Opinion
C069228
08-28-2017
THE PEOPLE, Plaintiff and Respondent, v. LOUIS ESTRADA VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08F03494)
Defendant Louis Estrada Vasquez appeals from multiple assault convictions and the jury's finding two of his assaults were for the benefit of a street gang. He contends (1) the gang expert's testimony was based on testimonial hearsay and was insufficient to support the gang enhancement; (2) the trial court erred by denying his motion to bifurcate trial of the gang enhancement; (3) the court erred by admitting evidence of an unduly suggestive field showup; (4) the court erred by finding the prosecution used due diligence attempting to locate a missing witness; (5) ineffective assistance of counsel; and (6) cumulative error. We conclude insufficient evidence supports the gang enhancements, and we reverse and remand for resentencing. In all other respects, we affirm.
FACTS
April 28, 2008—mobile home park incident
Edgar Perez, a resident of a mobile home park, was on the roof of a mobile home when he heard his cousin below arguing with someone. By the time Perez got down to his cousin, the person was gone. Then the person returned with others, some on bikes and some on foot. One of them asked Perez if he was a "scrap," a derogatory term members of the Norteño gang use to describe members of their rival gang, the Sureños. Perez said no. Two of them started towards him, and he put his hand on the back of his pocket pretending to have something. They kept asking him if he "bang[ed]." Perez said he did not, and he turned around to show that his shirt was a working shirt. They asked to see his blue belt, but he showed them he was not wearing one.
Two maintenance employees from the mobile home park, Daniel Szasz and Daniel Raynor, came out of a workshop to see what was happening. They told the group to take the matter outside of the park. Someone told Szasz to shut up, and another hit him in the head from behind. The others charged him. He grabbed one of them, who was wearing red. That person spun around and went to the ground up against a cyclone fence. Szasz also went to the ground, and the others kicked him. As he tried to get on his knees, something large hit him across his back and knocked his false upper plate out of his mouth. When he got up, the group was gone.
As the group left, Perez heard one of them say, "[T]his is how we do it in South Sac." Another member of the group stated he represented Norteño.
At a field showup, Raynor identified defendant as one of the people in the group that attacked Szasz. At trial, defendant admitted he was the person wearing the red shirt who Szasz grabbed and who fell to the ground.
July 26, 2008—Cheers Sports Bar incident
Cheers Sports Bar is a South Natomas bar frequented by Norteño gang members. On the evening of July 25, 2008, and into the early morning hours of July 26, 2008, Jessica Calderon was at Cheers Sports Bar with her boyfriend Robert Amberson, from West Sacramento, and Amberson's friend Blake Luke.
Raul Delgado was at Cheers Sports Bar that night with his friend, Francois Williams, an African-American/Hispanic, and Williams's cousin, a tall African-American man.
Members of the Lujan family, Rae-Marie and her brothers Sonny and Mark, were at Cheers Sports Bar that night. The Lujans were there with Rick Farinias and Regina Castro.
Defendant was at Cheers Sports Bar that evening with Emmanuel Lima.
After Amberson walked into the bar with Calderon and Luke, a group of African-Americans approached him and they "had words." Amberson thought they "had problems" with him because there were "a lot" of them and they surrounded his table. One of the men asked him if there were going to be any problems. Later, Mark Lujan walked over to Amberson's table. He was acting "hyphy" and hyped up. Amberson shook Mark's hand after Mark said it was all good.
Farinias spoke with Luke at the bar, who was wearing a red T-shirt. They spoke about where they came from. Luke knew that question in that environment could be asking for the person's gang affiliation. Luke answered by saying he was from Broderick or "West Sac." He tried to get rude and act tough with Farinias.
Some of the guests recognized each other and made introductions to others. Delgado saw Farinias, someone he had known for a few years. Calderon saw Castro, with whom she used to work. Calderon introduced Castro to Amberson and Luke. Luke later danced with Castro. When he asked her to dance, he also asked Calderon to make sure the men she was with were not her boyfriends. Castro told Calderon the men were her cousins.
Everyone drank heavily, and many became drunk.
After last call, Luke walked out of the bar ahead of Amberson and Calderon, who walked out together after him. Defendant and Lima walked out behind Amberson and Calderon.
Walking into the parking lot, Calderon saw a group of cars with men standing outside them. She had seen some of the men inside the bar. The scene scared her; it looked like something was going to happen and the men were waiting for something.
Calderon noticed Luke and Castro had joined a group of Castro's cousins. She asked Amberson to check on Luke and make sure everything was all right. Some of the men by the cars walked toward Amberson and Calderon. Mark Lujan was one of them; he ran by Calderon and hit Lima, who was behind her. Another, a tall African-American man, hit Amberson hard, knocking him unconscious.
Meanwhile, an unknown man shoved Castro, she shoved him back, he shoved her again, and she fell. A fistfight broke out. Luke said something about Broderick. Rae-Marie Lujan thought she saw a man pull the slide back on a gun. She yelled, "He's got a gun," and she ducked.
Calderon ran towards her car, and then she heard gunshots. Castro heard the shots after she fell. Rae-Marie heard them after she ducked. Three people suffered gunshot wounds. Farinias, who ran away from the bar after hearing about four shots, was shot in his left thigh. Delgado suffered a minor injury to his left foot from a bullet ricocheting. Lima suffered injuries to his buttocks and torso.
Police stopped defendant driving a Lexus that had been seen dropping off a shooting victim at Sutter General Hospital in the early hours of July 26. Officers found under the driver's seat a semiautomatic handgun with the hammer pulled back. The gun's detachable magazine could hold 12 rounds. There were seven live rounds in the magazine and one in the chamber. The gun had been stolen. Officers also found blood on the car's front passenger door panel and handle, and the passenger seat.
Officers recovered four spent bullet casings from Cheers Sports Bar parking lot. The district attorney's criminalist concluded the casings were discharged from the gun found in the car defendant was driving.
Detective John Sample took Rae-Marie Lujan to a field showup three hours after the shooting. Rae-Marie did not show signs of intoxication at the time. She told Detective Sample defendant looked like the person who shot the gun during the fight. She was "94%" certain of her identification.
Detective Sample also testified on behalf of the prosecution as an expert witness on Hispanic gangs. He concluded defendant was an active Norteño gang member. Detective Sample based this conclusion in part on his review of police reports and on the records regarding the assault on Szasz at the mobile home park. Detective Sample named as other gang members Lima, Farinias, Delgado, Williams, Luke, and Amberson. Although Detective Sample could not determine whether or not Rae-Marie, Sonny, or Mark Lujan were gang members, their father Mark and brother Johnny were both Norteño gang members.
Detective Sample also concluded via a hypothetical that the Cheers Sports Bar shooting would benefit the Norteño criminal street gang. We discuss Detective Sample's testimony in detail below.
PROCEDURAL HISTORY
A consolidated information charged defendant with four counts as follows:
Count one: Assault likely to produce great bodily injury on Daniel Szasz (Pen. Code, § 245, former subd. (a)(1)) ; plus an allegation that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Subsequent undesignated section references are to the Penal Code.
At the time of the crimes and trials, section 245, subdivision (a)(1), prohibited assault by means of force likely to produce great bodily injury. (Stats. 2004, ch. 494, § 1.) Currently, subdivision (a)(4) of section 245 prohibits assault likely to produce great bodily injury. --------
Count two: Assault likely to produce great bodily injury on Daniel Raynor (§ 245, former subd. (a)(1)), plus an allegation that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Count three: Assault with a semiautomatic firearm on Raul Delgado (§ 245, subd. (b)), plus allegations the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); defendant personally used a semiautomatic firearm (§§ 12022.5, subds. (a), (d)); and defendant used a firearm within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a), to render the offense a serious felony under section 1192.7, subdivision (c)(8), and a violent felony under section 667.5, subdivision (c)(8).
Count four: Assault with a semiautomatic firearm on Ricky Farinias (§ 245, subd. (b)), plus allegations the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1); defendant personally used a semiautomatic firearm (§§ 12022.5, subds. (a), (d)); and defendant used a firearm within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a), to render the offense a serious felony under section 1192.7, subdivision (c)(8), and a violent felony under section 667.5, subdivision (c)(8).
The information also alleged that as to counts three and four, defendant had committed the crimes while released from custody within the meaning of section 12022.1.
On October 13, 2010, a jury convicted defendant on count one and found the gang allegation to be true. The jury acquitted defendant on count two, and deadlocked on counts three and four. The court declared a mistrial as to counts three and four. It sentenced defendant on count one to a prison term of four years: the low term of two years for the assault plus the low term of two years for the gang enhancement.
The second jury trial on counts three and four began on July 7, 2011. The jury convicted defendant on both counts and found all special allegations to be true.
The court recalled the sentence imposed on count one in the first trial and resentenced defendant to a state prison term of 29 years four months, calculated as follows: the midterm of six years on count four plus 10 years for the gang enhancement, four years for the firearm enhancement, and two years for the on-bail enhancement; one-third the midterm of two years on count three plus three years four months for the gang enhancement; and one-third the midterm of one year on count one plus one year for the gang enhancement.
DISCUSSION
I
Expert Testimony
Defendant attacks the admission of Detective Sample's expert testimony. He contends admitting the expert testimony (1) violated his Sixth Amendment confrontation right by relating testimonial hearsay as the basis for Detective Sample's opinions; and (2) was insufficient to establish the gang enhancements due to its failure to establish (a) an associational connection between defendant's Norteño subset and the subsets that committed the predicate offenses, and (b) an associational connection linking the subsets to the greater Norteño gang.
We conclude defendant suffered no Sixth Amendment violation. However, we agree the expert's testimony was insufficient to establish the gang enhancements, and we reverse and remand on that point.
A. Additional background
At trial, Detective Sample provided a brief history of the Norteño gang. In the 1960's, the Mexican Mafia gang predominated in California prisons. It victimized Hispanic inmates who were not affiliated with the gang. Those inmates formed their own gang, the Nuestra Familia. Both prison gangs organized street gangs. The Nuestra Familia has the Norteños, and the Mexican Mafia has the Sureños.
The street gangs identify themselves with certain colors and symbols. Norteños identify themselves with the color red. They reference themselves as north, Norteño, or Northerner. They also use the number 14, as the letter "N" is the 14th letter in the alphabet. Members may have tattoos with four dots and one dot as a representation of the number 14, or with the Roman numeral XIV. Norteños also use common hand signs. They will throw up four fingers and one finger, representing the number 14, or they may compose the letter "N" with their fingers.
In Detective Sample's experience, the Norteño gang's primary activities include homicide, assault with a deadly weapon, assault with a firearm, felon in possession of a firearm, and shooting into occupied dwellings or cars.
Detective Sample identified a number of subsets of the Norteño street gang in the Sacramento area. The subsets center on neighborhoods. Subsets in North Sacramento include Varrio Gardenland and Varrio Northgate. Varrio Franklin Boulevard is in South Sacramento. West Sacramento is home to Broderick, another Norteño subset. The subsets' primary allegiance is to the Norteño gang, which acts as an umbrella over all the subsets. Detective Sample said there are approximately 1,500 validated members of Norteño street gangs in Sacramento.
The Sureños are the Norteños' main rivalry in Sacramento. However, there are also internal rivalries and disputes between the various Norteño subsets. The gang crimes Detective Sample investigates more often than not involve Norteño on Norteño.
Detective Sample described two cases involving Norteños with which he was familiar to establish the predicate crimes required for imposing the gang enhancement. To obtain this information, he reviewed investigations of both crimes and spoke with investigators who handled the cases. He did not indicate he participated in the investigations.
The first case involved Cesar Bursiaga, a validated Oak Park Norteño. In 2005, after his cousin was killed by suspected Sureños, Bursiaga killed a person pumping gas at a North Sacramento gas station whom he believed was a Sureño. Bursiaga was convicted of first degree murder.
The second Norteño case with which Detective Sample was familiar involved John Almeda and Perry Trujillo, both validated West Nicks Norteño gang members. Driving in South Sacramento in 2006, they came across Angelo Savala, a validated Varrio Franklin Boulevard Norteño. Almeda had had problems in the past with Savala. They shot at Savala and injured him. Almeda was convicted of attempted murder and being a felon in possession of a firearm. Trujillo was convicted of attempted murder.
Detective Sample testified it was his opinion defendant was an active Norteño gang member. He based his opinion on police reports from five incidents involving defendant that documented gang-related criteria defendant met for validation. On each of the five occasions, defendant was in the company of another Norteño gang member. On four of the occasions, defendant was wearing some sort of red clothing commonly worn by Norteños. Several of his contacts with police, including the Cheers Sports Bar crime, were deemed gang related. Regarding the assault at the mobile home park, Detective Sample stated: "There was a secondary crime which he was involved in April of this same year 2008, which was deemed to be a gang related crime, a Norteño gang related crime."
In addition to relying on the above evidence, Detective Sample concluded defendant was a gang member because other people named defendant as someone who associated with the Norteño gang, and when defendant was incarcerated, he asked to be separated from Sureño gang members.
Detective Sample also relied upon and identified photos he recognized from defendant's cell phone. The photos depicted defendant wearing gang-related clothing and flashing gang signs, and gang-related graffiti and cartoons.
The prosecutor questioned Detective Sample about the mobile home park assault in some detail. She asked him if that crime formed the basis for his opinion that defendant was a Norteño. Detective Sample said it was one of the factors: "The facts of that crime show that that was a gang-related crime. It involved other Norteño gang members."
Detective Sample reviewed the report prepared by the Sacramento County Sheriff's Department on the mobile home park assault to learn about the incident. He stated, "In reading the report, three of the people who were arrested, including [defendant], are validated Norteños. . . . They were wearing gang-related clothing, that being some items of red clothing during the crime, and there was gang-related words that were yelled out by one of the defendants, yelling: Norte, Norte motherfuckers, Norte for life. They yelled it at the victims and also at the officers during their arrest."
Detective Sample stated someone other than defendant yelled the gang references, and that person was wearing the number 14 on his belt, a representation of the Norteño gang. The prosecutor asked, "So it was more than he just happened to have red shoes on or red clothing; is that correct?" Detective Sample responded, "There were quite a few factors that made that case to be gang-related. That was a felony assault that occurred."
Detective Sample addressed the more general topic of respect. Respect is important in the Norteño street gang. A well-respected gang member obtains higher status within the gang. He gains respect by committing acts of violence that cause fear and intimidation in others in order to bolster the gang's reputation for violence. A Norteño will also back up a fellow gang member to show his loyalty to the gang.
Detective Sample opined the assaults at the mobile home park benefited the Norteño street gang. During the attack, the assailants called out their Norteño gang set, letting everyone know who the attackers were. This all went to the Norteños' reputation.
Detective Sample also opined the shooting at Cheer Sports Bar benefited the Norteño street gang. It demonstrated Norteños are violent, enhancing the gang's reputation as such and increasing its respect through fear and intimidation.
B. Sixth Amendment
In his opening brief, defendant contended the trial court violated his right to confrontation under the Sixth Amendment when it allowed Detective Sample to relate testimonial hearsay as the basis for his opinions. Defendant argued the bases of Detective Sample's opinions—police reports and conversations not before the court—were testimonial hearsay under the rule of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and their admission violated his right to confrontation.
Defendant claimed the admission of Detective Sample's basis supporting his opinions was prejudicial error under Chapman v. California (1967) 386 U.S. 18 . The evidence showed defendant was a gang member, and it represented through the predicate acts that gang members were bad people. The testimony also provided a gang motive for defendant's firing the gun at Cheers Sports Bar if he was in fact the shooter, even though he did not announce a gang name or say anything to others while he was there.
Defendant acknowledged in his opening brief that under People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), an expert witness could describe inadmissible matter that formed the basis of his or her opinion, including hearsay. Nonetheless, defendant argued that in light of Crawford and its progeny, Gardeley could no longer stand.
After initial briefing was completed in this appeal, the California Supreme Court in another case agreed with defendant's argument. In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the high court overruled Gardeley to the extent it suggested an expert could testify to case-specific out-of-court statements as the basis of his opinion without satisfying state hearsay rules. The court ruled an expert witness may not relate as true and as the basis for his opinion "case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) In addition, the court ruled that "[i]f the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Ibid., original italics.)
We asked the parties to file supplemental briefs addressing whether Sanchez applied to this appeal. Defendant argues it does. In conjunction with the arguments in his opening brief, he claims the police reports and conversations on which Detective Sample relied to opine he was a gang member and to relate the two predicate crimes were testimonial hearsay and inadmissible under Sanchez. He contends the error admitting the evidence was prejudicial for the reasons argued in his opening brief, related above. He also argues admitting Detective Sample's testimony regarding the mobile home park assault was particularly prejudicial, as Detective Sample referred to the act as a felony assault.
The Attorney General, who relied on Gardeley in her respondent's brief to oppose defendant's Sixth Amendment argument, contends in her supplemental brief Sanchez does not apply. Preliminarily, she argues defendant forfeited his argument by not objecting to Detective Sample's testimony at trial on hearsay or confrontation clause grounds. On the merits, and as to defendant's arguments against the predicate offenses testimony, the Attorney General claims Detective Sample's testimony about the predicate offenses was admissible because those convictions were not facts related to defendant's case and thus were not case-specific hearsay. Even if the evidence of the predicate offenses was case-specific hearsay, the Attorney General argues its admission did not violate Sanchez because Detective Sample relied upon superior court records to prove those convictions and their facts, and a hearsay exception, Evidence Code section 452.5, subdivision (b), authorizes courts to admit superior court records into evidence to prove the predicate offenses. The Attorney General also contends these court records were not testimonial hearsay as they were not created primarily as an out-of-court substitute for trial testimony.
As to the admission of hearsay to support Detective Sample's opinion that defendant was a gang member, the Attorney General contends the error was harmless. Detective Sample's opinion was not based solely on police reports, but was also based on his personal investigation into the Cheers Sports Bar crime and on his viewing photographs on defendant's cell phone that he believed indicated defendant was a gang member. Moreover, as to the use of Detective Sample's testimony to establish the gang enhancement, it was not necessary to prove defendant was a gang member to establish the enhancement, only that the crime was committed for the benefit of a street gang. In addition, testimony by defendant's expert witness established the existence of the Varrio Franklin Boulevard street gang.
Initially, we conclude defendant did not forfeit this argument. An appellant may raise an issue on appeal despite failing to object at trial if the trial court considered and ruled on the issue as if an objection had been properly made. (People v. Abbott (1956) 47 Cal.2d 362, 372-373; People v. Frank (1985) 38 Cal.3d 711, 738 (conc. & dis. opn. of Bird, C. J.).) Defendant did not object to Detective Sample's testimony based on hearsay or the confrontation clause. However, the trial court addressed those objections anyway and overruled them. The court acknowledged the rule of Crawford, but it admitted Detective Sample's hearsay testimony into evidence under People v. Thomas (2005) 130 Cal.App.4th 1202, which relied on Gardeley, and People v. Ramirez (2007) 153 Cal.App.4th 1422, to conclude an expert's testimony of the basis of his opinions is not admitted for the truth of the matter, and thus a gang expert's basis testimony was not testimonial hearsay under Crawford. Because the trial court considered and ruled on the Crawford issue as if an objection had been made, appellate review is permitted.
We turn to review whether Detective Sample's recitation of facts underlying the two predicate offenses constituted testimonial hearsay. It did not. Under Sanchez, an expert is "precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted & added.) Neither of the two predicate convictions involved defendant. The evidence of those convictions is more akin to background information concerning the gang. (Ibid.) Accordingly, the underlying facts related by Detective Sample concerning those convictions are not "case-specific," and their admission did not run afoul of state hearsay rules or the Sixth Amendment. (Ibid.) (However, as explained below, their admission was insufficient to support the gang enhancements.)
Detective Sample's recitation of facts from police reports regarding defendant, including the investigation of the mobile home park assault, and from which he opined defendant was a gang member, constituted testimonial hearsay and should have been excluded. "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . ." (Sanchez, supra, 63 Cal.4th at p. 694.) There is no evidence these police reports were made in the context of an ongoing emergency.
The Attorney General nevertheless claims admitting this evidence was harmless beyond a reasonable doubt because Detective Sample would have concluded defendant was a gang member without having to rely on the police reports. We agree. Detective Sample personally investigated the Cheers Sports Bar incident and he viewed nonhearsay photographs found on defendant's cell phone from which he would have concluded defendant was a gang member.
Detective Sample testified his department relies on various criteria to conclude, or validate, a person belongs to a gang. The criteria include admitting gang membership, being named by other gang members as a gang member, gang-related tattoos, gang-related clothing, photos indicating gang affiliation, gang graffiti, cartoons that show gang affiliation, common hairstyles, prison or gang correspondence, and participation in gang activities that are not necessarily criminal in nature.
As part of investigating the Cheers Sports Bar crime, Detective Sample viewed photos found on defendant's cell phone that matched some of the criteria for validating gang membership. One photo depicted defendant wearing a ballistic bulletproof vest. That photo is time and date stamped the day before the day of the Cheers Sports Bar shooting. Another photo depicted a Sacramento Kings emblem in red with the words "Scrap Killa" written below the "SK" logo. As stated earlier, scrap is a derogatory term for a Sureño. A third photo showed a cartoon-like figure wearing all red with the letter "F" over its mouth outlined in red. The letter "F" was commonly associated with Varrio Franklin Boulevard.
A fourth photo depicted a group of people in red with the number "14" on the back of their shirts and the word "Norteños" written at the top. Other photos showed a number of people labeled with Norteño graffiti such as "Norteño," "Norte '04," "SK," or "Scrap Killa." These were common graffiti used by Norteño gang members. A fifth photo depicted the Golden Gate Bridge in red and a red star that is a tattoo commonly seen on Norteño gang members.
These photographs were sufficient evidence on which Detective Sample could conclude defendant was a gang member. We have no reasonable doubt Detective Sample, relying on this evidence and his experience with Norteño gangs in general, would have concluded defendant was a gang member even if he had not relied on police reports to reach that conclusion.
C. Sufficiency of the evidence to support gang enhancements
Defendant contends insufficient evidence supports the jury's finding that defendant committed his crimes for the benefit of a street gang. (§ 186.22, subd. (b)(1).) Relying on People v. Prunty (2015) 62 Cal.4th 59 (Prunty), defendant argues the prosecution, through Detective Sample's testimony of the predicate crimes, failed to prove an associational or organizational connection between the Norteño subset to which defendant belonged and the subsets that committed the predicate offenses Detective Sample introduced to establish the existence of the gang. He also argues Detective Sample's testimony failed to establish an associational or organizational connection linking the subsets to the greater Norteño gang. He contends the lack of evidence requires us to reverse the gang enhancement findings. We agree.
"Section 186.22, subdivision (b)(1), increases punishment for 'any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.'
" 'To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]' (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 [(Duran)]; see § 186.22, subd. (f) ([s]ection 186.22(f)).) 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]' (Duran, supra, 97 Cal.App.4th at p. 1457; see § 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10.)" (People v. Cornejo (2016) 3 Cal.App.5th 36, 47.)
The prosecution sought to establish that defendant was a member of the larger Norteño gang by means of his membership in the Varrio Franklin Norteño subset. This approach triggered additional burdens of proof. "[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) 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. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. In other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.
"Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). But it is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Prunty, supra, 62 Cal.4th at pp. 71-72, fns. omitted.)
Here, the prosecution did what the Supreme Court said was not permissible. It introduced evidence through Detective Sample of different subsets' conduct to establish the primary activities and predicate offense requirements, but it did not demonstrate that the subsets were connected to defendant's subset or to a larger Norteño group.
First, Detective Sample did not establish defendant's subset had an associational or organizational connection with the subsets responsible for the predicate offenses. Members of subsets other than defendant's committed the predicate offenses, and nothing in the record shows the subsets were somehow connected. The Prunty court's description of Detective Sample's testimony in that case on this point applies equally here: "Although Sample characterized these groups as Norteños, he otherwise provided no evidence that could connect these groups to one another . . . . Sample did not describe any evidence tending to show collaboration, association, direct contact, or any other sort of relationship among any of the subsets he described. None of his testimony indicated that any of the alleged subsets had shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets." (Prunty, supra, 62 Cal.4th at p. 82.)
Second, Detective Sample did not establish defendant's subset or the subsets involved in the predicate offenses had an associational or organizational connection with the larger Norteño gang and Nuestra Familia. "The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local subset has represented itself as an affiliate of what the prosecution asserts is a larger organization. [Citation.] Although evidence of self-identification with the larger organization may be relevant, the central question remains whether the groups in fact constitute the same 'criminal street gang.' " (Prunty, supra, 62 Cal.4th at p. 79, italics added.) Detective Sample provided evidence that defendant represented himself as a Norteño, and that his subset was considered a Norteño subset. However, he provided no facts establishing that connection. There is no factual evidence establishing a connection between Varrio Franklin Boulevard and the larger Norteño gang and Nuestra Familia.
"The prosecution must introduce evidence of the alleged subsets' activities, showing a shared identity that warrants treating them as a single group. Such evidence could come in the form of proof that a certain Norteño subset retaliates against a Sureño gang for affronts that gang has committed against other Norteño subsets. Behavior of this kind could suggest that members of the Norteño subset consider themselves to be part of a larger association. Or the prosecution could introduce evidence showing that different subsets require their members to perform the same initiation activities. Evidence of this common behavior may be some evidence that members identify themselves as belonging to the same gang. The key is for the prosecution to present evidence supporting a fact finder's reasonable conclusion that multiple subsets are acting as a single 'organization, association, or group.' (§ 186.22(f).) Evidence of self-identification must refer to the particular activities of subsets, and must permit the jury to reasonably conclude that the various subsets are associated with each other because of their shared connection with a certain group." (Prunty, supra, 62 Cal.4th at pp. 79-80.) No such factual evidence exists in this record.
The Attorney General relies upon testimony by the defendant's gang expert witness to bolster her argument, but to no avail. That expert, Trino Savala, also did not testify to any specific acts connecting Varrio Franklin Boulevard to other Norteño subsets or to the larger Norteño gang and Nuestra Familia. Savala stated the Nuestra Familia prison gang was a very organized and structured business, and that it had someone in each of the Norteño subsets. But he presented no facts from which the jury could infer that the subsets responsible for the predicate acts were connected to Varrio Franklin Boulevard, or that any of these subsets were connected to the Nuestra Familia.
We thus conclude insufficient evidence supports the gang enhancement findings, and they must be reversed and defendant resentenced.
II
Denial of Motion to Bifurcate Trial
In his second trial, defendant by in limine motion asked the court to bifurcate trial of the gang enhancement. The court denied the motion. Ruling under Evidence Code section 352, the court stated the expert testimony was permissible to explain rival subsets and was relevant to establishing a motive for firing a gun into a group of fighting people who are otherwise using only fists. Following trial, defendant moved for a new trial in part on the court's denial of his in limine motion. The trial court denied the new trial motion.
Defendant claims the trial court abused its discretion and committed a miscarriage of justice when it denied his in limine motion and his motion for new trial. He contends the prejudicial effect of the gang evidence greatly outweighed its probative value. He asserts there was no evidence he acted with a gang motive or that there was any rivalry between the gang members who were at the bar. In addition, he asserts the facts show the shooting was done in fear and panic, not for any gang motive. Indeed, defendant did not call out a gang name or say anything at all. He argues the gang evidence thus had little relevance to the case, and likely inflamed the jurors' opinions against him simply because the evidence suggested he was a gang member. We disagree with defendant's contention.
We review a trial court's denial of a motion to bifurcate trial of a gang enhancement for an abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Bifurcation of the gang enhancement raises issues similar to those a court considers when asked to bifurcate trial on a prior conviction, but not to the same extent. "A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]" (Ibid., original italics.)
The Hernandez court further explained: "This is not to say that a court should never bifurcate trial of the gang enhancement from trial of guilt. The authorization we found in [People] v. Calderon [(1994)] 9 Cal.4th 69, for bifurcation of a prior conviction allegation also permits bifurcation of the gang enhancement. The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt.
"In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. (See People v. Balderas (1985) 41 Cal.3d 144, 171-172 [discussing severance of charged offenses].)
"Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation. In the context of severing charged offenses, we have explained that 'additional factors favor joinder. Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.' (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) Accordingly, when the evidence sought to be severed relates to a charged offense, the 'burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citations.] When the offenses are joined for trial the defendant's guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.' (People v. Bean (1988) 46 Cal.3d 919, 938-939.)
"The analogy between bifurcation and severance is not perfect. Severance of charged offenses is a more inefficient use of judicial resources than bifurcation because severance requires selection of separate juries, and the severed charges would always have to be tried separately; a bifurcated trial is held before the same jury, and the gang enhancement would have to be tried only if the jury found the defendant guilty. But much of what we have said about severance is relevant here, and we conclude that the trial court's discretion to deny bifurcation of a charged gang enhancement is similarly broader than its discretion to admit gang evidence when the gang enhancement is not charged. (See People v. Balderas, supra, 41 Cal.3d at p. 173.)" (Hernandez, supra, 33 Cal.4th at pp. 1049-1050, original italics.)
Applying these standards, we conclude the trial court did not act arbitrarily or capriciously when it denied defendant's motion to bifurcate and his motion for new trial. The gang evidence and the evidence of defendant's gang membership were not unduly prejudicial under the circumstances and were relevant to establish defendant's motive. As a member of a Norteño gang, defendant would show loyalty to the gang and gain respect by backing up a fellow gang member. He also would increase others' respect of his gang by acting violently. Here, defendant witnessed Mark Lujan attack Lima, defendant's fellow gang member. With his gang member on the ground and the fight breaking out around him between members of other Norteño subsets—one participant actually said out loud the name of his gang during the fight—defendant was motivated to protect his friend and, at the same time, show the strength of his gang. He did this by firing a gun, injecting fear into those around him and stopping the chaos. The expert's testimony helped establish this reasonable theory of motive .
The gang evidence also placed the incident in context. The fight and shooting took place in a bar frequented by gang members. The incident involved only gang members or friends and family of gang members. The crimes all occurred in this gang environment, and the gang evidence was relevant and probative to the jurors' understanding of the case in its true context and their identification of the parties involved.
Some of the expert's testimony, such as the predicate acts used to establish the gang enhancement, would have been deferred to a bifurcated trial. But the efficiency of trying the enhancement with the substantive offenses was a viable factor supporting denying the motion where, as here, the probative value of the expert's testimony in a case that can be explained only in light of gang membership and behavior exceeded any unduly prejudicial impact that may have arisen.
Defendant contends People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), where the Court of Appeal determined the introduction of gang evidence violated due process, applies to this case. It does not. There, the defendant and another person shot at the victim's house while a birthday party was underway. (Id. at p. 217.) The defendant was a known gang member, and the experts testified at length about his gang membership, other gang members, and his gang's crimes. The defendant had a number of gang tattoos, including one referencing the Mexican Mafia. Witnesses testified the gang had threatened in graffiti to murder police officers. The experts stated the defendant would gain respect within the gang for the shooting because people attending the party were members of another gang. (Id. at pp. 220-221)
A jury convicted defendant of attempted murder and found the gang enhancement true. Defendant filed a motion for new trial, claiming insufficient evidence supported the gang enhancement findings. He also asked for a new trial on the underlying charges, arguing that absent the gang allegations, the gang evidence was irrelevant and overly prejudicial. The trial court granted the motion as to the gang enhancements but denied it as to the underlying charges. The gang allegations were dismissed, and defendant appealed. (Albarran, supra, 149 Cal.App.4th at p. 222.)
The prosecutor in Albarran argued the gang evidence established a motive for the shooting—gain respect and enhance the shooter's reputation. The Court of Appeal disagreed. It found nothing in the facts to suggest a specific gang motive. The defendant did not flash gang signs or announce his purpose or membership during the shooting. No gang members bragged about the shooting afterward. Although the victim was a member of a different gang, there was no evidence his gang had any rivalries. The only evidence to support the respect motive was the defendant's gang membership. (Albarran, supra, 149 Cal.App.4th at p. 227.)
Even if the defendant's gang membership and evidence of gang behavior were relevant to the issues of motive and intent, the Court of Appeal stated that other extremely inflammatory gang evidence was admitted that had no connection to the defendant's crimes and raised the potential of the jury convicting the defendant regardless of his actual guilt. The threats against police, the reference to the Mexican Mafia, and the descriptions of other crimes committed by other gang members functioned primarily to show the defendant's criminal disposition. (Albarran, supra, 149 Cal.App.4th at pp. 227-228.)
The Court of Appeal found the admission of this evidence prejudicial. It also found the trial court's denial of the new trial motion on the basis the evidence was admissible to prove motive and intent to be arbitrary and fundamentally unfair. Admitting the evidence denied the defendant his due process right to a fair trial. (Albarran, supra, 149 Cal.App.4th at pp. 230-232.)
Unlike the Albarran court, we see evidence in the facts of this case of gang motive. The crimes occurred at a bar frequented by Norteños. All of the parties involved were members of Norteño subsets or had family or friends who were members. Gang tensions surfaced immediately after Amberson and Luke, both affiliated with Broderick Norteños, entered the bar. A group of African-Americans asked Amberson if there were going to be problems. Mark Lujan acted hyped up around them until Amberson shook his hand. At the bar, Luke told Farinias he was from Broderick, a statement with a possible gang meaning. Luke even tried to get rude and act tough with Farinias. Luke then danced with Castro, who had been at the bar with a group of friends that included Farinias. During the fight, Luke said something about Broderick. Then Rae-Marie saw defendant raising a gun.
Until that moment, defendant had done nothing to indicate his gang affiliation. There was no evidence of a rivalry between his gang and the other gangs represented at the bar. No one saw him flash signs or heard him call out his gang. No one apparently knew him and Lima. But unlike in Albarran, the nonexpert evidence and the expert evidence disclosed the role and effect of gangs upon the entire chain of events to which defendant responded. The men from Broderick were known by others at the bar as such, and their presence and actions created a stir. The gang evidence was highly relevant to explain the context in which the chaos and defendant's actions occurred.
The evidence also was not unduly prejudicial. Here, all of the actors were connected to gangs, as either members, friends of members, or relatives of members. The evidence did not make defendant stand out amongst people who had no contact with gangs. The probative value of the evidence exceeded any possibility it could have led jurors to convict defendant merely because of his status.
Even if the trial court erred in not bifurcating the trial or granting a new trial, the error was harmless under federal constitutional or state standards of prejudicial error. Had the gang evidence not been admitted, it is beyond a reasonable doubt that defendant would have been convicted of the substantive offenses. The evidence against him was too strong. Defendant was at Cheers Sports Bar and in its parking lot at the time of the shooting. Police found the weapon that fired the shots in defendant's possession underneath his car seat after he dropped Lima off at the hospital a short time following the shooting. Rae-Marie Lujan identified defendant as the person she saw hold up a gun and fire. Defendant introduced no conflicting evidence. Thus, there is no basis to reverse because the trial was not bifurcated.
III
Field Showup Identification
Defendant contends the trial court violated his due process rights when it admitted evidence of Rae-Marie Lujan's identification of him at a field showup. It did not. There is no evidence the showup procedure was unduly suggestive or that the identification was unreliable under the totality of the circumstances.
A. Background
The Cheers Sports Bar shooting occurred around 1:35 a.m. Police detained defendant around 2:20 a.m. near a Costco store on Auburn Boulevard.
Rae-Marie Lujan went to the hospital to see Farinias, who had been shot. A police officer questioned her in the hospital parking lot. The officer told her to stay at the hospital but sent others home.
Detective Sample arrived and asked Rae-Marie if she would agree to do a field showup. She agreed. Rae-Marie did not appear intoxicated. She walked fine and did not slur her speech. Detective Sample was not mean to Rae-Marie, and he did not tell her what to say.
Detective Sample took Rae-Marie to the showup three hours after the shooting. He began recording the proceedings some 10 minutes after he and Rae-Marie left for the site, and the recording was played to the jury. He did not record any conversations while they were driving to the site, as another officer had already taken Rae-Marie's statement, and the recorder he was using could record for only three hours.
Detective Sample told Rae-Marie he was going to show her someone who may or may not have been the person who fired the shots at Cheers Sports Bar. He told her she had no obligation to identify anyone. He also told her not to be influenced by the fact that the man was with the police or in handcuffs. Those facts did not mean he was the shooter, and she was not to let them sway her judgment.
With Rae-Marie in the backseat, Detective Sample drove the car close to defendant. Rae-Marie said defendant "was one of the guys out there." Asked if defendant was the person who shot the gun, she said, "Oh my God, I'm so scared. He looks like the guy." She was "94%" sure defendant was one of the persons who was there. She was close to the shooter at the time and saw the gun: "I said hey, he gots a gun! We all ran. We all ran. But there was so many people right there. . . . He looks like the guy." "94 percent of me says that's the guy that was there."
Rae-Marie told Detective Sample she was four to five feet away from the gun at the time of the incident. She described the gun as dark, either black or brown. When shown the gun retrieved from defendant's car, she said it looked like the gun she had seen during the incident.
When Detective Sample asked Rae-Marie again who pulled out the gun during the fight, she said it was the person he had just shown her. As soon as she saw the gun, she ran.
At the first trial, Rae-Marie stated she understood Detective Sample's admonitions and warnings, and she tried her best to be truthful in making the identification and giving her statement. She also testified she saw the gun in the air but did not see who was holding it. She was intoxicated, nervous, scared, and intimidated. She said what she thought the officer wanted to hear.
The prosecution was unable to locate Rae-Marie for the second trial, and her testimony from the first trial was read into the record.
Defendant filed an in limine motion to suppress the field showup evidence, claiming it was unduly suggestive in violation of his due process rights. The trial court denied the motion. Defendant also raised the court's decision not to suppress the evidence as a ground for a new trial. The court denied that motion as well.
B. Analysis
"It is the likelihood of misidentification which violates a defendant's right to due process . . . . Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But . . . the admission of evidence of a showup without more does not violate due process." (Neil v. Biggers (1972) 409 U.S. 188, 198 [34 L.Ed.2d 401, 410-411].)
We review de novo the trial court's ruling on the constitutionality of an identification procedure and uphold the factual findings by the trial court if supported by substantial evidence. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Contreras (1993) 17 Cal.App.4th 813, 819.) A defendant challenging an identification procedure bears the burden of establishing (1) the procedure used is unduly suggestive and unnecessary, and, if so, (2) whether the identification by the witness is reliable under the totality of the circumstances, taking into account such factors as the witness's opportunity to view the perpetrator at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the suspects, the level of certainty the witness demonstrated at the showup, and the time between the crime and the showup. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The defendant must establish "unfairness as a demonstrable reality, not just speculation." (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) Our task is to determine whether there is a very substantial likelihood of irreparable misidentification under the totality of the circumstances to warrant reversal of the conviction. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 116 [53 L.Ed.2d 140, 147-149, 155]; People v. Cunningham (2001) 25 Cal.4th 926, 990.)
Defendant fails to establish the showup procedure was unduly suggestive or that the identification was unreliable under the totality of the circumstances. He claims the showup was unnecessary because it did not occur where he was arrested, the police were not going to release him, and Rae-Marie had been kept up all night intoxicated and exhausted in order to conduct the showup.
These arguments ignore the primary reason police conduct showups. " 'An in-the-field showup . . . is generally an informal confrontation involving only the police, the victim and the suspect. One of its principal functions is a prompt determination of whether the correct person has been apprehended. [Citation.] Such knowledge is of overriding importance to law enforcement, the public and the criminal suspect himself. [Citation.] . . . .' [¶] . . . [¶] It is well settled that 'weighing the respective individual and societal interests to be served,' the advantages of prompt identification or elimination of suspects through an in-field showup outweigh the potential prejudice of such a procedure to the suspect. [Citations.]" (People v. Rodriguez (1987) 196 Cal.App.3d 1041, 1049.)
Defendant contends the identification was not reliable for numerous reasons. He asserts Rae-Marie did not have a good opportunity during the fight to see him. She was distracted by seeing the gun and knowing family members were involved in the melee. She was drunk. She claimed to be 94 percent certain but wavered between being certain defendant was present and that he was the shooter. The incident occurred three hours after his arrest. She also had seen him in the bar before the fight, and may have confused him with another. Because her brother was involved in the fight, she had a motive to lie about who the shooter was. And she repudiated her identification at trial.
Defendant's arguments are speculation and do not establish unfairness as a demonstrable reality. "[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure." (People v. Ochoa, supra, 19 Cal.4th at p. 413.) There is no evidence the police improperly suggested something to Rae-Marie. Detective Sample clearly explained to her she would see a person who may or may not have fired the shots. He told her she had no obligation to identify anyone and she was not to be influenced by the fact the person was in custody. Rae-Marie testified she knew she was free not to identify anyone.
The evidence indicates the identification was reliable. Rae-Marie told Detective Sample she was between four and five feet away from defendant when she saw him raise the gun and fire. Asked who pulled the gun, she said it was the person she saw at the showup. The showup occurred three hours after the shooting. And when Detective Sample met with Rae-Marie, she did not appear intoxicated, was not slurring her speech, and was walking fine. In light of these facts, defendant did not prove there was a very substantial likelihood of irreparable misidentification under the totality of the circumstances.
IV
Due Diligence in Locating Rae-Marie Lujan
Defendant contends the trial court denied him his Sixth Amendment right to confront witnesses when it admitted Rae-Marie Lujan's testimony from the first trial due to her unavailability. The court found the prosecution exercised due diligence in its unsuccessful attempts to locate Rae-Marie. Defendant contends the court erred in making that finding. We disagree.
A. Background
Michael Ho, a process server for the prosecutor's office, testified at a due diligence hearing convened outside the presence of the jury. He had worked as a process server for 12 years. He received a subpoena for Rae-Marie on June 23, 2011, approximately two weeks before trial commenced on July 7. When he received the subpoena on the 23rd, he searched an in-home database called Diamond for any information on Rae-Marie. The database provided an address at 320 Wilson Avenue.
On June 27, Ho attempted service at the Wilson Avenue address. Rae-Marie's aunt was there and told him Rae-Marie used the address as a mailing address. She had no idea where Rae-Marie was. Ho left a business card with the aunt.
On June 29, Ho contacted SMUD for any account information on Rae-Marie. Nothing came back.
He next ran a search in a private online database to find any possible address. This database provided an address for Rae-Marie at 2769 Glen Arven Way from 2005 to 2011. Ho attempted service at that address, but the resident informed him he had lived there for a couple of years and did not know a Rae-Marie.
On July 6, Ho requested EDD provide him any job information on Rae-Marie. The request "came back negative."
On July 13, Ho ran a Diamond search for Rae-Marie's mother, Terry Lujan. He had multiple hits, so he could not determine which one was the correct person.
On July 14, Ho returned to the Wilson Avenue address and spoke again with Rae-Marie's aunt, Kim Lujan. Kim said she gave Ho's card to Rae-Marie but she did not have a good address for her.
On July 17, Ho attempted service at an old address, 2847 Norcross Drive. There he spoke with Rae-Marie's father, Mark Lujan. Mark was not cooperative. He told Ho Rae-Marie was not there and to leave a business card. He would give her the card.
As of the date of the due diligence hearing, July 18, Ho had received no information or contact from Rae-Marie, Kim Lujan, or Mark Lujan.
On cross-examination, Ho stated he had not been given any information about Rae-Marie's brothers, Sonny and Mark, and had no knowledge of whether Rae-Marie was living with them. He agreed it might have been reasonable to investigate that lead.
The trial court ruled the prosecution exercised due diligence in attempting to serve process on Rae-Marie. It appeared to the court Rae-Marie knew she was needed to testify and was actively evading service despite the prosecution's efforts to locate her.
B. Analysis
" ' "The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made 'a good-faith effort' to obtain the presence of the witness at trial." [Citations.]
" ' "In California, the exception to the confrontation right for prior recorded testimony is codified in [Evidence Code] section 1291, subdivision (a), which provides: 'Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' A witness is unavailable if '[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.' ([Evid. Code,] § 240, subd. (a)(5).) Although section 240 refers to 'reasonable diligence,' this court has often described the evaluation as one involving 'due diligence.' " [Citation.]' (People v. Bunyard (2009) 45 Cal.4th 836, 848-849.)
" 'We have said that the term "due diligence" is "incapable of a mechanical definition," but it "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." [Citations.] Relevant considerations include " 'whether the search was timely begun' " [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation].' (People v. Cromer (2001) 24 Cal.4th 889, 904.) 'When, as here, the facts are undisputed, a reviewing court decides the question of due diligence independently, not deferentially. [Citation.]' (People v. Smith (2003) 30 Cal.4th 581, 610 [].)" (People v. Fuiava (2012) 53 Cal.4th 622, 674-675 (Fuiava).)
The facts show Ho made efforts of a substantial, persevering character to locate Rae-Marie. He began his search timely, approximately two weeks before trial and on the day he received the subpoena, and continued looking well into the trial. He reviewed private databases, public utility records, and public employment records. He visited three possible addresses and spoke with Rae-Marie's father and aunt, the latter on two separate occasions. Rae-Marie was an important witness, and Ho's efforts were commensurate with her importance.
Defendant faults the prosecution for not keeping in contact with Rae-Marie between the two trials. However, the duty to exercise due diligence does not impose on the prosecution an obligation to keep "periodic tabs" on material witnesses in a criminal case. (Fuiava, supra, 53 Cal.4th at p. 676.) " '[T]he administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply "disappear," long before a trial date is set.' " (Ibid.)
Defendant also criticizes Ho for not knowing the address of Rae-Marie's brothers and investigating whether she lived with them. But the requirement to make a good-faith effort to locate a missing witness does not impose on the prosecution an obligation to investigate every conceivable, plausible lead. "[T]hat 'additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.' " (Fuiava, supra, 53 Cal.4th at p. 677.) The prosecution used reasonable efforts here.
V
Ineffective Assistance of Counsel
Defendant contends his counsel in the second trial rendered ineffective assistance when he failed to introduce into evidence testimony from the first trial by a witness who was unavailable for the second trial. We conclude defendant suffered no prejudice from counsel's actions, as it is not reasonably probable the witness's testimony would have affected the verdict.
A. Background
At the first trial, defendant testified he did not have a gun with him and did not shoot a gun at Cheers Sports Bar. He said he could not carry the injured Lima to his car by himself, so a "couple other people" helped him carry Lima to the car. Defendant and one person helped Lima in through the passenger door, and, defendant said, a second person walked around to the driver's side to guide Lima in from that side.
Defendant denied he was making up the second person to explain how the gun got into his car. He did not remember the second person until trial.
Farinias also testified at the first trial. Defense counsel asked him if he saw the man who got shot taken to a car. The following dialogue occurred:
"A. I remember seeing someone getting dragged to the car. I seen somebody getting carried to the car.
"Q. How many people were carrying him?
"A. Two.
"Q. And did you identify them—I mean, was there any color on their shirts?
"A. I seen the person that was getting dragged. He had a red shirt. I don't know if it was from blood or just a red shirt.
"Q. Okay. How about the two guys that were carrying him?
"A. No."
At the second trial, the court declared Farinias unavailable to testify, and defense counsel did not request that portion of Farinias's testimony from the first trial be read to the jury. Defendant also did not testify in the second trial.
During closing argument, defense counsel referenced Farinias's testimony from the first trial that had not been admitted at the second trial. Counsel argued, "[B]ut I think the evidence shows—or supports a conclusion that Blake Luke threw that gun in the car when he put Mr. Lima in the car. [¶] If you remember, Farinias said two guys in red shirts put Lima in the car." The prosecutor objected, and later defense counsel informed the jury he misspoke; there was no testimony by Farinias that two persons in red put Lima into the car.
B. Analysis
Defendant contends counsel's decision not to read Farinias's testimony into the record was constitutionally deficient because it prevented him from arguing that one of the persons who helped carry Lima to the car put the gun inside the car. To demonstrate ineffective assistance of counsel, defendant must show both that counsel's performance was deficient and the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) The performance is prejudicial where "there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
If a defendant makes an insufficient showing on either component, the claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703.)
Defendant has not shown prejudice. Even if Farinias's testimony had been read to the jury, it is not reasonably probable defendant would have received a more favorable result. Farinias's claim that he saw two people put Lima into the car is not probative. Farinias was unable to identify who the two people were or what they were wearing. And if he saw only two people put Lima into the car, his testimony does not support defendant's argument that a third person other than defendant opened the driver's side door and placed a gun under the seat. Even if defendant had testified to that effect in the second trial, Farinias's statement would have contradicted his claim. He saw only two people carry Lima, not three, as defendant had testified. It is thus unreasonable to believe Farinias's testimony would have made a difference in the second trial.
Defendant asserts the testimony would have made a difference in his second trial because in the first trial, when he and Farinias both testified, the jury hung on the Cheers Sports Bar counts. But in the second trial, defense counsel, who assumed Farinias's testimony had been admitted, did not call defendant to the stand. Without defendant testifying in the second trial, we cannot make a credible comparison with the first trial's verdict. In any event, "[t]o ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for a jury's failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return." (Yeager v. United States (2009) 557 U.S. 110, 121-122 [174 L.Ed.2d 78, 89], fn. omitted.)
VI
Cumulative Error
Defendant asserts we should reverse due to cumulative error. "Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors. (See People v. Williams (2009) 170 Cal.App.4th 587, 646; In re Avena (1996) 12 Cal.4th 694, 772, fn. 32 ['Under the "cumulative error" doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.'].) 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)" (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216-1217.)
We conclude there is no reasonable possibility the jury would have reached a more favorable result absent the combination of errors. We have found insufficient evidence supports the gang enhancements and the trial court committed nonprejudicial error by admitting testimonial hearsay from the expert witness in support of his opinion that defendant was a gang member. These errors create no more prejudice when considered together than they do individually. As stated above, had the gang evidence not been admitted, it is beyond reasonable doubt that defendant would have been convicted of the substantive offenses.
DISPOSITION
The judgment is affirmed except with regards to the gang enhancements under section 186.22, subdivision (b)(1), found true on counts one, three, and four. As to those enhancements, the judgment is reversed and the matter remanded solely for resentencing.
NICHOLSON, Acting P. J. We concur: BUTZ, J. HULL, J.