Opinion
B287411
04-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC RICHARD SAILOR, et al., Defendants and Appellants.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Eric Richard Sailor, Charlotte E. Costan for Defendant and Appellant Julio Cesar Reyes, Chris R. Redburn for Defendant and Appellant Daniel Martinez. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez, Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA426418 APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Eric Richard Sailor, Charlotte E. Costan for Defendant and Appellant Julio Cesar Reyes, Chris R. Redburn for Defendant and Appellant Daniel Martinez. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez, Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellants and defendants Eric Richard Sailor, Julio Cesar Reyes, and Daniel Martinez ("appellants") were convicted of murder, Reyes and Martinez were also convicted of second degree robbery, and the jury found true various gun use and gang allegations. We affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney's Office filed an amended information charging appellants with murder (Pen. Code, § 187, subd. (a); count one) and robbery (§ 211, subd. (a); count two). The information also charged Sailor with possession of a firearm by a felon (§ 29800, subd. (a)(1); count three), and Martinez with unlawful firearm activity (§ 29805; count four). The information alleged appellants committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subds. (b)(1)(C) [counts one and two] & (b)(1)(A) [counts three and four]); a principal personally discharged a firearm during the commission of count one (§ 12022.53, subds. (b), (c), (d), & (e)(1)); Martinez personally used a firearm during the commission of count two (§ 12022.53, subd. (b)); and Reyes was a minor who was at least 16 years of age at the time of the offenses (Welf. & Inst. Code, § 707).
All undesignated statutory references are to the Penal Code.
The jury found appellants guilty of first degree murder (count one) and found true all the gun and gang allegations attached to that count. It found Martinez and Reyes guilty of second degree robbery (count two) and found true the allegation Martinez personally used a firearm during the offense, but found the gang allegations not true. The jury found Sailor not guilty of count two. It found Sailor guilty of count three and found the gang allegation true. Finally, the jury found Martinez guilty of count four and found the gang allegation true.
The trial court sentenced Sailor to a total of 50 years to life in state prison, consisting of an indeterminate term of 25 years to life on count one, and a consecutive 25-years-to-life firearm enhancement imposed under section 12022.53, subdivisions (d) and (e). The court imposed a concurrent seven-year sentence on count three, consisting of a three-year upper term for the offense and a four-year gang enhancement (§ 186.22, subd. (b)(1)(A)).
The court sentenced Reyes to a total of 53 years to life in state prison, consisting of an indeterminate term of 25 years to life on count one, a consecutive 25-year-to-life firearm enhancement imposed under section 12022.53, subdivisions (d) and (e), and a consecutive three-year mid-term on count two.
The court sentenced Martinez to a total of 63 years to life in state prison, consisting of an indeterminate term of 25 years to life on count one, a consecutive 25-year-to-life firearm enhancement imposed under section 12022.53, subdivisions (d) and (e), a consecutive three-year mid-term on count two, and a consecutive 10-year gun enhancement (§ 12022.53, subd. (b)). The court imposed a concurrent term of five years on count four, consisting of a two-year mid-term and a three-year gang enhancement.
Appellants timely appealed.
FACTUAL BACKGROUND
1. Prosecution Case
1.1 Sailor and Martinez obtain the van used in the offenses
On June 19, 2014, between 9:00 and 10:00 p.m., Letty Garcia was driving her van in Los Angeles when she saw appellants Martinez and Sailor standing in front of a liquor store at the corner of 54th Street and Normandie Avenue. Garcia was romantically involved with Henry Calleros, an 18th Street gang member, and she knew Martinez and Sailor to be members of the gang. Garcia picked up Martinez and Sailor and drove to a friend's residence located near the intersection of Vermont Avenue and Hoover Street. Garcia went into her friend's residence while Martinez and Sailor waited in the van. Garcia left her keys inside the van. When Garcia left her friend's residence at approximately 10:30 p.m., the van was gone. Garcia called Martinez and Sailor repeatedly on their cell phones, but they did not answer her calls.
1.2 Robbery of Miguel Ruiz
At 11:50 p.m., Miguel Ruiz left his house and went to the trunk of his car, which was parked on the street in front of his house. Garcia's van came to a stop alongside Ruiz. Reyes got out of the front passenger-side door, while Martinez got out of the rear, sliding passenger-side door. The driver of the van remained inside the car. Martinez pointed a handgun at Ruiz's face. Martinez ordered Ruiz to turn around. Ruiz complied. Martinez frisked Ruiz and took his driver's license, a medical marijuana license, and marijuana from his person. Martinez placed the firearm against the back of Ruiz's head. Meanwhile, Reyes went into Ruiz's car and took Ruiz's stereo.
Martinez told Ruiz to walk towards the gate of his house, and stated, "[j]ust don't look back, if you do, we'll shoot." Ruiz complied. Reyes and Martinez got back into the van and the van drove away.
Two days after the robbery, Ruiz identified Martinez in a photographic array as the person who pointed a gun at him during the robbery. Ruiz identified Reyes in a photographic array as the person who took his car stereo. Ruiz was unable to identify the driver of the van from a photographic array. Ruiz confirmed his identifications of Martinez and Reyes to Los Angeles Police Department Detective Dean Vinluan the day before trial. At trial, Ruiz testified Reyes and Martinez were not his assailants, and that he had not been certain of his pretrial identifications at the time he made them. Ruiz expressed fear of testifying against Reyes and Martinez both before trial and during his trial testimony. Before trial, Ruiz failed to appear in court on two occasions despite having been subpoenaed as a witness, and he was placed into custody as a result. Ruiz explained he failed to appear because he had been afraid to testify. After Ruiz made his pretrial identifications, he learned one of his girlfriend's friends knew Martinez's girlfriend.
1.3 Murder of Jose Horta
Less than two hours later, at approximately 1:40 a.m., Sailor was driving Garica's van when appellants spotted rival gang member Jose Horta on Figueroa Avenue. Sailor stopped the van and appellants shot Horta repeatedly.
The jury watched surveillance video depicting portions of the shooting, which detectives obtained from a church at the location where the shooting occurred.
Los Angeles Police Department Sergeant Joe Scida and his partner, Officer Gonzalez, were in a marked patrol car near the intersection of 54th Street and Figueroa Avenue. Sergeant Scida heard five or six gunshots, which sounded like they came from two different caliber firearms. One of the weapons sounded like a .22 caliber firearm, and the second sounded like a different caliber firearm. The shooting paused for about one second, then Sergeant Scida heard a second set of five to six gunshots. The gunshots sounded like they had come from just north of his location.
Sergeant Scida looked north on Figueroa and saw Garcia's van approximately one block away, facing his patrol car. The van was stopped in the street. Sergeant Scida saw Horta, who was next to the van, fall to the ground.
Sergeant Scida drove toward the van as the van fled in his direction. Sergeant Scida made eye contact with Sailor, the driver, as their cars passed one another. Sergeant Scida got behind the van, turned on his lights and siren, and attempted to stop appellants' van. Sailor did not stop, and he led Sergeant Scida on a pursuit.
Sailor drove southbound on the 110 Freeway. Appellants threw a firearm from the passenger side of the van just north of the Manchester Avenue exit. Sailor drove westbound on the 105 Freeway, reaching speeds of 120 miles per hour. There were moments when appellants' van was so far ahead of the pursuing officers that it was out of the officers' sight. Sailor took the freeway exit at Sepulveda Boulevard, drove through the tunnel under LAX, and attempted to turn onto Lincoln Parkway, but lost control of the van and crashed.
Police officers subsequently recovered a .22-caliber revolver from the location on the freeway where appellants discarded the weapon. The nine-shot revolver contained seven expended shell casings and two live rounds.
Sailor and Reyes fled from the van and were apprehended moments later. Martinez remained inside the van, sitting in the rear passenger seat, and was arrested at the scene. Martinez had Ruiz's driver's license on his person at the time of his arrest.
Police officers recovered two expended .38-caliber shell casings from inside of the van, and a third from the ground just outside of the van. Ruiz's stereo was found inside of the van. Meanwhile, police officers responded to the scene of the shooting and found Horta with multiple gunshot wounds. Officers called for an ambulance, and Horta was transported to a hospital, where he died as a result of the gunshot wounds following an operation. Horta had been shot five times: once in his abdomen, three times in his back, and once in his left, rear thigh. One bullet was recovered from Horta's body during surgery and three more were recovered during his autopsy.
Police officers recovered an expended .38-caliber shell casing, one expended bullet, and three bullet fragments from the area where Horta had been shot.
Jessica Moody, a criminalist in the Los Angeles Police Departments' Firearms Analysis Unit, test fired the recovered .22-caliber revolver and compared the expended shell casings and bullets to the shell casings and bullets recovered from the scene of the shooting and from appellants' van. Moody determined two of the bullets recovered from Horta's body during the autopsy had been fired from the .22-caliber revolver. A bullet recovered from Horta's clothing following the shooting had also been fired from the revolver. All the expended shell casings in the revolver had been fired from that weapon. All the other shell casings recovered from the scene of the shooting and from the van had been fired from the same .38-caliber firearm, and not from the .22-caliber revolver. All the other expended bullets recovered, including one recovered from Horta's body during the autopsy, had been fired from the same .38-caliber firearm. Moody was unable to determine whether a single .38-caliber firearm had discharged both the expended .38-caliber shell casings and bullets, because no such weapon was ever recovered for purposes of comparison.
1.4 Appellant Sailor's statements to A.M.
On June 20, 2014, Detective Vinluan contacted A.M., a former gang member who posed as an inmate in exchange for cash, and arranged to place him into a holding cell in the police station with Martinez and Sailor while wearing a recording device. Detective Vinluan told A.M. the nature of appellants' offense, and that appellants were members of the 18th Street gang. A.M. received a total of $1000, and payment was not conditioned on whether appellants spoke with him. A.M. was first placed into a cell with Martinez. After approximately 30 minutes, detectives had Martinez removed from the cell, and they brought Sailor into the cell.
A.M. was once a drug dealer for the Mexican Mafia, and he had "13" tattooed on his right arm, along with other gang-related tattoos. A.M. was convicted of robbery in 2001. In 2010, A.M. was arrested by the Drug Enforcement Agency for conspiracy to distribute methamphetamine, and he agreed to cooperate in the investigation in exchange for a more lenient sentence. In 2015, after A.M.'s codefendants were found guilty, he pleaded guilty to conspiracy to distribute methamphetamine and was placed on federal probation.
The jury watched a video recording of Sailor's conversation with A.M., and jurors were provided with a transcript of the conversation to assist them in following the video.
Sailor introduced himself to A.M. as "Rocky from 18th." A.M. told Sailor he had just spoken with Martinez, and Martinez had stated they had been involved in a police pursuit. Sailor confirmed they had been. Sailor told A.M. he "just got hit" two days prior, and he said, "that's what all this [expletive] is over . . . ." A.M. responded, "so you think it's behind the same [expletive]." Sailor stated, "That's what it is."
Sailor told A.M. they approached Horta and asked him, "where you from[?]" Sailor told A.M., "All three of us. All three of us let him have it." A.M. responded, "All three of you got down? He said . . . I thought it was just two of you." Sailor explained Martinez and Reyes had gotten out of the van before the shooting and Reyes fired first. \Sailor told A.M. they threw the guns out the window of the van on the freeway during the pursuit.
Sailor told A.M., "My baby mama, my baby mama [unintelligible] some fool from Temple ¶ . . . ¶ that fool did something to the homies ¶ . . . ¶ [a]nd I caught wind" of it. Sailor told A.M. he went to 51st Street looking for Temple Street gang members, and three of them ran and hid. A.M. asked Sailor, "[i]s . . . this . . . the right one you guys wanted of the homies?" Sailor responded, "It's not the one I wanted but, you know?"
Sailor and A.M. discussed the seriousness of the charges Sailor would face as the result of his offense. Sailor stated, "I'll take 25 [to] life. If they offer me 25 [to] life." A.M. responded, "You'll take it? You're still young. You'll have an opportunity to come home." Sailor responded, "Yeah, that's what I'm saying."
1.5 Appellants' conduct prior to the murder of Horta
In June of 2014, Horta lived in a house located on 52nd Street, between Figueroa and Hoover. Horta lived with his sister, his brother, his brother's wife Rubie Magana, and Magana's children. Horta was a gang member.
Horta's house was located approximately one-third of a mile from the site of his murder, and it was approximately a mile and a half from where Ruiz was robbed.
Approximately four days before Horta's murder, Sailor rode past Horta's house on a bicycle and looked at Magana as she stood outside the residence.
Two days later, Magana was standing in front of her house with Horta's brother and her son when she saw Sailor driving a van slowly past her house with Reyes in the passenger seat. The van was identical in color, make, and model to the van used in Horta's murder. Sailor and Reyes looked at Magana and Horta's brother as they drove past. Horta's brother repeatedly told Magana to "go inside" once he saw the van.
Magana had identified Sailor and Reyes from photographs following Horta's murder, but she equivocated about her identifications at trial. Magana was afraid to testify against them because their fellow gang member, Calleros, had been staring angrily at her during a pretrial appearance she had been ordered to attend. Calleros later came within a foot and a half of her, clenched his fists, and lunged towards her. Magana felt threatened as a result of Calleros's conduct.
1.6 Gang evidence
Los Angeles Police Officer Daniel Garcia worked in the department's gang enforcement detail from 2007 until 2016, and he was assigned to investigate the 18th Street gang. Officer Garcia explained the 18th Street gang had approximately 3,000 members in Los Angeles County. 18th Street gang members adopted "E," "1-8," "XB3," "Tripple 6," and "X8" as common signs or symbols, and they made hand signs indicating "E" to represent the gang. Officer Garcia opined the primary activities of 18th Street gang members included committing murder, attempted murder, witness intimidation, robbery, assault, and extortion.
The People introduced certified court documents pertaining to 18th Street gang member Joe Rodriguez, who was convicted in Los Angeles County Superior Court case number BA405944 of murder and two counts of attempted murder for offenses committed on August 26, 2012. The People also introduced certified court documents pertaining to 18th Street member Carlos Numberto Morales, who was convicted of murder and attempted murder in case number KA098830 for offenses occurring on November 21, 2013.
Officer Garcia explained the 18th Street gang is comprised of different subsets or "cliques," and the cliques controlled discrete territory. Members of different cliques considered themselves to be members of a single gang—18th Street—and members of different cliques regularly committed crime together and operated with impunity in each other's territory. The robbery of Ruiz and the murder of Horta took place in territory controlled by 18th Street gang's Southside clique.
Officer Garcia explained the 18th Street gang was a rival of the Temple Street gang, and members of the two gangs would assault one another on sight. The 18th Street gang was very territorial, seeking both to defend and expand its territory.
Officer Garcia explained 18th Street gang members were expected to commit crimes on behalf of the gang, and gang members earned respect within their gang by committing violent offenses. The more violent the offense committed, the larger the reputation of the individual gang member within the gang and the gang in the community as a whole. When gangs regularly committed violent offenses, members of the community refused to testify against them, allowing the gangs to commit even more crimes without fear that their offenses would be reported or prosecuted. Members of the 18th Street gang regularly intimidated witnesses to their crimes.
Appellants all admitted their membership in the 18th Street gang to law enforcement officers. Sailor was known as "Silent," Martinez was known as "Dreamer," and appellant Reyes was known as "Bone." Appellants each had tattoos on their bodies reflecting their membership in the 18th Street gang.
Based on hypothetical questions presenting facts identical to those in this case, Officer Garcia opined appellants committed their offenses in association with the 18th Street gang because they worked together to rob Ruiz and murder Horta. Officer Garcia explained the offenses benefitted the 18th Street gang because they furthered the reputation of appellants and of the gang as a whole, both in the community and with rival gang members, and because the commission of the offenses would further deter members of the community from reporting future offenses or cooperating with law enforcement out of fear of retaliation.
2. Martinez and Reyes's Cases
Appellants Martinez and Reyes did not testify or present affirmative evidence.
3. Sailor's Case
Appellant Sailor did not testify. Sailor called Martin Flores as an expert witness regarding gangs. Through Flores's testimony, Sailor sought to undermine the prosecution's theories that he was a shooter and that the crime was committed for the benefit of a criminal street gang. Flores explained the 18th Street gang was an "umbrella gang" comprised of many separate cliques which operated as individual gangs. Although all members identified themselves as 18th Street gang members, the individual cliques had their own identities, territories, leadership, and rivalries. The cliques did not pay revenue upwards to a larger gang structure, and they did not share information with one another on an ongoing basis. Members of one clique needed the permission of the leadership from a second clique in order to enter into the second clique's territory and commit a crime. Out of 60 drive-by shooting cases Flores had experience with, he could only recall one where the driver was the shooter.
DISCUSSION
1. Substantial evidence supports the trial court's finding that the prosecutor did not exercise a peremptory challenge on the basis of race
After the prosecutor exercised his ninth peremptory challenge to excuse prospective juror number 9362, appellants made a Batson/Wheeler motion, noting prospective juror number 9362 was the fourth African-American juror the prosecutor had excused. The trial court found appellants had made a prima facia case giving rise to an inference of discriminatory purpose, and it asked the prosecutor to justify his exercise of the challenges. The prosecution explained its reasons for exercising each peremptory challenge. After hearing the prosecutor's reasoning, the trial court concluded: "Looking at the justification and group neutral reasons offered by the prosecution, I do find they are clear, they are specific, they're not vague or ambiguous." The trial court proceeded to analyze each of the four peremptory challenges in greater detail, and denied appellants' motion.
Batson v. Kentucky (1986) 476 U.S. 79, 89; People v. Wheeler (1978) 22 Cal.3d 258, 276-277, overruled in part by Johnson v. California (2005) 545 US. 162, 168 (Johnson).
Martinez argues the trial court erred in denying his Batson/Wheeler motion. Sailor and Reyes join Martinez's argument. For the reasons discussed below, we reject appellants' contention.
1.1 Applicable legal principles
The use of peremptory challenges to strike prospective jurors because of their race violates the right of a criminal defendant to be tried by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and the right to equal protection under the United States Constitution. (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott); see Batson, supra, 476 U.S. at p. 88.) When a defendant believes the prosecutor's reason for exercising a peremptory challenge is based upon such discrimination, a timely Batson/Wheeler motion must be made to preserve the defendant's right. (People v. Young (2005) 34 Cal.4th 1149, 1172.)
The United States Supreme Court has reaffirmed that Batson states the procedure to follow in considering such a motion. (Johnson, supra, 545 U.S. at p. 168; see also Snyder v. Louisiana (2008) 552 U.S. 472, 476-477.) A trial court follows a three-step procedure: first, the defendant must make out a prima facie case "'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose'"; second, if the defendant makes a prima facie case, the "'burden shifts to the [prosecutor] to explain adequately the racial exclusion'" by offering permissible race-neutral justifications for the strikes; and third, if the prosecutor offers a race-neutral explanation, the trial court then decides whether the defendant has proven purposeful discrimination. (Johnson, supra, 545 U.S. at p. 168; Scott, supra, 61 Cal.4th at p. 383.)
Review of a trial court's denial of a Wheeler motion is "'"deferential, examining only whether substantial evidence supports its conclusions."'" (People v. Mai (2013) 57 Cal.4th 986, 1048, internal citations omitted.) Appellate courts "'review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges "with great restraint. [Citation.]'"" (Ibid., internal citation omitted.) "'"We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses."'" (Ibid., internal citation omitted.) "'"So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]"'" (Id. at pp. 1048-1049, internal citations omitted.)
1.2 Substantial evidence supports the trial court's finding that the prosecution provided legitimate race-neutral reasons for dismissing the prospective jurors
Upon review of the prosecution's reasons for dismissing each of the four prospective African-American jurors and the trial court's ruling, we conclude substantial evidence supports the court's denial of appellants' Batson/Wheeler motion. We will discuss each prospective juror in turn.
The prosecutor told the trial court he exercised a challenge against prospective juror number 7433 in part because she believed police officers are right only 50 percent of the time, which the prosecutor "thought was quite a large amount . . . for the police to be wrong." The court concluded the prosecution's reason for exercising the challenge was genuine, group-neutral, and justified. Substantial evidence supports the trial court's conclusion. A prosecutor may exercise a peremptory challenge on the basis of a prospective juror's lack of trust in law enforcement officers. (See e.g. People v. Woodruff (2018) 5 Cal.5th 697, 751 (Woodruff); see also People v. Clark (2011) 52 Cal.4th 856, 907 (Clark) ["A prospective juror's distrust of the criminal justice system is a race-neutral basis for excusal." Internal citation omitted].)
Because we find this reason sufficient, we need not address the prosecution's argument and the trial court's finding regarding prospective juror 7433's contradictory answers concerning whether she could make a decision based on the testimony of a single witness.
Similarly, the prosecutor told the court he exercised a peremptory challenge against prospective juror 9031 (a 911 dispatcher for the Los Angeles Police Department) because she expressed a belief that "the police were correct and incorrect 50 percent of the time." The court concluded the remark was sufficient for the prosecution to infer the prospective juror "[did not] have a very good opinion of the police," and was a group-neutral reason justifying the peremptory challenge. Substantial evidence supports the trial court's conclusion because, as noted above, a juror's perception of law enforcement is a valid race-neutral basis for a prosecutor to exercise a peremptory challenge. (See Woodruff, supra, 5 Cal.5th at p. 751; see also Clark, supra, 52 Cal.4th at p. 907.)
Turning to prospective juror 9877, the prosecutor told the court he exercised a peremptory challenge on her in part because she had been arrested one year earlier for arguing with her boyfriend and was upset with the arresting officer. The trial court concluded the prosecution's explanation was "group neutral and genuine." Substantial evidence supports this conclusion. Our Supreme Court has repeatedly held a prosecutor may exercise a peremptory challenge on the basis of a prospective juror's prior negative experiences with law enforcement. (See e.g. People v. Lenix (2008) 44 Cal.4th 602, 628; People v. Turner (1994) 8 Cal.4th 137, 171.)
Lastly, the prosecutor told the court he exercised a peremptory challenge on prospective juror 9362 because she had "lived with her boyfriend who was a gang member," and he therefore believed she might be sympathetic to appellants. Substantial evidence supports the court's conclusion that this was a group-neutral justification. A prosecutor may exercise a peremptory challenge on the ground that a prospective juror has relatives or friends who are gang members. (People v. Watson (2008) 43 Cal.4th 652, 679; see also People v. Williams (1997) 16 Cal.4th 153, 191 [concern that a prospective juror may be sympathetic toward gang members is a neutral legitimate reason for exercising a peremptory challenge].)
In support of his argument, Martinez relies on People v. Gutierrez (2017) 2 Cal.5th 1150, a case in which the Supreme Court reversed based on an inability to conclude, based on the record presented, that the trial court made a "'sincere and reasoned attempt to evaluate the prosecutor's explanation'" regarding one of the prospective jurors. (Id. at p. 1172, internal citation omitted.) As discussed above, we are persuaded based on the record presented that the trial court made a sincere and reasoned effort to evaluate the prosecutor's explanations with respect to all four prospective jurors. (See id. at p. 1172.) Gutierrez also states: "Some neutral reasons for challenges are sufficiently self-evident, if honestly held, such that they require little additional explanation." (Id. at p. 1171.) We are persuaded that here, unlike in Gutierrez, the neutral reasons given by the prosecution were sufficiently self-evident to justify the peremptory challenges without requiring further explanation.
In sum, substantial evidence supports the trial court's conclusion that the prosecutor had legitimate, race-neutral reasons for excusing each prospective juror.
2. The trial court did not err by allowing evidence concerning the Mexican Mafia
Reyes argues the trial court prejudicially erred under state law and federal due process by allowing the prosecution to elicit gang testimony regarding the Mexican Mafia. Sailor and Martinez join Reyes's argument. Even assuming appellants did not forfeit the argument by failing to lodge sufficiently specific timely objections in the trial court, we reject the contention. The evidence the prosecution adduced regarding the Mexican Mafia was relevant to rebut the defense that Sailor may have lied to A.M. when he implicated himself, Reyes, and Martinez in the murder of Horta. This defense was relevant to all three appellants because Sailor's comments to A.M. implicated all of them. Because the evidence was relevant and properly admitted, we find no abuse of discretion or constitutional error. Even assuming error for the sake of argument, we see no prejudice because the evidence presented against appellants was overwhelming.
Appellants each raise numerous arguments in this lengthy appeal. Although appellants all join in each other's arguments, they do not provide record citations showing which arguments they have preserved by objecting below in the trial court.
2.1 Factual and procedural background
During Sailor's cross-examination of A.M., defense counsel elicited testimony that A.M. was once a drug dealer for the Mexican Mafia, and that he had "13" tattooed on his right arm and "Sur" tattooed on his left arm. A.M. was wearing a short sleeve shirt when he spoke with Sailor in the jail cell.
During Sailor's cross-examination of Officer Garcia, the People's gang expert, defense counsel elicited testimony that a tattoo of the number "13" is a reference to the letter "M," that a tattoo of "Sur" stands for Sureno, and that both are references to the Mexican Mafia. Defense counsel elicited Officer Garcia's opinion that anyone with "Sur" tattooed on his body has "put[] in work for the Mexican Mafia." Defense counsel elicited Officer Garcia's opinion that the Mexican Mafia was a dangerous gang that commits violent crimes in custodial facilities. Defense counsel elicited Officer Garcia's opinion that someone with Mexican Mafia tattoos in a custodial setting might have influence with that gang, and that other inmates might fear that individual. Officer Garcia opined people who are "familiar with gang life" are aware of the meaning of A.M.'s tattoos.
During the prosecutor's redirect examination of Officer Garcia, he asked about the relationship of the Mexican Mafia to street gangs. Reyes's counsel objected on relevance grounds, and the court sustained the objection and requested a sidebar.
Outside the presence of the jury, the prosecutor explained he anticipated Sailor was laying the groundwork for a defense in which he would allege he lied to A.M. about the offenses and had only been "bragging about crimes they didn't commit." The prosecutor wanted to elicit evidence showing it would be against gang rules to lie to a member of the Mexican Mafia in jail, and there could be adverse consequences to claiming to have committed a crime one did not commit. The trial court noted defense counsel had opened the door by eliciting testimony about the Mexican Mafia, and ruled admissible testimony regarding whether a gang member would lie to a member of the Mexican Mafia.
Officer Garcia subsequently testified the Mexican Mafia controls Hispanic gangs south of Bakersfield, including rival gangs to one another. Officer Garcia opined if a gang member lied to someone he perceived to be a member of the Mexican Mafia in the county jail, taking credit for an offense that he did not actually commit, there would be repercussions, including the possibility of being assaulted or killed. Officer Garica explained this would be common knowledge among 18th Street gang members. Appellants posed no objection to Officer Garcia's testimony.
During Sailor's closing argument, defense counsel argued to the jury Sailor's statements to A.M. were braggadocio and Sailor had been motivated to fabricate or exaggerate his role in the offense against Horta by A.M.'s presence and the sight of A.M.'s Mexican Mafia tattoos.
Martinez's counsel also told the jury during closing argument that Sailor's statements to A.M. were calculated to impress A.M. because Sailor wanted to align himself with someone who had "pull" with the Mexican Mafia, given that the Mexican Mafia controlled the prisons where Sailor would be housed if convicted.
During the People's rebuttal argument, the prosecutor addressed appellants' "theory that [A.M.] was some Mexican Mafia and [Sailor] was just trying . . . to brag and be safe and protect himself."
2.2 The trial court did not err in allowing the evidence
Evidence Code section 351 provides: "Except as otherwise provided by statute, all relevant evidence is admissible." Relevant evidence includes evidence having "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Rebuttal evidence is relevant and admissible if it "tend[s] to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) Trial courts have broad discretion in determining the admissibility of rebuttal evidence. (People v. Harris (2005) 37 Cal.4th 310, 335.) We review the trial court's decision to allow the evidence for abuse of discretion. (Ibid.) We do not disturb the trial court's exercise of discretion on appeal unless it was exercised in "an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.) We find no abuse of discretion. The evidence was relevant to rebut Sailor's defense that he fabricated or exaggerated his statements to A.M. about Horta's murder out of fear, or based on braggadocio, because of the presence of A.M.'s Mexican Mafia tattoos. Indeed, this evidence was relevant to the entire case, because Sailor's statements to A.M. strongly inculpated all three appellants. Any defense undermining the veracity of Sailor's statements to A.M. was thus relevant to all parties. Because the evidence was relevant and admissible, we find no federal due process violation.
2.3 Prejudice
Even assuming error, we find no prejudice under either People v. Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California (1967) 386 U.S. 18, 24. The jury was shown a video in which Sailor told A.M. all three appellants shot Horta and the shooting was gang-motivated. Officers who were a block away when the shooting occurred observed appellants fleeing in a van and gave chase. Ballistics evidence also strongly supported the inference that appellants murdered Horta. Appellants had a strong motive to kill Horta, who they believed was a rival gang member, and the prosecution presented evidence that Sailor and Reyes slowly drove past Horta's house mere days before the murder. In sum, the evidence of appellants' guilt was overwhelming. We find no prejudice.
We also note that nothing about the challenged evidence suggested appellants were themselves members of the Mexican Mafia.
3. The trial court did not abuse its discretion or violate appellants' constitutional rights when it admitted Sailor's recorded statements to A.M. as declarations against interest
Reyes argues the trial court's admission of inculpatory statements Sailor made to A.M. while in jail violated state hearsay rules and his constitutional right to be confronted with witnesses against him. Reyes and Sailor both argue the court deprived them of their right to a fair trial by allowing A.M. to alter the transcript of his conversation with Sailor prior to trial and by providing the transcript to the jury. Appellants all join in these arguments. We reject these contentions. Sailor's statements to A.M. were admissible as declarations against interest. Their admission did not violate the confrontation clause because they were nontestimonial. Lastly, we conclude the trial court did not err by allowing the jury to have a transcript of the statements.
3.1 Factual and procedural background
Prior to trial, the prosecutor filed a motion in limine seeking the admission of portions of Sailor's recorded statements to A.M. in which Sailor stated all three appellants had shot at Horta, they had done so because Horta was a rival Temple Street gang member, and Sailor had actually set out to shoot a different member of the Temple Street gang. The prosecutor's motion argued Sailor's statements to A.M. were nontestimonial and constituted declarations against penal interest.
Sailor filed a motion in limine asking the trial court to exclude his statements to A.M. "because the prosecution has failed to disclose the identity and prior convictions of the confidential informant." In the alternative, Sailor asked the trial court to exclude discrete portions of his conversation with A.M. because they were unduly prejudicial or not against his penal interest.
The trial court held a hearing on the admissibility of Sailor's statements to A.M. The court stated it needed to determine whether portions of Sailor's statements constituted declarations against interest. The court told the parties it had watched portions of the video of Sailor's conversation with A.M., and it was unable to hear portions of the words spoken by Sailor that were contained on the transcript. The court noted the video depicted Sailor "mouthing words" and "that he was saying something I couldn't hear because I guess the microphone or whatever they did to record it was not done in a very effective manner." The court indicated it would hear testimony from A.M. prior to trial and determine whether Sailor made the statements attributed to him and whether those statements constituted declarations against interest.
The court subsequently held an Evidence Code section 402 hearing regarding the admissibility of Sailor's statements to A.M. During the hearing, A.M. testified Sailor told him Reyes had shot at Horta first and then "all three of us let him have it." Sailor lowered his voice when he made the statement "all three of us let him have it." A.M. responded, "All three of you got down?" A.M. had watched the recording of the conversation and reviewed a draft version of the transcript of the recording three days prior to the hearing. A.M. made changes to the draft of the transcript based on what was said during his conversation with Sailor.
A review of the video shows Sailor nodded in response to A.M.'s question.
The trial court found Sailor's statements that Reyes had fired first and "all three of us let him have it" to be trustworthy, and it found the statements to be declarations against penal interest that were admissible against appellants at trial.
Prior to A.M.'s testimony, Sailor's defense counsel objected to the use of the transcript of A.M.'s conversation with Sailor, stating A.M. had altered a prior version of the transcript and that it "goes into more than what you can just hear by listening to the tape." The prosecutor explained that he had A.M. listen to the recording with headphones "that were much, much better than listening to our computer," and that the prosecutor also listened using those same headphones, and "[t]hat's how this transcript was created. It wasn't based on memory, it was based upon hearing the words." The prosecutor told the trial court, "I have listened with very good earphones and everything that is in there I can hear." The court overruled Sailor's objection, noting the changes to the transcript were based on what A.M. had been able to hear on the tape, and the issue went to the weight of the evidence rather than the admissibility of Sailor's alleged statement. The court told appellants' counsel, "if you believe it says something else, you're allowed to bring that out in any way you want."
Defense counsel for Martinez objected to the introduction of Sailor's statements against him on confrontation grounds, and the trial court overruled the objection.
During A.M.'s testimony at trial, before the prosecutor played the video of A.M.'s conversation with Sailor for the jury, jurors were provided with transcripts to assist them in following along with the video and instructed that the video itself was the evidence and the transcript was not.
A.M. subsequently testified that prior to trial he watched the video while wearing headphones, which allowed him to hear the conversation better. During certain points of the conversation, Sailor had been whispering, and at other times he had moved further away from A.M., who was wearing a recording device on his person. The prosecutor had provided A.M. with a transcript that stated certain portions of the conversation were inaudible. A.M. was able to hear portions of his conversation with Sailor on the tape, and he filled in those portions accordingly. One of the statements A.M. heard Sailor make was "all three of us let him have it." A.M. also recalled that Sailor had made that statement during their conversation.
The transcript provides Sailor told A.M. he asked Horta "where you from," and then "[a]ll three of us. All three of us let him have it." A.M. responded, "All three of you guys got down? He said, he said, I thought it was just two of you [unintelligible]."
Following the evidentiary portion of the trial, the trial court instructed the jury regarding Sailor's statements to A.M. as follows: "You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part. [¶] Evidence of an oral confession or an oral admission of the defendant not contained in an audio or video recording and not made in court should be viewed with caution."
3.2 The trial court's admission of Sailor's statements to A.M. did not violate state law or federal due process
In California, hearsay evidence is inadmissible unless subject to an exception to the hearsay rule. (Evid. Code, § 1200; People v. Landau (2016) 246 Cal.App.4th 850, 867.) One such exception is contained in Evidence Code section 1230, which provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." "The proponent of such evidence must show 'that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.'" (People v. Lucas (1995) 12 Cal.4th 415, 462, internal citation omitted.)
"In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant. [Citation.]" (People v. Frierson (1991) 53 Cal.3d 730, 745.) "The trustworthiness of a statement against penal interest is the focus of the inquiry, and we rely on the trial court to apply its understanding of human nature in the circumstances presented . . . ." (People v. Butler (2009) 46 Cal.4th 847, 866.) We review a trial court's decision to admit declarations against penal interest for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153-154.)
Applying these principles, we conclude the trial court did not abuse its discretion in finding Sailor's statements sufficiently reliable to admit as declarations against interest. (See People v. Dalton (2019) 7 Cal.5th 166, 207-208 (Dalton) [trial court did not abuse its discretion in admitting defendant's statements to cellmate describing his act of killing victim as declaration against interest despite defense claim that defendant had merely been "bragging or puffing" because he "was in custody and wanted to be perceived as tough."].) We also reject appellants' argument that the court erred in admitting the statements because A.M. lacked credibility. Our Supreme Court has "'rejected the argument that "in considering the admissibility of evidence offered under Evidence Code section 1230 'the trial court could properly consider the credibility of the in-court witness,' and observed that "[n]either the hearsay rule nor its exceptions are concerned with the credibility of witnesses who testify directly to the jury."'" (Dalton, supra, 7 Cal.5th at p. 207, internal citation omitted.) The court did not err under state law or under federal due process.
3.3 The trial court's admission of Sailor's statements to A.M. did not violate the confrontation clause
We reject Reyes and Martinez's claim that the admission of Sailor's statements violated their federal constitutional right to confrontation. The Sixth Amendment guarantees a defendant's right to confront adverse witnesses. (Crawford v. Washington (2004) 541 U.S. 36, 38 (Crawford); People v. Harris (2013) 57 Cal.4th 804, 839.) "Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial." (People v. Geier (2007) 41 Cal.4th 555, 597.) If the statement is testimonial, then the confrontation clause precludes admission of the statement unless the witness is available for trial or, if unavailable, the accused has had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 53-54, 59.) If the statement is nontestimonial, then the confrontation clause does not apply, and the admissibility of the statement is governed by state law rules of evidence, including the hearsay rule. (Peoplev. Byron (2009) 170 Cal.App.4th 657, 675.)
In Crawford, the United States Supreme Court described testimonial hearsay as "'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or . . . "statements that were made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial."'" (Crawford, supra, 541 U.S. at pp. 51-52, internal citations omitted, italics in original.) In order to be "testimonial" under Crawford, a statement must have been "given and taken primarily for the purpose [of] . . . establish[ing] or prov[ing] some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984 (Cage), italics added and omitted.)
Here, we conclude the challenged statements were nontestimonial and therefore did not violate appellants' rights under the confrontation clause. The conversation between Sailor and A.M. possessed none of the formalities associated with sworn testimony, and Sailor did not know he was being recorded or that his statements would be used in a subsequent trial. (Cage, supra, 40 Cal.4th at p. 984; see also People v. Gallardo (2017) 18 Cal.App.5th 51, 67-68 [defendant's recorded statements to informants posing as gang members in the same jail cell as defendant did not violate codefendant's right to confrontation; statements were nontestimonial because, regardless of informant's intent in asking the question, there was no evidence defendant knew or suspected the informant was a government agent or that his comments might be used at trial].)
3.4 The trial court did not abuse its discretion or violate due process when it allowed the prosecution to provide the jury with a transcript of Sailor's recorded conversation with A.M.
We also reject the contention that the trial court erred by allowing the prosecution to provide the jury with a transcript of Sailor's recorded conversation with A.M. An audio recording may be admissible even if substantial portions are unintelligible so long as the tape is intelligible enough and relevant to issues in the case. (See People v. Siripongs (1988) 45 Cal.3d 548, 574.) A transcript may be provided to the jury as long as it is "sufficiently accurate in material respects." (See People v. Polk (1996) 47 Cal.App.4th 944, 955 (Polk).) A transcript of a recording is only prejudicial when it is so inaccurate that the jury might be misled into convicting an innocent person. (Ibid.) We review for abuse of discretion a trial court's decision to admit a transcript of a recording. (Id. at p. 953.)
We find no abuse of discretion. The trial court instructed the jury the recording itself was the actual evidence in the case, and the transcript was not evidence, but simply an aid to assist them in understanding the tape. Furthermore, even if it is not clear what Sailor's exact words were about the three co-appellants, a review of the video shows A.M., after hearing what Sailor said to him about the three of them, said to Sailor: "all three of you got down?", and Sailor nodded in response to the question. It is thus clear from the context of the conversation that Sailor made a statement to that effect. The recording as a whole establishes the transcript was sufficiently accurate in material respects and the trial court did not abuse its discretion. (Polk, supra, 47 Cal.App.4th at p. 955.) The court did not err under state law or violate due process by allowing the transcript.
4. The trial court did not abuse its discretion by admitting Sailor's statement to A.M. that he would accept a sentence of 25 years to life for the murder of Horta
Sailor argues the trial court abused its discretion under Evidence Code section 352 and violated due process when it declined to exclude his statement to A.M. that he would accept a sentence of 25 years to life if it were offered to him. We reject this contention.
Before trial, Sailor objected to the admission of this statement under Evidence Code section 352. The trial court initially expressed concerns over the admission of the statement because there could be many reasons someone might take an offer, and because the statement put "before the jury the punishment involved" in the case." At a subsequent hearing, however, the court stated it had reconsidered the issue and would allow the prosecutor to introduce the statement to the jury. The court explained it was comfortable admitting the statement because it was not said in the context of a plea negotiation, but rather to a third party. The court instructed the jury not to discuss or consider penalty or punishment in its deliberations.
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 . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court's decision whether to exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437.) Our review of the record shows the trial court carefully and thoughtfully considered Sailor's motion. Sailor's statement was highly relevant because it was an implied admission of guilt. The court was well within its discretion to conclude the statement's probative value warranted its admission. We find no error under state law or federal due process.
Even assuming error, we would find no prejudice for the reasons discussed in Part C of Section 2, supra.
5. Substantial evidence supports Reyes's robbery conviction
Reyes argues the record does not contain substantial evidence to prove his identity as one of the individuals who robbed Ruiz. We reject this contention.
In reviewing a judgment for sufficiency of the evidence, a court must review the record in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is evidence that is "'reasonable in nature, credible, and of solid value.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, internal citation omitted.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim, we "presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) Because we must draw all inferences in support of the judgment, a defendant bears an "'enormous burden'" when challenging the sufficiency of the evidence. (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) In reviewing a sufficiency claim, we accord due deference to the jury and do not substitute our own evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
The record contains substantial evidence of Reyes's identity as one of the individuals who robbed Ruiz. Two days after the robbery occurred, Ruiz identified Reyes from a photographic array as the individual who took his stereo from his car while Martinez held him at gunpoint. Ruiz circled Reyes's photograph and wrote "suspect 4 took my radio while I was being robbed by his partner." Ruiz did not express any uncertainty at the time he identified Reyes. Ruiz testified at trial that he had identified Reyes in the photographic array because he recognized him as the individual who took his stereo while Martinez held him at gunpoint.
A few hours after the robbery occurred, Ruiz's stereo was discovered inside the van from which Reyes had fled after the murder of Horta and the subsequent pursuant. Martinez was in possession of Ruiz's driver's license at the time of his arrest.
Ruiz's pretrial identification of Reyes as the individual who took his car stereo while Martinez held him at gunpoint, together with the discovery of Ruiz's stereo inside the van from which Reyes fled a few hours later, was sufficient to support the jury's finding that Reyes was one of the men who had committed the robbery of Ruiz.
Reyes relies on Ruiz's failure to identify him as one of the assailants at trial, and on Ruiz's trial testimony that he had made the pretrial identification from the photographic array based on Reyes's haircut, to suggest the evidence was insufficient to support the jury's finding as to his identity as one of the robbers. But the record suggests Ruiz's failure to identify Reyes at trial and his attempt to undermine the accuracy of his pretrial identification of Reyes were the product of his fear of appellants and his desire not to testify against them. The jury was free to believe Ruiz was not credible when he testified at trial, and to credit his pretrial identification of Reyes as accurate. (People v. Cuevas (1995) 12 Cal.4th 252, 276-277.) It is not our role to reweigh the jury's credibility determinations. (Ochoa, supra, 6 Cal.4th at p. 1206.) Substantial evidence supports Reyes's robbery conviction.
6. Substantial evidence supports Sailor's murder conviction
Sailor argues substantial evidence does not support the jury's finding that he premediated and deliberated the murder of Horta. Applying the above-stated legal principles regarding substantial evidence, we reject his contention.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) First degree murder includes any unlawful and intentional killing that was "willful, deliberate and premeditated." (§ 189.) A murder is premeditated and deliberate "if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 543.) "'Premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'" (People v. Mayfield (1997) 14 Cal.4th 668, 767, internal citations omitted, disapproved on another ground in Scott, supra, (2015) 61 Cal.4th at p. 390, fn. 2.) "The process of premeditation and deliberation does not require any extended period of time." (Mayfield, supra, 14 Cal.4th at p. 767.) "'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .'" (Ibid., internal citations omitted.)
A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported: preexisting motive, planning activity, and manner of killing. (See Stitely, supra, 35 Cal.4th at p. 543.) However, these factors "are not exclusive, nor are they invariably determinative" (People v. Combs (2004) 34 Cal.4th 821, 850), and they "need not be present in any particular combination to find substantial evidence of premeditation and deliberation" (Stitely, supra, 35 Cal.4th at p. 543.)
Ample evidence supports the jury's determination Sailor acted deliberately and with premeditation in killing Horta. Sailor had a preexisting motive to kill Horta, a rival gang member. A few days before the murder, Sailor drove slowly past Horta's house and stared at Horta's family members. A few days later, appellants armed themselves and drove through the area where Horta lived. When Sailor saw Horta on the street, he stopped the van he was driving and appellants shot Horta repeatedly. Sailor subsequently told A.M. the shooting had resulted from animus between the 18th Street and Temple Street gangs, that he had gone looking for Temple Street gang members prior to the shooting of Horta, and that all three appellants had shot Horta. The record overwhelmingly establishes substantial evidence supports the jury's finding that Sailor premeditated and deliberated the murder of Horta.
7. Substantial evidence supports the jury's true findings on the criminal street allegations
Appellants argue the gang enhancements must be reversed because the evidence was insufficient to establish the existence of a "criminal street gang" within the meaning of section 186.22, subdivision (f). Specifically, appellants claim they were members of different subsets of the 18th Street gang, the individuals who committed the predicate offenses were members of different subsets of the 18th Street gang from appellants' subsets, and the People failed to prove an associational or organizational nexus between the subsets sufficient to show the group was a single organization within the meaning of the statute. Appellants also allege the trial court abused its discretion when it allowed the People to reopen their case to present additional testimony from Officer Garcia relevant to the gang enhancement allegations after appellants' section 1118.1 motion and the trial court's expression of its belief that the evidence previously presented was insufficient to support those allegations. We reject these contentions. As discussed below, the trial court did not abuse its discretion by allowing the People to reopen and present additional testimony from Officer Garcia. Moreover, the evidence presented was sufficient to support the jury's true finding on the criminal street gang allegations.
7.1 The trial court did not abuse its discretion
After the close of evidence, appellants made motions for acquittal under section 1118.1. Sailor's defense counsel argued the evidence supporting the gang enhancement allegations was insufficient under People v. Prunty (2015) 62 Cal.4th 59 (Prunty), because the prosecution failed to prove the individuals who committed the predicate offenses were members of the same subset of the 18th Street gang as Sailor. The court stated it was going to reread the reporter's transcript of Officer Garcia's testimony to "see if I think this is enough." After reading the transcript of Officer Garcia's testimony, the court expressed its opinion that there was insufficient evidence under Prunty to link appellants' subsets and the subsets of the people who had committed the predicate crimes. The court allowed the prosecution to recall its gang witness to adduce additional evidence connecting the different subsets and explaining their connection to the 18th Street gang. After the prosecution recalled Officer Garcia, followed by Sailor recalling his gang expert, appellants renewed their section 1118.1 motion regarding the gang allegations, and the trial court denied the motion.
The trial court did not abuse its discretion by allowing the prosecution to recall Officer Garcia. Section 1093, subdivision (d), provides a trial court "for good reason, in furtherance of justice," may permit a party to reopen and present additional evidence at any time during the proceedings. A trial court "always has discretion to allow the prosecution to reopen after a section [1118.1] motion so long as the court is convinced that the failure to present evidence on the issue was a result of 'inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant].'" (People v. Goss (1992) 7 Cal.App.4th 702, 708, internal citation omitted.) We review for abuse of discretion a trial court's decision to allow a prosecutor to reopen following a defendant's 1118.1 motion. (People v. Riley (2010) 185 Cal.App.4th 754, 764, 767.) "The purpose of section 1118.1 is to provide a procedure by which a defendant may promptly terminate a fatally deficient prosecution, not to provide the defendant with a tactical trap when the prosecution inadvertently fails to present evidence in its possession." (Id. at p. 766.) Appellants do not argue — and we see no evidence in the record — suggesting the prosecution's failure to present evidence was a result of anything other than inadvertence. (See id. at pp. 764-765.) Accordingly, we find no abuse of discretion.
7.2 Substantial evidence supports the jury's true finding on the gang enhancement allegations
Section 186.22, subdivision (f), provides: "As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." Our Supreme Court has explained in order to prove "a criminal street gang exists in accordance with these statutory provisions, the prosecution must demonstrate that the gang satisfies the separate elements of [the statute's] definition and that the defendant sought to benefit that particular gang when committing the underlying felony." (Prunty, supra, 62 Cal.4th at p. 67.)
In Prunty, the Supreme Court held that where the prosecution's case positing the existence of a single criminal street gang "turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) The required associational connection may be established by evidence "showing collaboration among subset members, longterm relationships among members of different subsets, use of the same 'turf,' [or] behavior demonstrating a shared identity with one another or with a larger organization." (Id. at p. 73.) The associational connection may also be established by "a degree of physical togetherness or the engagement in common activities." (Id. at p. 75.) The evidence "must permit the jury to infer a relationship among the group's members." (Id. at p. 76.) Evidence that members of the different subsets have worked in concert to commit a crime is sufficient to satisfy the existence of a criminal street gang within the meaning of section 186.22, subdivision (f). (Id. at p. 78.) Evidence that shows "subset members have communicated, worked together, or share a relationship (however formal or informal) will permit the jury to infer that the subsets should be treated as a single [group]." (Id. at pp. 78-79.)
Here, the prosecution's theory was that appellants acted for the benefit of the 18th Street gang. The People established the 18th Street gang had 3,000 members, used a common sign or symbol, met the primary activities element of the statute, and collectively engaged in a pattern of criminal gang activity. Officer Garcia, the People's gang expert, testified 18th Street gang members who belong to different subsets considered themselves to be members of a single gang—18th Street—and members of different subsets regularly committed crime together and operated with impunity in each other's territory. The evidence pertaining to Morales's predicate offense showed 18th Street gang members from different subsets worked together to commit crimes. Officer Garcia explained members of various subsets of the 18th Street gang all used the symbol letter "E" or the number "18" to show allegiance to the 18th Street gang as a whole. Appellants each had "18" tattooed on their bodies. In sum, the evidence presented at trial sufficiently established an associational connection between appellants as 18th Street gang members. (Prunty, supra, 62 Cal.4th at pp. 71-79.)
Because the evidence sufficiently established 18th Street constituted a single criminal organization within the meaning of section 186.22, subdivision (f), and because the prosecution's overarching theory was that the current and predicate offenses were both committed for the benefit of 18th Street, not any 18th Street cliques, we reject appellants' claim that the prosecution needed to establish an associational link between the cliques involved in the predicate offenses and any other cliques. (Prunty, supra, 62 Cal.4th at p. 80 ["when a defendant commits a crime to benefit a particular gang subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, there will be no need to link together the activities of various alleged cliques . . . ."].) However, even assuming for the sake of argument the prosecution was required to establish an additional associational link between the cliques of the individuals who committed the predicate offenses and the umbrella 18th Street gang, the prosecution clearly did so when examining Officer Garcia about the predicate offenses. Substantial evidence supports the jury's true findings on the gang enhancements.
8. The prosecution did not commit misconduct during closing argument
Sailor contends the prosecutor committed misconduct during closing argument by misstating the evidence concerning the manner in which the shooting occurred and misrepresenting the burden of proof. Martinez and Reyes join the claim. In the alternative, appellants argue reversal is required because trial counsel was prejudicially ineffective for failing to object to the prosecutor's remarks. We reject both arguments for the same reason - the prosecutor did not commit misconduct. Even assuming prosecutorial misconduct, appellants have failed to demonstrate prejudice.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales), internal citation omitted.) During closing argument, "a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom." (Ibid.)
8.1 The prosecutor did not misstate the evidence
Appellants first argue the prosecutor engaged in misconduct by misstating the evidence when arguing the evidence supported the conclusion that Sailor personally fired the weapon or that a handoff of guns occurred. We disagree. Sailor told A.M. all three appellants shot Horta. The ballistics evidence showed both .22-caliber and .38-caliber bullets were used during the shooting, and the People's firearm examiner could not exclude the possibility that more than one .38-caliber weapon had been used. Assuming appellants only used two firearms during the shooting, there was a pause of seconds between two groupings of shots during which one of the weapons could have been passed between appellants. In light of this evidence, it was proper for the prosecution to suggest Sailor fired a weapon at Horta and that a weapon handoff may have occurred. (See Morales, supra, 25 Cal.4th at p. 44.)
8.2 The prosecutor did not misrepresent the burden of proof
"[T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California (1965) 380 U.S. 609, 615.) The prosecutor's argument cannot refer to the absence of evidence that only the defendant's testimony could provide. (People v. Carter (2005) 36 Cal.4th 1215, 1266.) This rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses. (People v. Lewis (2009) 46 Cal.4th 1255, 1304 (Lewis).)
The prosecutor's rebuttal argument about the cellular telephones was merely a comment on the failure of the defense to introduce material evidence. Had appellants believed the cellular telephones found in the van at the conclusion of the pursuit contained evidence that would have exonerated them, they were free to introduce that evidence at trial. The prosecutor was entitled to comment upon appellants' failure to do so, especially because Sailor's defense counsel argued the People had not met their burden of proof due to the absence of this evidence. (Lewis, supra, 46 Cal.4th at p. 1304.) We find no Griffin error.
8.3 Prejudice
Even assuming error or ineffective assistance of counsel, we would find no prejudice because, as explained in Part C of Section 2 above, the evidence of guilt presented against appellants was overwhelmingly strong.
9. There was no cumulative error
Appellants contend their convictions must be reversed because the cumulative effect of all the errors alleged resulted in a deprivation of due process. Because we find no individual errors, it follows logically that there was no cumulative error.
10.The trial court did not abuse its discretion by denying Sailor and Martinez's motion to strike firearm enhancements in furtherance of justice
We reject Sailor and Martinez's argument that the trial court abused its discretion by denying their request to strike the firearm enhancements imposed under section 12022.53, subdivision (d).
10.1 Applicable Legal Principles
Before January 1, 2018, trial courts had no authority to strike section 12022.53, firearm enhancements. (See former § 12022.53, subd. (h).) That changed when Senate Bill No. 620 went into effect on January 1, 2018. (Stats. 2017, ch. 682, §§ 1-2; see People v. Robbins (2018) 19 Cal.App.5th 660, 678.) The measure removed the prohibition on striking the firearm enhancement and, in its place, added language allowing trial courts to strike firearm enhancements in the interest of justice under section 1385. (Stats. 2017, ch. 682, § 2.) The sentencing in this case occurred after Senate Bill No. 620 went into effect, and the trial court was aware of its new discretion when it imposed the firearm enhancements.
A trial court's power to dismiss under section 1385 may be exercised only in furtherance of justice, which mandates consideration of "'the constitutional rights of the defendant, and the interests of society represented by the People.'" (People v. Clancey (2013) 56 Cal.4th 562, 580, italics omitted.) The reason for dismissal must be "that which would motivate a reasonable judge." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531, internal citation omitted.) We review the trial court's ruling for abuse of discretion (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony)), and we do not reverse unless we conclude the court ruled in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316 (Jordan).)
10.2 Background -- Appellant Sailor
In asking that the firearm enhancements be stricken in the interest of justice, Sailor's attorney argued the evidence established Sailor was "the driver and did not open fire. He did not handle a gun. There was no evidence that tied him specifically to the use of a gun. And no jury ever found that he specifically discharged a gun." The trial court disputed this characterization of the record, noting Sailor had told A.M. all three appellants had shot and "there [was] some basis for considering him an actual shooter in this case." The prosecutor told the trial court "even if [Sailor] was not the shooter, that in and of itself does not mean that the gun allegation should be stricken," as there was "nothing to indicate it would be in the interest of justice" to strike the enhancement. The court denied Sailor's request, explaining striking the enhancement would not be in the interest of justice. In denying the request, the court pointed to the vulnerability of the victim, the fact that the victim was shot multiple times, the fact that there was no provoking factor other than the victim having belonged to a rival gang, and that the victim did nothing to cause himself to be shot.
10.3 Background -- Appellant Martinez
At the outset of Martinez's sentencing hearing, the trial court noted it had read and considered Martinez's "Statement of Case pursuant to Penal Code 1203.01(a); Youth Offender Parole Eligibility (Franklin) Statement," as well as his probation report, the People's sentencing memorandum, and the People's supplemental sentencing memorandum. In rejecting Martinez's request that the gun enhancement be stricken, the court noted Martinez's conduct involved great violence and great bodily harm; Horta was a vulnerable victim; Martinez had been armed during the commission of both offenses; the robbery indicated planning, sophistication and professionalism; Martinez had a prior criminal history of increasingly serious offenses; and his prior performance on probation was not satisfactory. The court denied the request based on a conclusion that it was not in the interest of justice to grant it.
10.4 Analysis
Upon review of the trial court's ruling, we conclude the court's analysis pertaining to both Sailor and Martinez was thoughtful and well-reasoned. We see nothing arbitrary or capricious about the court's decision, and we therefore find no abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374; Jordan, supra, 42 Cal.3d at p. 316.)
We reject Martinez's contention that the trial court did not adequately consider his youth or upbringing. The record shows the trial court considered Martinez's sentencing pleadings, which set forth factors relating to his youth and upbringing in lengthy detail. We also reject Martinez's assertion that the gun enhancement will have the effect of rendering him ineligible for parole for 50 years. Because Martinez was 20 years old at the time of the offenses, received 25 years to life as his longest term, and does not fall into any of the exceptions to early parole eligibility (see § 3051, subd. (h)), he "shall be eligible for release on parole at a youth offender parole hearing during [his] 25th year of incarceration . . . ." (§ 3051, subd. (b)(3).)
11.Reyes's challenge to the firearm enhancement
Reyes argues his firearm enhancement should be stricken because substantial evidence does not support the jury's finding that he personally used a firearm during the murder of Horta. The Attorney General correctly points out Reyes's firearm enhancement was not based on an allegation or finding by the jury that he personally used a firearm, but rather that a principal used a firearm. The Attorney General thus argues we should reject Reyes's argument because its premise is inaccurate.
Reyes, in his reply brief, concedes he erred in characterizing the firearm enhancement as being for personal use, but argues the matter should be remanded for resentencing because trial court abused its discretion in imposing the enhancement. By failing to properly raise the argument in his Opening Brief, effectively depriving the Attorney General of the opportunity to directly and thoroughly respond, Reyes has forfeited the argument on appeal. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 ["'Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive a respondent of an opportunity to counter the argument.'" Internal citation omitted.].)
However, even assuming Reyes had not forfeited the argument, we would still find no abuse of discretion. The trial court did not, as Reyes suggests in his Reply Brief, deny the motion to strike the gun enhancement solely because "some evidence" showed all three defendants shot Huerta. Rather, the court properly denied the motion based on a conclusion that no mitigating circumstances supported the striking of the enhancement, it would not be in the interest of justice to do so, and some evidence suggested Reyes in fact had a gun during the commission of the murder. The court did not abuse its discretion. 12.Reyes's Franklin argument
The court, in denying Sailor's motion, also listed the following reasons for not striking the gun enhancement, all of which apply to Reyes: "[A]s the People have pointed out, it is not in the interest of justice. This is not a situation, given the . . . particular facts of this case, the vulnerability of the victim, the fact that the victim was shot multiple times, the fact that there was no provoking factor that the court was able to determine as to why this individual was shot, except that he might have belonged to an opposition gang, or appeared to belong to an opposition gang. There was just no reason. He did nothing to cause himself to be shot in this matter. [¶] For all these reasons, the court rejects and denies the defense request that the court exercise its discretion and strike the gun allegation . . . ."
Lastly, Reyes argues we should remand his case so the trial court can reconsider its denial of his request to strike the firearm enhancement in light of Franklin materials he provided after being sentenced. (People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) Reyes also argues equal protection mandates a remand because Sailor and Martinez were able to present Franklin materials prior to the sentencing hearing but he was not. Alternatively, Reyes argues that assuming we reject his argument, concluding he was allowed ample opportunity to present Franklin materials but failed to do so, we should still remand because trial counsel was ineffective in failing to present Franklin materials prior to the sentencing hearing. We reject his contentions.
12.1 Procedural background
The jury convicted appellants on November 10, 2016. That same day, the trial court set the matter for sentencing on February 7, 2017. Reyes subsequently obtained four continuances of his sentencing hearing based on his desire to present Franklin materials to the trial court for use at a future youth-offender parole hearing. On July 12, 2017, Reyes obtained a continuance based on defense counsel's representation that the expert preparing a Franklin report was still waiting for records from the school district, the welfare department, and for a copy of an evaluation of Reyes conducted in a juvenile detention center. The court set the matter for October 31, 2017, and told Reyes's attorney it would not grant any further continuances of the sentencing hearing. On October 31, 2018, the trial court continued Reyes's sentencing hearing until January 4, 2018.
Reyes's sentencing hearing occurred on January 4, 2018. Reyes's attorney had not yet submitted the Franklin report, and he asked the trial court for "additional time to prepare the sentencing memorandum." The court asked why defense counsel had taken so much time without filing any materials, and defense counsel explained he had not yet received any report. The court denied the request. In denying the request, the court explained that the matter had been put over for 14 or 15 months and that Franklin does not say defendants have an unlimited amount of time to file their materials prior to being sentenced. The court refused to delay sentencing any longer, but told Reyes's counsel he would forward any Franklin materials filed after sentencing to the youth parole offender board.
Reyes asked the trial court to strike the gun enhancement in furtherance of justice. The court denied the request, explaining it would not be in the interest of justice to do so, there were no mitigating factors, and the evidence suggested Reyes used a gun in the commission of the crime.
As mentioned above in Argument 11, the court, in denying Sailor's motion, also listed the following reasons for not striking the gun enhancement, all of which apply to Reyes: "[A]s the People have pointed out, it is not in the interest of justice. This is not a situation, given the . . . particular facts of this case, the vulnerability of the victim, the fact that the victim was shot multiple times, the fact that there was no provoking factor that the court was able to determine as to why this individual was shot, except that he might have belonged to an opposition gang, or appeared to belong to an opposition gang. There was just no reason. He did nothing to cause himself to be shot in this matter. [¶] For all these reasons, the court rejects and denies the defense request that the court exercise its discretion and strike the gun allegation . . . ."
The court ordered Reyes's attorney to file the Franklin report by April 4, 2018. On April 4, 2018, Reyes filed a Franklin report, prepared by a psychologist. On September 7, 2018, we granted Reyes's request that the record be augmented to include his Franklin report.
12.2 Franklin and its progeny do not entitle Reyes to a remand
Under California law, certain offenders age 25 or under at the time of their offenses who have been sentenced to indeterminate terms of imprisonment are entitled to present evidence of youth-related mitigating circumstances to the trial court for use at a future youth-offender parole hearing under section 3051. (§ 3051, subds. (a)(1), (b)(3); Franklin, supra, 63 Cal.4th at pp. 283-284.) The purpose of such evidence is to allow a defendant to make an accurate record for a later youth offender parole hearing, but when such evidence is presented after trial, the defendant's sentences "remain valid." (See id. at pp. 269, 284.) Franklin proceedings involve "the remedy of evidence preservation" (In re Cook (2019) 7 Cal.5th 439, 446-447), and are "unrelated to the validity of the defendant's sentence." (Id. at p. 451; see also People v. Rodriguez (2018) 4 Cal.5th 1123, 1126 [purpose of Franklin proceeding is to "facilitate proper discharge of the Board of Parole Hearings' obligations under" sections 3051 and 4801].)
This case is different from Franklin because Reyes, unlike Franklin, was afforded the opportunity to present materials to be used at his youth offender parole hearing. The court gave Reyes's attorney 14 months to submit Franklin materials, and Reyes's attorney eventually did submit the report on April 4, 2018. The purpose of a Franklin report is for use at a future youth offender parole hearing, not for the purpose of sentencing. (Franklin, supra, 63 Cal.4th at pp. 283-284.) Furthermore, although Reyes's attorney did not submit the report during the 14 months between Reyes's conviction and sentencing, nothing prevented him from presenting evidence in a sentencing memorandum or at the sentencing hearing concerning Reyes's youth, upbringing, social history, or any other mitigating evidence. We reject Reyes's contention that he is entitled to a remand for the court to consider whether to strike the firearm enhancement in light of his Fraklin materials.
12.3 Reyes was not deprived of equal protection
We reject Reyes's contention that he was deprived equal protection because Sailor and Martinez were allowed to present Franklin materials prior to sentencing but he was not. To succeed on an equal protection claim, Reyes must show the state "has a classification that affects two or more similarly situated groups in an unequal manner. [Citations.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) "'The concept of equal protection of the laws means simply "that persons similarly situated with respect to the legitimate purpose of the law receive like treatment."'" (Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1851.) Applying these principles, we find no equal protection violation. Reyes, Sailor, and Martinez were all allowed the same opportunity to present Franklin materials prior to their sentencing hearings. Sailor and Martinez availed themselves of that opportunity and Reyes did not. Reyes was ultimately allowed to present Franklin materials after being sentenced, and those materials can be used at his youth offender parole hearing.
12.4 Reyes's ineffective assistance of counsel claim
Alternatively, Reyes argues his trial counsel was ineffective by failing to present the Franklin report to the trial court prior to his sentencing hearing. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Assuming a defendant can satisfy this first prong, the defendant must then show prejudice. (Id. at pp. 691-692.) In order to show prejudice, the defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
We need not decide whether Reyes's attorney's conduct fell below an objective standard of reasonableness because, even assuming it did, we see no prejudice. The trial court was aware of Reyes's youth, as well as the youth of Sailor and Martinez. Our review of the record indicates the court had no intention of striking the gun enhancements as to any of the defendants because the court was so thoroughly troubled by the circumstances surrounding Horta's murder.
13.Abstract of judgment
Martinez's abstract of judgment states the trial court imposed a 10-year gang enhancement on count two pursuant to section 186.22, subdivision (b)(1)(C). The jury, however, found this gang allegation not true. A review of the reporter's transcript shows the trial court did not impose the section 186.22 enhancement listed in the abstract of judgment, but rather gave him a 10-year gun enhancement on count two pursuant to section 12022.53, subdivision (b) based on an allegation the jury found true. We are authorized to order correction of an abstract of judgment that does not accurately reflect the sentence imposed orally by the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We order the abstract corrected to remove the section 186.22 enhancement and replace it with the section 12022.53 enhancement.
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of judgment consistent with this decision, then deliver copies of the corrected abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. WE CONCUR:
WILLHITE, Acting P. J.
COLLINS, J.