claim that it was prejudicial error not to strike Madsen's testimony lacks force in any event. The gang evidence was relevant to motive and intent underlying the murder and assault charges, the gang evidence pertaining to Villegas was affirmatively sought by the four codefendants as a matter of strategy, and Madsen's testimony concerning defendant's gang involvement did not prejudice him with respect to the jury's determination that he committed second degree murder and assault.
C. Claim Two: Insufficient Evidence of Gang Membership
Next, defendant claims that even under the less demanding version of section 186.22 in effect at the time of trial, the evidence was insufficient to support the gang expert's opinion that he was a member of the Arvina 13 criminal street gang. Specifically, defendant targets Madsen's testimony concerning the existence of Arvina 13 as a criminal street gang and the predicate offenses committed by defendant. He also challenges Madsen's reliance on hearsay, in contravention of the California Supreme Court's posttrial decision in Valencia. (Valencia, supra, 11 Cal.5th at p. 839 &fn. 17.) This claim, too, appears to conflate two separate issues.
1. Substantial Evidence
Any challenge based on sufficiency of the evidence falls short for two reasons. First, defendant focuses on a criminal street gang as defined by the STEP Act, but in this case, the relevant criminal street gang within the meaning of section 186.22 was the Eastside Bakers. The prosecutor was not attempting, and was not required, to show that Arvina 13 met the statutory definition of a criminal street gang for the purpose of proving a gang enhancement. Nor was Madsen's testimony about defendant's convictions ever intended to fulfill the predicate offense requirement under the statute. To the contrary, the predicate offenses in this case were the two crimes committed by Eastside Bakers members Miguel and Angel, admitted through two officers with personal knowledge of the events in question.
Second, the prosecutor was only required to prove the elements of the gang enhancement under section 186.22 beyond a reasonable doubt if the trier of fact was asked to render a finding on the issue. The trial court agreed the evidence was insufficient to support the gang enhancement allegations and dismissed the enhancements prior to the close of evidence. Following dismissal, the statutory definition of criminal street gang, including the need to prove qualifying predicate offenses, was no longer controlling and no basis remains for a viable challenge based on insufficient evidence.
2. Admissibility of Evidence
The second issue is the admissibility of the evidence. As discussed previously, defendant's failure to request portions of the gang expert's testimony be stricken following the dismissal of the gang enhancements forfeits his claim that he suffered prejudice through the erroneous admission of any such evidence. Also, as previously stated, this case exemplifies the need for objection to preserve an appellate claim. This was charged as a gang case, the codefendants sought the admission of gang-related evidence pertaining to Villegas's character for aggression or violence, and the trial court found the gang evidence was inextricably intertwined with the prosecution's theory of motive and intent and was not subject to exclusion under Evidence Code section 352. Further, defendant presented gang evidence via his own expert witnesses, and he admitted in testimony that he had been involved with the Arvin Poorside clique and had two prior felony convictions.
Defendant asserts deficiencies with respect to Arvina 13 as a criminal street gang, but, as we have explained, the criminal street gang definition under section 186.22 is not the relevant measure because the prosecutor was not attempting to prove that the crimes were committed to benefit, or in association with, Arvina 13. There is no dispute that street gangs exist as a general matter, and both experts and lay people may testify on the issue, subject to the rules of evidence. (E.g., Evid. Code, §§ 210, 351, 352, 702, 801.) With respect to experts such as Madsen and Flores, "general testimony about a gang's behavior, history, territory, and general operations is usually admissible" (Valencia, supra, 11 Cal.5th at p. 838), and "[t]he same is true of the gang's name, symbols, and colors. All this background information can be admitted through an expert's testimony, even if hearsay, if there is evidence that it is considered reliable and accurate by experts on the gang" (ibid.). Therefore, notwithstanding forfeiture of this issue, we discern no basis for objecting to Madsen's opinion that Arvina 13 is a gang. The same is true for evidence that the Varrio Bakers, the Loma Bakers, and, separate and apart from the statutory elements that must be met under section 186.22, the Eastside Bakers are gangs.
Regarding the admission of defendant's two felony convictions through Madsen, the posttrial decision in Valencia resolved a split among appellate courts and held that "the particular facts offered to prove predicate offenses as required by the STEP Act are not the sort of background hearsay information about which an expert may testify" and must be provided by competent evidence. (Valencia, supra, 11 Cal.5th at p. 839 &fn. 17.) "[A] defendant need not predict subsequent substantive changes in law in order to preserve objections." (People v. Perez, supra, 9 Cal.5th at p. 10.) However, defendant's two felony convictions were not offered as predicate offenses within the meaning of the gang statute, as already stated.
Critically, the record expressly reflects that the parties elected to have Madsen testify to certain contacts and convictions concerning the four codefendants to avoid having the individual officers testify. This was a reasonable tactical choice made during trial, it reflects an affirmative waiver of the hearsay issue, and defendant may not now claim on appeal that the evidence was admitted in error. (People v. Riel (2000) 22 Cal.4th 1153, 1185 ["'[w]hether to object to inadmissible evidence is a tactical decision'"]; People v. Bona (2017) 15 Cal.App.5th 511, 522 [counsel may have reasonably concluded psychologist's testimony that included case-specific hearsay was less damaging than the detailed account that would have resulted had counsel objected under People v. Sanchez (2016) 63 Cal.4th 665, 685].) Under these circumstances, defendant's contrary claim is meritless.
D. Claim Three: Reversal Required Under Assembly Bill 333 1. Section 186.22
Defendant's third claim concerns the effect of Assembly Bill 333 on gang enhancements. First, defendant claims that Assembly Bill 333's amendments to section 186.22 apply retroactively and that reversal of his convictions is required because the showing in this case was insufficient to meet the more stringent requirements under section 186.22 as amended. Specifically, defendant identifies deficiencies in the evidence relating to, one, the existence of Arvina 13 as a "'criminal street gang'" within the meaning of the statute (id., subds. (b)(1), (f)); two, his engagement in offenses that qualify as predicates demonstrating "'a pattern of criminal gang activity'" within the meaning of the statute (id., subd. (e)(1)); and, three, the showing of a benefit to the gang that is more than reputational (id., subd. (g)).
As we have explained, however, because the prosecutor did not allege that the four codefendants committed murder and assault for the benefit of or in association with Arvina 13, the elements under section 186.22 were neither controlling nor relevant with respect to evidence that Arvina 13 is a gang. Furthermore, while there is no dispute that the amendments to section 186.22 apply retroactively to nonfinal cases (Tran, supra, 13 Cal.5th at pp. 1206-1207), the gang enhancement allegations were dismissed prior to the close of evidence. Given that the jury did not return any finding under section 186.22, there is no verdict to evaluate for error and prejudice through the lens of the statute as amended by Assem. Bill 333. (People v. Sek (2022) 74 Cal.App.5th 657, 668 [applying federal constitutional standard of review to change in gang enhancement elements effected by Assembly Bill 333]; see People v. Aledamat (2019) 8 Cal.5th 1, 9 [federal constitutional reasonable doubt standard applies to all errors arising from misdescriptions of the elements].)
2. Section 1109 a. Retroactivity and Standard for Assessing Prejudice
Second, defendant claims section 1109, which was added to the Penal Code by Assembly Bill 333, applies retroactively and reversal of his convictions is required. As the California Supreme Court recognized in Tran, there is presently a split of authority among Courts of Appeal regarding whether section 1109 applies retroactively under In re Estrada (1965) 63 Cal.2d 740. (Tran, supra, 13 Cal.5th at p. 1208.) That issue is presently pending review by the California Supreme Court. (People v. Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743.) As in Tran, we need not decide whether section 1109 is retroactive because, assuming it is, any error is harmless in this case. (Tran, supra, at p. 1208.)
Section 1109 provides: "(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows: "(1) The question of the defendant's guilt of the underlying offense shall be first determined. "(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence. "(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."
With respect to the applicable standard for assessing prejudice, in Tran, the high court rejected the argument that the failure to bifurcate gang enhancements under section 1109 is structural. The court explained, "First, the stated purpose of section 1109 is to reduce the prejudicial impact of gang evidence and to protect defendants from erroneous conviction. (Stats. 2021, ch. 699, § 2, subd. (d)(6) [§ 1109 is designed to prevent the 'further perpetuat[ion]' of 'unfair prejudice in juries and convictions of innocent people'].) Second, errors relating to wrongful admission of evidence are traditionally subject to harmless error review (People v. Schultz (2020) 10 Cal.5th 623, 661 (Schultz)), demonstrating that the effects of these types of errors are not 'simply too hard to measure' [citation]. Finally, although the admission of gang evidence may sometimes result in fundamental unfairness (see, e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 232), this is not always the case. We have held that gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime. (People v. Williams (1997) 16 Cal.4th 153, 194.) Additionally, the fact that section 1109 requires bifurcation only upon a defendant's request suggests there are circumstances where a single trial remains appropriate." (Tran, supra, 13 Cal.5th at p. 1208.)
The court also rejected the argument that the error was of constitutional magnitude, explaining "'[t]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.' (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).) Such prejudice did not occur in this case." (Tran, supra, 13 Cal.5th at p. 1209.) Nor did it occur in this case.
As we have discussed, the trial court granted the defense motion to introduce evidence of Villegas's aggression under Evidence Code section 1103, which necessarily included gang evidence, and, after tentatively granting the motion to bifurcate the gang evidence, the court denied the motion on the ground that the evidence was inextricably intertwined with the prosecution's theory of the case. (Pineda, supra, 13 Cal.5th at p. 233 ["'The People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense.'"].) The trial court also determined that the evidence was not subject to exclusion under Evidence Code section 352. As previously stated, these rulings are not challenged on appeal and "[p]roper admission vitiates [a] defendant's constitutional claim." (People v. Winbush (2017) 2 Cal.5th 402, 458.) Therefore, the harm arising from the failure to bifurcate gang enhancements under section 1109 is assessed under the state law standard set forth in Watson.
b. Any Error Under Section 1109 Harmless
Turning to the issue of error, section 1109, subdivision (a), provides for the bifurcation of gang enhancements under section 186.22, subdivisions (b) and (d), upon request. In this case, the gang enhancements were dismissed, leaving nothing to bifurcate within the meaning of section 1109. Furthermore, the trial court in fact considered whether to bifurcate the gang enhancements, pre-section 1109, and denied the motion.(People v. Hernandez, supra, 33 Cal.4th at pp. 1048-1051.) This leaves the more general argument that admission of gang evidence was erroneous and resulted in prejudice. However, we have already explained that defendant failed to preserve any challenge to the admissibility of Madsen's testimony because he did not object at trial. Further, the record reflects that defendant's two contacts with police were sanitized to his trial counsel's satisfaction, the parties agreed that certain evidence would be admitted through Madsen as a matter of tactical preference, and the trial court and the parties carefully reviewed the gang evidence prior to the commencement of evidence. Assuming for the sake of argument that there remains any basis for a cognizable claim of error vis-a-vis Assembly Bill 333's addition of section 1109 to the Penal Code, it was harmless for the reasons that follow.
The parties appear to have overlooked the fact that bifurcation was requested in this case, as the People argue that defendant's failure to request discretionary bifurcation forfeits the issue on appeal while defendant responds that his failure to do so does not foreclose relief under section 1109.
First, as we have recognized, prior to Assembly Bill 333, it was well established that "[t]rial courts must 'carefully scrutinize' gang-related testimony before admitting it into evidence, because the content of such testimony 'may have a highly inflammatory impact on the jury.' [Citation.] The risk of injecting undue prejudice is particularly high in cases where the prosecution has not charged a gang enhancement and the probative value of the gang evidence is minimal." (People v. Flores (2020) 9 Cal.5th 371, 402; accord, Pineda, supra, 13 Cal.5th at pp. 233-234.) Nevertheless, "'[t]he People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense.'" (Pineda, supra, at p. 233, quoting People v. Chhoun (2021) 11 Cal.5th 1, 31.) "'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.'" (Pineda, supra, at pp. 233-234, quoting People v. Hernandez, supra, 33 Cal.4th at p. 1049.) That was the situation in this case.
The evidence here was scrutinized and sanitized during motions in limine; evidence of Villegas's gang involvement was admitted under Evidence Code section 1103 at the request of the defense; and the prosecutor theorized that the motive and intent underlying the crimes was gang related and directly responsive to Villegas's gang call-out and gang-related aggression. Defendant does not challenge the admission of the gang evidence at the outset of trial and, although he claims on appeal that the gang expert's testimony should have been stricken, he not only forfeited the claim by failing to object in the trial court, but he advances no persuasive argument that he would have been entitled to have Madsen's testimony stricken. Arguably, the most damaging gang testimony pertained to Villegas's involvement in the brutal murder of a teenaged boy and admission of that evidence was affirmatively sought by the four codefendants. The evidence of defendant's two prior felonies, his tattoos, and his membership in the Arvin Poorside clique, as addressed by Madsen, was limited in length and detail, was straightforward, and did not include colorful descriptions designed to paint defendant as a ruthless gangster. Further, defendant offered his own gang expert, who testified defendant was at some point a gang member, and defendant also testified to that fact.
Second, the evidence of defendant's guilt on the underlying charges was unquestionably strong. Jessica, an independent witness, testified to seeing a knife at the waist of a man with braids who had "'KC'" and Raiders tattoos, and the witness saw no one else with braids. It was undisputed that defendant's hair was braided that night and he had "KC" and Raiders tattoos, and other than this witness and defendant, no one else testified to seeing or having a knife or a weapon that night. In addition, Crystal testified that defendant said, "'I got him good'" after the stabbing, Efrain testified that defendant admitted stabbing Villegas, and defendant testified that he grabbed Villegas's knife and started slashing. Under these circumstances, there is no question that defendant inflicted the fatal stab wounds.
This is not a case where defendant's decision to testify was driven by the gang evidence and he makes no claim to the contrary.
Third, the jury asked for readback of all of Jessica's testimony, and then stopped the readback after the prosecutor's direct examination; and the jury asked for a readback of Crystal's testimony right before and right after she testified that defendant said, "'I got him good.'" The jury also asked for a readback of both Efrain's testimony and defendant's testimony, specifically direct examination and cross-examination by the prosecutor concerning the street fight. The jury ultimately rejected the prosecution's theory that the murder was premediated, willful, and deliberate, and convicted defendant of second degree murder. The jury's request for readback of testimony concerning the knife inside the theater and the fatal street fight, and the jury's rejection of premeditated murder, reflect the jury was focused not on the limited evidence of defendant's gang involvement, but on the trial evidence that was relevant to actions taken and state of mind at the time of the fatal altercation.
This was simply not a case where the minimal amount gang evidence pertaining to defendant, consisting of two sanitized felony convictions and his gang tattoos, "'create[d] a risk the jury w[ould] improperly infer the defendant has a criminal disposition and is therefore guilty of the offense[s] charged' [citation] ...." (Pineda, supra, 13 Cal.5th at p. 234.) Accordingly, any arguable error under section 1109 was harmless because "it is not reasonably likely that a bifurcated trial would have changed the jury's verdict." (Tran, supra, 13 Cal.5th at p. 1210.)
II. Instructional Error
A. Background
Finally, pursuant to CALCRIM No. 361, which addresses the failure to explain or deny adverse evidence, the trial court instructed the jury," If defendant Efrain ... or defendant . . . failed in-this is for each of them but separately so I'll say in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. [¶] Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it's up to you to decide the meaning and importance of that failure. Again, this is only applicable to Efrain ... and [defendant]."
Defendant claims that the trial court erred in giving this instruction and that, coupled with the errors in admitting the gang evidence, reversal is compelled. The People respond that defendant's failure to object to the instruction forfeits the claim on review and that, assuming the instruction did not apply, it was not prejudicial under Watson.
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437.) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
C. Analysis 1. CALCRIM No. 361
The California Supreme Court addressed CALCRIM No. 361 in People v. Cortez, holding that it "applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge. The instruction acknowledges to the jury the 'reasonable inferences that may flow from silence' when the defendant 'fail[s] to explain or deny evidence against him' and 'the facts are peculiarly within his knowledge.' [Citation.] As to incriminating evidence that a testifying defendant denies or explains, there is no silence from which an inference 'may flow.' [Citation.] Even if the defendant's testimony conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre, it is not, ... 'the functional equivalent of no explanation at all.'" (People v. Cortez (2016) 63 Cal.4th 101, 117.) Rather, where "circumstances ... suggest that the defendant may have 'deliberately lied about something significant,' ... a court may ... instruct jurors to 'consider not believing anything that witness says.'" (Ibid., quoting CALCRIM No. 226.)
The jury was instructed with CALCRIM No. 226.
"By contrast, the focus of CALCRIM No. 361, as its language indicates, is not on the defendant's credibility as a witness, but on the role of a testifying defendant's failure to explain or deny incriminating evidence in how jurors 'evaluat[e] that evidence,' i.e., the evidence the defendant has failed to explain or deny. In other words, as we have stated, a testifying defendant's failure to explain or deny incriminating evidence-i.e., '[a] defendant's silence'-cannot 'be regarded as a confession' and 'does not create a presumption or warrant an inference of guilt, but should be considered only in relation to evidence that he fails to explain or deny.'" (People v. Cortez, supra, 63 Cal.4th at p. 118.)
2. Any Error Harmless
Defendant did not object to the instruction he now challenges on appeal. Generally, the failure to object in the trial court forfeits the claim on appeal, but there is an exception "if the substantial rights of the defendant were affected thereby." (§ 1259; accord, People v. Johnson (2016) 62 Cal.4th 600, 638.) We agree with the People that defendant's failure to object to the instruction forfeits the claim on review, but the instruction was harmless in any event.
"Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."'" (People v. Cross (2008) 45 Cal.4th 58, 67; accord, People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247; People v. Eulian (2016) 247 Cal.App.4th 1324, 1335.) "Such error does not implicate the defendant's constitutional rights and is subject to harmless error review under ... Watson .." (People v. Falaniko, supra, at p. 1247.) We inquire "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354, citing Watson, supra, 46 Cal.2d at p. 837.)
Pursuant to CALCRIM No. 200, the trial court instructed the jury that "[s]ome of these instructions may not apply depending on your findings about the facts of the case. Do not assume, just because I'm giving you a particular instruction, that I'm suggesting anything about the facts." As stated, jurors are presumed to have followed the trial court's instructions. (People v. Parker (2022) 13 Cal.5th 1, 71; People v. Gonzalez (2018) 5 Cal.5th 186, 205-206; People v. Sandoval, supra, 62 Cal.4th at p. 422.)
Defendant denied he had a knife on him and said he had only a cell phone case at his waist. He testified after seeing Villegas pull a knife while fighting with Efrain, he disarmed Villegas and, blinded by his own hoodie, started swinging the knife in defense of himself and his family. He did not think his swings connected with anything, and he dropped the knife by the curb and ran to the car when he heard sirens. He also denied he said "Arvin" in response to "Varrio," and he explained he only said Arvin once in front of the theater, indicating to Villegas's group that he was not from the area. Assuming that the instruction on defendant's failure to explain or deny the evidence against him should not have been given in light of this testimony, we presume the jury disregarded the instruction as inapplicable. Further, given defendant's explanation of the stabbing that night and his role as the perpetrator, any error in giving the inapplicable or irrelevant instruction was harmless. There is simply no reasonable probability that defendant would have obtained a more favorable outcome had this instruction been omitted. (People v. Aranda, supra, 55 Cal.4th at p. 354.)
Defendant also argues that "[i]n light of the prejudice resulting from the errors discussed [ante], including evidentiary failures of proof as to gang matters and the absence of strong evidentiary support for the jury's finding of culpability on the underlying offenses and the erroneous instruction pursuant to CALCRIM [No.] 361, [defendant's] convictions now should be reversed." To the extent defendant is raising the issue, "[c]umulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant." (People v. Capers (2019) 7 Cal.5th 989, 1017, citing People v. Winbush, supra, 2 Cal.5th at p. 487; accord, People v. Hinton (2006) 37 Cal.4th 839, 897, 913.) In this instance, the instructional error was harmless, and defendant was not prejudiced by any combination of errors.
It bears repeating that defendant admitted he was wielding the knife when Villegas was stabbed, and he advances no claim that his decision to testify was driven by Madsen's testimony that he was a member of Arvina 13 who had two felony convictions and gang tattoos. Indeed, the record is devoid of any support for such a contention. To the contrary, the evidence most damaging to defendant, and that which almost certainly drove his decision to testify, was the independent witness testimony that a man with braids and KC and Raiders tattoos had a knife at his waist in the theater, Crystal's testimony about his statement in the car, and Efrain's testimony about his admission in jail. There is simply no support for a claim of cumulative error in this case. (People v. Winbush, supra, 2 Cal.5th at p. 487; People v. Hinton, supra, 37 Cal.4th at pp. 897, 913.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, Acting P. J. DeSANTOS, J.