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People v. Hayes

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 8, 2018
No. F071352 (Cal. Ct. App. Jan. 8, 2018)

Opinion

F071352

01-08-2018

THE PEOPLE, Plaintiff and Respondent, v. JARROD ERNEST SPENCER HAYES, Defendant and Appellant.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13904939)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jarrod Ernest Spencer Hayes appeals following his convictions for murder (Pen. Code, § 187, count 1) and assault with a firearm (§ 245, subd. (a)(2), count 2). Relevant to this appeal, appellant's murder conviction included true findings on a gang-related special circumstance (§ 190.2, subd. (a)(22)) and a gang enhancement (§ 186.22, subd. (b)(1)) allegation. Appellant raises several assertions of error concerning these later allegations. Specifically, appellant contends the true finding on the gang-related special circumstance cannot stand because the relevant statute is constitutionally infirm, since it is not sufficiently differentiated from the gang enhancement to properly narrow the class of individuals potentially subject to the death penalty. Related to this point, appellant contends there is insufficient evidence to support the gang-related special circumstance. Appellant also contends the gang-related special circumstance cannot stand because it was predicated on an improper set of stipulations that amounted to a guilty plea, allegedly taken without the necessary admonishments and waivers of appellant's rights. Finally, appellant contends the trial court improperly admitted much of the evidence offered to prove both the gang-related special circumstance and the gang enhancement. Appellant argues he suffered from ineffective assistance of counsel on this issue, should this court conclude his counsel's failure to object forfeited his right to raise concerns about the admissibility of the contested evidence.

All future statutory references are to the Penal Code unless otherwise noted.

For the reasons set forth below, we affirm on the above issues. However, following our decision to grant rehearing on whether the recent enactment of Senate Bill 620 provides retroactive discretionary authority for the trial court to strike appellant's related conviction on firearm enhancements to the murder and assault charges, under sections 12022.5 and 12022.53, we remand this matter to allow the trial court to exercise its newfound discretion in the first instance.

FACTUAL AND PROCEDURAL BACKGROUND

At around 1:45 a.m., on May 25, 2013, officers responded to a shooting outside of a gas station and liquor store in Fresno. There they found Aaron Foster dead from multiple gunshot wounds. Witnesses at the scene explained that appellant approached Foster and shot him in the head. Several additional shots were fired, one of which struck a nearby witness. Witnesses did not see any argument or fighting between appellant and Foster, and did not believe Foster ever saw the gun.

Appellant was charged with murder and assault with a firearm, along with multiple firearm and gang-related enhancements. He proceeded to trial where the proceedings were bifurcated to deal with the criminal conduct and firearm enhancements first and the gang allegations second. During the portion of the trial dealing with the murder charge, the parties stipulated that appellant "is an active member and participant in the Villa Posse street gang and goes by the nickname Deuce or Jay," that Foster "was an active member and participant in the 107 Hoover Crips criminal street gang and went by the nickname Sonny or Sunno" at the time of the shooting, and that "there exists a long-standing and violent rivalry between the Villa Posse and the 107 Hoover Crips." Later, during the portion of the trial dealing with the gang allegations, the parties further stipulated that "the Villa Posse is a criminal street gang as defined in Penal Code Section 186.22(e) and (f)."

In seeking to prove the gang allegations, the People also called seven police officers and a gang expert to provide testimony regarding appellant's gang affiliation and motivation for committing the shooting. Five of the officers called detailed various jail classification interviews occurring between 2009 and 2013. In these interviews, appellant repeatedly admitted being a member of the Villa Posse gang, at one point stating he had been a member for eight years in 2013, confirmed he would have problems if housed with other gangs, and confirmed he went by the name Deuce or Jay. Another officer detailed the results of an investigation following an incident where appellant was assaulted while in jail. In that incident, appellant was attacked by gang members who acted believing he was a Villa Posse gang member. Appellant admitted to being a Villa Posse gang member during the investigation. The final officer testified regarding the execution of a search warrant in 2012 where a rifle and gun were found in appellant's apartment. In an interrogation related to that investigation, appellant admitted to being a Villa Posse gang member, showed the officer relevant gang signs, confirmed he went by the name Little Deuce, and stated he would be willing to shoot at a rival gang member. During the presentation of this evidence, appellant's counsel only objected during the discussion of the search warrant, raising hearsay and prejudice arguments, which were overruled.

The gang expert then provided testimony regarding appellant's gang membership and conduct, along with more general gang information. With respect to general background on the Villa Posse gang, the expert recounted historical information about the gang, including when it was first noticed and its original territory. The expert explained the gang was part of an alliance known as Twamp and, therefore, was historically in conflict with another alliance of gangs known as Mug. The expert discussed common phrases and colors used by Villa Posse gang members, and detailed their current territories. The expert testified she knew at least three Villa Posse members personally and that there were at least 90 members in the gang. The expert noted Villa Posse gang members regularly engage in illegal conduct, including the illegal possession of weapons, narcotic offenses, shootings, and murder. The expert informed the jury that respect is an important concept in gangs generally and that respect can be gained within gangs through the commission of violent acts. The expert identified an ongoing violent rivalry between the Villa Posse and the 107 Hoover Crips, explaining she had knowledge of at least nine different shootings between a Villa Posse member and a Hoover Crip member between 2005 and 2010.

With respect to determining whether one was an active gang member generally, the expert identified the various factors considered in making this determination. These included things such as associating with other gang members, having gang tattoos, and self-identifying as a gang member during jail classification interviews, among others. The expert then recounted at least seven different incidents, between 2009 and 2011, where the expert had been made aware of instances appellant had been contacted or arrested while in the company of known Villa Posse gang members. In one of these incidents, the expert stated appellant and a known gang associate were determined to have engaged in a shooting involving a different Hoover Crip's house. There is no indication in the record the expert personally participated in investigating any of these incidents.

Based on this evidence, the expert presented several opinions. These included opinions that appellant was an active member of the Villa Posse gang, an opinion the expert stated would not change if the jail classification evidence was not considered, and that an active member of the Villa Posse gang would know of the conduct of other members. On this point, the expert noted appellant had committed many crimes with other gang members and had been present during the execution of a search warrant seeking evidence of criminal conduct. The expert further opined that Foster was a Hoover Crip and well known in the community as such. Based on hypothetical questions in line with the evidence presented, the expert opined a shooting like the one in this case would further the interests of the Villa Posse gang because the gang "would gain in reputation for being ruthless or being violent." The expert also opined the shooting would benefit the gang because as the shooter's status for violence increases, so does the reputation of the gang, increasing the gang's ability to instill fear and gain respect. Finally, the expert opined that murdering a rival gang member was at the top of the list of ways to do work for the gang, due to the potential consequences both of being caught and of incurring retaliation from the act.

Appellant was ultimately convicted by jury of both murder and assault with a firearm, along with enhancements for using a firearm. The jury also found true, with respect to the murder charge, a gang-related special circumstance (§ 190.2, subd. (a)(22)) and a gang enhancement (§ 186.22, subd. (b)(1)) allegation. Based on these findings, appellant was sentenced to a term of 25 years to life for committing murder with a firearm, followed by an indeterminate term of life without the possibility of parole based on the murder charge and special circumstance finding. He then received a consecutive sentence of 14 years for the assault charge.

This appeal timely followed. We initially affirmed appellant's conviction in a nonpublished opinion dated October 30, 2017. Shortly thereafter, on November 6, 2017, appellant filed a petition for rehearing arguing the recently enacted Senate Bill 620, which provides a trial court has discretion to strike certain firearm enhancements, applied retroactively to his case and warranted a remand for resentencing. The People conceded Senate Bill 620 applies retroactively, but argued, after we granted rehearing, that appellant's case should not be remanded because such a remand would be futile. In this revised opinion, we reissue our prior decision to affirm appellant's conviction and consider the dispute whether remand is appropriate in light of Senate Bill 620.

DISCUSSION

Appellant does not contest his underlying convictions for murder and assault with a firearm, nor does he question the factual basis supporting the enhancements for using a firearm. Rather, in this appeal, appellant attacks the gang-related aspects of his conviction. Primarily, appellant attacks the evidence offered to support the gang components of his sentence. He contends the evidence is insufficient to support the gang-related special circumstance because it is identical to that offered to prove the gang enhancement. Relatedly, he argues the gang-related special circumstance is unconstitutional partially because it permits such an overlap in evidence. He further contends, based on separate constitutional arguments, that the evidence offered to support both the gang-related special circumstance and the gang enhancement was improperly admitted. In conjunction with this position, appellant raises an ineffective assistance of counsel claim. Separately, appellant takes issue with the scope of the stipulations entered into regarding his status as a gang member and the status of the Villa Posse as a gang. Appellant argues the stipulations were so complete that they effectively amounted to a guilty plea with respect to the gang-related special circumstance.

We begin with this later position, which contains a narrower contention related only to the gang-related special circumstance, before turning to the full scope of appellant's contentions regarding the evidence offered to support both of the gang charges. Propriety of Appellant's Stipulations

As noted above, in the course of the bifurcated proceedings, appellant's counsel entered into two stipulations on appellant's behalf. Appellant now contends that these stipulations "explicitly and implicitly covered every fact and element of the gang special circumstance necessary for a true finding." We do not agree.

Standard of Review and Applicable Law

Under the cases of Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), courts are obligated to inform a defendant of certain constitutional rights prior to accepting a guilty plea. Under the so-called Boykin-Tahl rule, in a criminal proceeding "a guilty plea is not valid unless the record reflects . . . the defendant had been advised of and waived his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination." (People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 746.)

This principle was later extended to evidentiary stipulations, although it was severely limited in its application. As the California Supreme Court explained in People v. Adams (1993) 6 Cal.4th 570, 581, "When a defendant who has asserted and received his right to trial, and has waived none of his constitutional rights, elects to stipulate to one or more, but not all, of the evidentiary facts necessary to . . . imposition of additional punishment on finding that an enhancement allegation is true, the concerns which prompted the Boykin holding are not present." Accordingly, the Boykin-Tahl rule is not "applicable to an evidentiary stipulation which does not admit the truth of the allegation itself or every fact necessary to imposition of the additional punishment other than conviction of the underlying offense. Unless the stipulation or admission is that broad, it does not have the definite penal consequences necessary to trigger the Boykin-Tahl requirements." (Adams, at p. 580.)

Appellant's Stipulations Were Not Tantamount to a Guilty Plea

As appellant recognizes, the gang-related special circumstance contains four elements. First, that the defendant intentionally killed the victim. Second, that the defendant was an active participant in a street gang. Third, that the defendant knew of the gang's illegal purpose. And, fourth, that the murder was carried out to further the activities of the criminal street gang. (§ 190.2, subd. (22); People v. Carr (2010) 190 Cal.App.4th 475, 488 (Carr).) We agree with appellant that, following his plea, the first three of these elements were met. The jury in the first phase had already concluded appellant intentionally killed Foster, and the stipulations that appellant was an active member in the Villa Posse and that the Villa Posse is a criminal street gang were more than sufficient to demonstrate the second and third elements. However, even considering the stipulation that the Villa Posse and Hoover Crips had a long-standing and violent rivalry, we do not agree appellant's stipulations were sufficient to demonstrate the murder was carried out to further the activities of the criminal street gang.

Appellant argues the fourth element was met because "the People's gang expert used the stipulated facts as the basis for her opinion that this murder was carried out to further the activities of the criminal street gang." However, for this argument to succeed, we would have to ignore that the evidence relied upon by the expert was insufficient to satisfy the element itself. Indeed, the expert's testimony was necessary to explain, both considering the history of gangs generally and the relevant gangs in particular, why an attack carried out by a Villa Posse gang member, against a Hoover Crip gang member, and undertaken in a manner similar to that which occurred here, would further the activities of the Villa Posse gang. Without this additional expert evidence, a jury might rationally look at such an event and conclude it does not further the activities of the Villa Posse gang because the gang member involved risks being arrested and placed in jail for a substantial period of time, unable to commit further crimes or otherwise benefit the gang. The additional expert testimony connecting the specific conduct that occurred to the statutory requirement that it further the Villa Posse gang's activities was not explicitly, or even implicitly, part of the stipulation at issue. The stipulation is thus fundamentally different than that in appellant's primary case, People v. Little (2004) 115 Cal.App.4th 766. There, the defendant stipulated to violating a specific drug statute, thus necessarily admitting all elements contained within that statute. Here, appellant stipulated to much, but not all, of the statutory elements and not, as he argues, to an actual violation of the statute as a whole. Regardless whether appellant now regrets such a tactical choice, the stipulation itself was not improper. Admission of Gang Expert's and Related Testimony

Appellant also attacks a large portion of the evidence introduced through and relied upon by the gang expert to support both the gang enhancement and the gang-related special circumstance on two principal grounds. First, under People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), appellant contends all evidence of gang membership obtained during so-called jail classification interviews and police questioning was improperly admitted because the People failed to demonstrate appellant had been provided appropriate Miranda warnings prior to giving his statements. Appellant relies on this argument in seeking to exclude not only the multiple booking interviews, but also statements made when appellant was the victim of an assault while in jail and following the execution of a search warrant in 2012. Second, under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), appellant contends all evidence of gang membership introduced by the expert which was based solely on "the content of reports written by other police officers regarding appellant's prior offenses and gang contacts, and Foster's gang affiliation" was inadmissible because it violated the confrontation clause of the United States Constitution. Appellant relies on this argument in seeking to exclude all evidence relied on by the gang expert derived from police reports and contacts where the reporting officer did not testify, including multiple reports from 2009 through 2012, and the reports relating to the incident in this case.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Standard of Review and Applicable Law

Considering the order under which we will analyze the arguments, we begin by recounting the law relevant to appellant's confrontation clause position and then proceed to the law regarding appellant's Miranda claim.

Confrontation Clause Principles

"The Sixth Amendment to the federal Constitution guarantees a defendant's right to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Harris (2013) 57 Cal.4th 804, 839-840.) Under federal confrontation clause jurisprudence, as interpreted by our California Supreme Court, at least two factors must be considered to determine whether a statement is testimonial. "First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (People v. Dungo (2012) 55 Cal.4th 608, 619.) However, "[i]t is evident that Sixth Amendment jurisprudence following the Supreme Court's decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) remains in considerable flux." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395.) Indeed, courts have spent significant effort collecting and summarizing the various permutations of the doctrine. (See, e.g., People v. Barba (2013) 215 Cal.App.4th 712, 714-733.)

As appellant notes, in the course of this appeal our Supreme Court provided additional guidance in this area when it decided Sanchez. Sanchez considered "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion." (Sanchez, supra, 63 Cal.4th at p. 670.) Sanchez reasserted the historical distinction between case-specific hearsay and the general hearsay relied upon by experts to detail general knowledge in the expert's field of expertise. (Id. at pp. 675-678.) In doing so, it clarified that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Id. at p. 684.)

Having established this baseline, the Court then considered whether certain types of hearsay evidence in gang cases are testimonial in nature and thus within the purview of Crawford's constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at p. 687.) The Court detailed its understanding of the present evolution of what constitutes testimonial hearsay, explaining as a precursor, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.) It then recounted various permutations of the primary purpose test, before applying the overarching doctrine to certain evidence relied upon in reaching the gang conclusions in that matter. (Id. at pp. 689-694.) In its application, the Court found that police reports are generally testimonial in nature, as are field identification cards written during the course of an active investigation. (Id. at pp. 695-697.) The Court concluded the admission of such testimonial hearsay violates the confrontation clause. (Sanchez, at pp. 695-698.)

" ' " 'Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 873.) " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.)

Miranda Principles

Under the Fifth Amendment as detailed by the rule of Miranda, supra, 384 U.S. at pp. 478-479, "certain admonitions must be given before a suspect's statement made during custodial interrogation can be admitted in the prosecution's case-in-chief." (Elizalde, supra, 61 Cal.4th at pp. 527, 532.) Historically, however, certain questions asked under what is called the booking exception are exempted from this rule. In Elizalde, our Supreme Court explained, "That authority recognizes that, for a limited category of booking questions involving biographical data, no Miranda warnings are required and admission of the defendant's answers at trail does not violate the Fifth Amendment. For questions outside this limited category, however, answers given, without an admonition, to questions an officer should know are reasonably likely to elicit an incriminating response may not be admitted in the prosecution's case-in-chief." (Id. at pp. 531-532, fn. omitted.)

The question in Elizalde was whether "routine questions about gang affiliation, posed to defendant while processing him into jail on murder charges, come within Miranda's well-recognized booking exception." (Elizalde, supra, 61 Cal.4th at p. 527.) Retracing principles relevant to the meaning of custodial interrogation, the Court noted one is in custody when they have actually been taken into custody or otherwise deprived of their freedom in any significant way, and is interrogated when the police utilize any words or actions, other than those normally attendant to arrest and custody, that they know are reasonably likely to elicit an incriminating response from a suspect. (Id. at p. 534.) Considering California's "comprehensive scheme of penal statutes aimed at eradicating criminal activity by street gangs," (id. at pp. 538-540) the Court concluded standard questions about gang affiliation asked during the booking process for a murder charge were "reasonably likely to elicit an incriminating response." (Ibid.) But the Court noted that prior cases, such as People v. Williams (2013) 56 Cal.4th 165, applied the same standard when finding officers asking questions in response to a request for protective custody " 'were appropriately responding to defendant's own security concern, and would not reasonably have expected him to produce a confession.' " (Elizalde, supra, 61 Cal.4th at p. 529.)

As with the confrontation clause challenges, the "erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard." (Elizalde, supra, 61 Cal.4th at p. 542.) "That test requires the People here 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " (Ibid.)

We review whether the proffered evidence violated the Fifth Amendment, and the confrontation clause, and whether any such error was prejudicial, issues of law, de novo. (See Elizalde, supra, 61 Cal.4th at p. 530; People v. Stamps (2016) 3 Cal.App.5th 988, 992.)

Appellant's Sanchez and Elizalde Arguments Have Not Been Forfeited

Focusing on the fact that appellant's counsel offered no objections to the majority of the evidence contested on appeal, raising only hearsay and prejudice arguments to evidence concerning appellant's admission after being attacked in jail, the People argue appellant forfeited his claims under the Fifth and Sixth Amendments. Aside from one issue, we do not agree.

Both Sanchez and Elizalde constitute substantial changes in the law concerning the admissibility of evidence in criminal trials. Sanchez itself recognized that the paradigm in existence at the time held that an expert's testimony could relate facts typically considered hearsay provided the jury received a proper limiting instruction. (Sanchez, supra, 63 Cal.4th at p. 679.) The Court then wholly rejected that paradigm and set forth the current test. While Elizalde did not widely overturn existing legal precedent, it did resolve a split between the Courts of Appeal concerning the legitimate scope of the booking exception in a manner that substantially changed the admissibility analysis for statements made during the booking process. (Elizalde, supra, 61 Cal.4th at pp. 533-534.) As the People recognize, this clarification occurred after appellant's trial, which accounts for appellant's failure to raise such issues at the time. Thus, at the time of appellant's trial, an objection under the confrontation clause or one seeking exclusion of evidence subject to the then-understood booking exception would have been futile. Accordingly, we excuse appellant's lack of objection on these grounds and review his contentions on the merits. (See People v. Welch (1993) 5 Cal.4th 228, 237 ["Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence."].)

We note, however, that this conclusion does not extend to all grounds raised by appellant in this appeal. Specifically, appellant has alleged an Elizalde violation with respect to statements he made in the course of questioning following the execution of a search warrant in 2012. The record provides no basis to conclude these statements were made following appellant's arrest as part of the booking process, as opposed to being made through normal interrogation practices following a legal detention. In our independent review of the record, we see no foundational basis to conclude appellant's Elizalde argument would apply to the contested search warrant statements. As such, appellant has made no showing the law regarding appropriate Miranda warnings has changed in a manner which would warrant exercising our discretion to overlook appellant's lack of objection. For similar reasons (i.e., the lack of any evidence Elizalde is applicable to these statements), we see no basis to support appellant's assertion of ineffective assistance of counsel for failing to object. As Elizalde error was not implicated, there could be no error in failing to object on such grounds.

In light of the above conclusions, we now consider whether admitting the evidence properly included within this appeal violated appellant's constitutional rights.

The Contested Gang Expert Testimony Violated the Confrontation Clause

Under appellant's confrontation clause argument, he contends that the gang expert impermissibly introduced evidence from prior police contacts, spanning from 2009 to 2012, because the expert relied upon and recounted that information solely from police reports. The People acknowledge that their gang expert relied upon "over half a dozen police reports detailing law enforcement contacts with appellant and other Villa Posse gang members." The People argue, though, there is "nothing in Crawford or its progeny however, that prohibits a gang expert from relying on hearsay as a basis for her opinions as to a person's gang membership status or that a particular crime was gang related." The People properly note that Sanchez was pending at the time of their briefing and that the case relates to this argument.

Given the subsequent guidance provided by Sanchez, it is apparent that the evidence introduced through the gang expert derived from prior police reports was inadmissible testimonial hearsay. It is, in fact, now clear that the Crawford line of cases prohibits a gang expert from recounting testimonial hearsay as the basis for her opinion. None of the evidence related from police reports and field contacts appears to have arisen in the course of an emergency and, thus, there is no indication the police reports and field information are not testimonial in nature. (See Sanchez, supra, 63 Cal.4th at pp. 695-697.) Introduction of such evidence, therefore, violated the confrontation clause. (Id. at pp. 695-698.)

Some of the Remaining Contested Testimony Violated Miranda

Appellant's Miranda arguments cover three distinct forms of evidence, two of which were preserved for review in this appeal. In the first, appellant objects to testimony recounting question and answer sessions during various jail classification interviews designed to determine where appellant would be housed while incarcerated. In the second, appellant applies the same logic to questions asked after appellant's 2012 assault while in jail. We take each in turn.

Jail Classification Interviews

Five officers responsible for jail classification procedures testified concerning interviews where appellant admitted to gang membership, twice in 2009, twice in 2012, and once in 2013. None of these officers testified they provided Miranda warnings prior to questioning appellant, nor were they questioned on whether they did so. Several did state they regularly ask their questions of all inmates for classification purposes. The People appear to recognize that, under Elizalde, introduction of such evidence was erroneous. However, the People argue appellant cannot demonstrate error generally because the record is silent as to any Miranda warnings and note that Elizalde was not the law at the time of the trial. We find neither argument persuasive.

As a matter of criminal procedure correcting a serious flaw in the factfinding process at trial—the introduction of constitutionally infirm evidence—we have no doubt that Elizalde should be applied in this appeal. (See In re Montgomery (1970) 2 Cal.3d 863, 867 [rules of criminal procedure correcting serious flaws in the factfinding process at trial routinely applied retroactively]; see also People v. Leon (2016) 243 Cal.App.4th 1003, 1012 [noting Elizalde was issued during the pendency of the appeal, as here, before applying it].) Under Elizalde's analysis, absent evidence appellant received Miranda warnings before being asked jail classification questions regarding his gang affiliations, the People may not introduce appellant's statements in their case-in-chief. (Elizalde, supra, 61 Cal.4th at pp. 538-540.) Nor does the lack of evidence of Miranda warnings sink appellant's claim. Having found that appellant's objections were not forfeited, due to the substantial change in the law affected by Elizalde, and that Miranda's protections applied to this situation, the burden falls to the People to demonstrate a knowing, intelligent, and voluntary waiver of those rights. (People v. Linton (2013) 56 Cal.4th 1146, 1171.) There is no evidence of such a waiver in this case. Accordingly, we conclude the jail classification testimony was improperly admitted.

Assault Investigation

We reach a different conclusion with respect to the assault investigation. As our Supreme Court settled the law on the booking exception in Elizalde, partially through clarifying the test for interrogation laid out in Rhode Island v. Innis (1980) 446 U.S. 291 was controlling, it specifically discussed its prior case of Williams. (Elizalde, supra, 61 Cal.4th at pp. 534, 538.) In Williams, the Court concluded questions asked " 'appropriately responding to defendant's own security concern' " were of the type that would not reasonably have expected the defendant to produce a confession. (Elizalde, at p. 537.)

We view the questions asked after appellant was assaulted in 2012 to fall within the permissible scope of questioning approved in Williams and examined in Elizalde. The record testimony demonstrates officers were investigating appellant's own complaints about being attacked in prison and following up on statements made by appellant that demonstrated the attack may have had a gang-related motivation. While the direct question whether appellant was, in fact, a gang member is notable, on the whole we conclude the questions asked were not of the sort that the investigating officer would have reasonably expected appellant to produce a confession. Indeed, appellant was not reasonably faced with any possibility of obtaining a gang-related charged as a result of this investigation. As such, we do not find Elizalde barred admission of this evidence.

The Errors Were Not Prejudicial

Having found error under both Sanchez and Elizalde, we next consider whether that error was prejudicial. In this analysis, determining if appellant suffered prejudice from the erroneous introduction of testimonial hearsay requires us to examine the elements of the offense and the relevant evidence. (See Sanchez, supra, 63 Cal.4th at p. 698.) The People argue any error was harmless beyond a reasonable doubt because other evidence, including the stipulations entered into, demonstrates conclusively both that appellant was "an active member and participant of the Villa Posse street gang" and that the motive for murdering Foster was gang related. Considering the errors identified separately or cumulatively, and recognizing the heightened requirement that the People prove " 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,' " we ultimately find the errors harmless beyond a reasonable doubt. (Elizalde, supra, 61 Cal.4th at p. 542.)

As appellant contests the admissibility of evidence under both the gang enhancement and the gang-related special circumstance, we consider the relevant requirements of both. The gang enhancement requires proof a felony was 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." (§ 186.22, subd. (b)(1).) "The enhancement set forth in section 186.22(b)(1) does not pose a risk of conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68.)

The gang-related special circumstance requires "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Although not identical, the language of section 190.2, subdivision (a)(22) "substantially parallels the language of section 186.22, subdivision (b)(1)." (Carr, supra, 190 Cal.App.4th at p. 488.) In particular, section 186.22, subdivision (b)(1) requires a specific intent to "promote, further, or assist in any criminal conduct by gang members," while section 190.2, subdivision (a)(22) requires one act "to further the activities of the criminal street gang."

The nature of the murder in this case, as shown by the evidence, is calculated and heinous. But, standing alone, there is nothing about it which suggests gang activity. Rather, that inference arises out of the totality of the evidence presented by the People regarding appellant and the victim of the crime. Even without the evidence excluded under Sanchez and Elizalde, the People demonstrated that appellant and Foster were members of rival gangs that had a current and ongoing dispute, resulting in several shootings. They also demonstrated appellant's gang involvement was long-standing, involved the possession of weapons, and was significant enough that he was targeted by rival gang members when in jail. Finally, they showed through appellant's own words that he would, if the situation called for it, shoot at a rival gang member.

The excluded evidence aided in painting a fuller picture of appellant's gang involvement. It showed multiple arrests and bookings, long-term gang involvement, and an apparent correlation between the two. While the evidence properly admitted did not directly shed light on appellant's knowledge that Foster was a rival gang member, imply that appellant and Foster had any prior history or knowledge of each other, or otherwise directly show appellant was targeting Foster as a rival gang member, it did permit the jury to draw these rational conclusions. The properly excluded evidence added little, if anything, to those points and, therefore, was generally duplicative of the admitted evidence. As such, we conclude beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict.

The Evidence Was Sufficient to Support Appellant's Conviction

Although we have found any error in admitting evidence in this matter was harmless, we are still faced with appellant's contention, based in part on the request to exclude the above evidence and the contested stipulations, that there was insufficient evidence to support his conviction. Appellant also argues insufficient evidence with respect to the gang-related special circumstance specifically, regardless of the admissibility of the evidence. We must therefore determine whether the prosecution presented substantial evidence in support of the gang allegations. This entails a review of the record in the light most favorable to the judgment, accepting as true all evidence that is reasonable, credible and of solid value such that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

Having resolved the evidentiary disputes, we conclude the evidence was sufficient to support the contested convictions. As noted, ante, appellant's stipulations covered much of the evidence necessary to convict under either the gang enhancement or the gang-related special circumstance. Indeed, following the stipulation, all that remained was proving the murder was "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" for the gang enhancement and "carried out to further the activities of the criminal street gang" for the gang-related special circumstance. (§§ 186.22, subd. (b)(1), 190.2, subd. (a)(22).) On these points, the People introduced evidence regarding appellant's past involvement with the gang, a stipulation regarding the violence between appellant's gang and the victim's gang, and expert testimony tying these facts together in an opinion that appellant's conduct both benefited and furthered his criminal street gang. When viewed in the light most favorable to the prosecution, the properly considered evidence as a whole was sufficient to prove the gang allegations.

Turning to appellant's arguments concerning only the gang-related special circumstance, we readily reject appellant's contention that the gang-related special circumstance is unconstitutional for failing to sufficiently differentiate between those subject to the death penalty and those not subject to the death penalty. The requirement of an intentional killing done to further an identified criminal street gang is a sufficient distinguishing factor to pass constitutional muster. (See People v. Stevens (2007) 41 Cal.4th 182, 215 [lying-in-wait special circumstances and lying-in-wait murder sufficiently distinct because the former requires an intent to kill, while the latter does not].) We also note our Supreme Court has repeatedly stated the factors identified in the relevant statute pass constitutional muster as a whole. (See People v. Sivongxxay (2017) 3 Cal.5th 151, 198.)

Similarly, we reject appellant's "as applied" challenge on sufficiency of the evidence grounds and its suggestion that the same evidence cannot demonstrate both that a gang member's conduct benefited his gang and that it furthered the gang's activities. In doing so, we need not resolve appellant's contention that the gang-related special circumstance requires more than a retroactive benefit to the gang. Even if we accept this as true, the evidence introduced regarding a potential benefit to the gang from the murder separately and adequately supports the reasonable inference that the killing was done to further the gang's activities. There is no logical reason why the evidence cannot support both inferences, and appellant has pointed us to no legal precedent stating so. Evidence concerning the basis for and effect of one's conduct can reasonably support multiple nonconflicting inferences. Specific to this case, the evidence demonstrated there was an ongoing dispute between appellant's gang and the victim's gang and that this dispute had involved several previous shootings. Thus, evidence that another shooting occurred between the gangs, in which one gang member shot another execution style in a public place, could rationally support both the conclusions that the shooting retroactively benefited the gang by increasing its reputation for violence and that it furthered the gangs' activities by continuing the current and ongoing dispute in a public way. The gang expert considered both inferences and stated her opinion that the conduct both benefited the gang retroactively and furthered the gang's activities. The jury could rationally accept this opinion based on the evidence before it.

Remand in Light of Senate Bill 620

As noted above, we granted appellant's petition for rehearing in this matter after the People conceded Senate Bill 620 applies retroactively but requested an opportunity to brief whether remand was appropriate in this matter. Specifically, the People contend that remand is not appropriate because no reasonable court would exercise the newly enacted discretion under Senate Bill 620 to strike the firearm enhancements in this case. The People point to the fact that appellant received a consecutive sentence on the firearm conviction and the aggravated terms on the assault conviction and section 12022.5 firearm enhancement. They argue the trial court clearly indicated it would not strike the enhancements even if it had the authority to do so. Appellant disagrees, arguing the trial court made no statements clearly indicating how it would exercise its discretion if it had any, in part, because there was, in fact, no discretion for the court to exercise at the time.

While the facts of this case and the trial court's sentencing decisions strongly suggest it would not strike the firearm enhancements at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case. The sole case cited by the People in support of their position, People v. Gutierrez (1996) 48 Cal.App.4th 1894, is distinguishable on the fact that the court in Gutierrez stated clearly it did not find "any good cause to strike" the prior conviction at issue and "a lot of reasons not to," concluding that the appellant was "the kind of individual the law was intended to keep off the street as long as possible." (Gutierrez, at p. 1896.) In contrast, here the trial court merely determined consecutive sentencing was appropriate due to the presence of multiple victims and otherwise stated it was imposing the sentence authorized by law. This case is, therefore, more like those cited by appellant, such as People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under Senate Bill 620, we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly.

/s/_________

HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
PEÑA, J.


Summaries of

People v. Hayes

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 8, 2018
No. F071352 (Cal. Ct. App. Jan. 8, 2018)
Case details for

People v. Hayes

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JARROD ERNEST SPENCER HAYES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 8, 2018

Citations

No. F071352 (Cal. Ct. App. Jan. 8, 2018)

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