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People v. Miles

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 24, 2018
F073729 (Cal. Ct. App. Aug. 24, 2018)

Opinion

F073729

08-24-2018

THE PEOPLE, Plaintiff and Respondent, v. LARRY JERMAINE MILES, Defendant and Appellant.

Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 14CMS2104)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted defendant/appellant Larry Jermaine Miles of first degree murder for the shooting death of Jenny Jackie Torres (Pen. Code, § 187, subd. (a); count 1). The jury found true that defendant committed the murder as an active gang member and to further the activities of the gang (§ 190.2, subd. (a)(22)), and it found true various firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). In addition, he was convicted of making criminal threats (§ 422; count 2) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3). The jury found true that the latter two offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(B)).

The reporter's transcript spelled the victim's last name as "Torrez." The pleadings in this matter, however, spelled her last name as "Torres[.]" We adopt the spelling that appears in the 2nd Amended Consolidated Information.

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

The jury acquitted defendant of domestic violence (§ 273.5, subd. (a); count 4).

Defendant was sentenced to life in prison without the possibility of parole (LWOP) for the special-circumstance murder, with a consecutive term of 25 years to life for the firearm enhancement. He also received a consecutive upper term of three years for making criminal threats, and a consecutive five-year term for the gang enhancement.

Pursuant to section 654, defendant's upper term sentence of three years in count 3 was stayed.

Defendant raises several arguments on appeal directed at the jury's true findings for the special circumstance allegation in count 1 (§ 190.2, subd. (a)(22)) and the gang enhancements in counts 2 and 3 (§ 186.22, subd. (b)). Respondent concedes some error occurred when the prosecution's gang expert relied on hearsay at trial in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) when opining on defendant's gang membership. We determine, however, that the Sanchez error is harmless beyond a reasonable doubt. Defendant also contends his Fifth Amendment privilege against self-incrimination was violated when the prosecution moved into evidence his prior gang registration (§ 186.30). We determine that defendant forfeited this issue by a failure to object below, and any presumed error is harmless beyond a reasonable doubt.

We reject defendant's argument that substantial evidence does not support the special circumstance allegation (§ 190.2, subd. (a)(22)) in count 1. However, we agree that substantial evidence does not support the gang enhancements (§ 186.22, subd. (b)). We vacate the jury's true findings regarding the gang enhancements in counts 2 and 3 and remand this matter for resentencing.

Finally, via supplemental briefing, the parties disagree whether this matter should be remanded so the trial court may exercise new sentencing discretion to strike or dismiss the imposed firearm enhancements. (§ 12022.53, subd. (h).) In the interests of justice, and because we are remanding this matter for resentencing, we will direct the trial court to exercise its new discretion. We vacate the gang enhancements in counts 2 and 3, and remand for resentencing. We otherwise affirm the judgment.

BACKGROUND

At trial, defendant did not present any evidence in his defense but elected to rest on the state of the record. We provide a relevant summary of the prosecution's case-in-chief against him.

I. The Murder

Defendant shot and killed Jenny Jackie Torres as she walked on a street in Hanford, California. The shooting took place on November 8, 2013, sometime after 11:00 p.m. She suffered multiple gunshot wounds and had major blood loss. She likely died within minutes.

Based on images from a surveillance camera, officials determined that a Ford Mustang was involved in Torres's killing. Defendant was driving a Mustang just before he shot Torres. Several people were with him in this vehicle when he exited the Mustang to kill her. One passenger, Deserey Lopez, was a crucial witness for the prosecution. She was "in a dating relationship" with defendant and she testified against him at trial.

The jury heard testimony regarding how defendant came into possession of this Mustang. This vehicle had been originally rented to a man, A.S., who had then loaned it to Lopez. The jury also heard testimony regarding Lopez's sexual relationship with A.S., and how she came into possession of the Mustang from A.S.

The prosecution attempted to establish a gang motive for this killing. The Crips and Norteños are rival gangs in Hanford. According to the prosecution's gang expert, defendant was an active Crips gang member in a subset known as H-mob when he shot Torres. The evidence suggested that Torres had an affiliation with the Norteño gang. When this murder occurred, she had gang related tattoos and she was wearing red.

According to the prosecutor, defendant shot Torres in retaliation for an earlier gang related shooting. Just prior to Torres's murder, defendant had learned that a friend, Santos Reyna, had been shot by a "Northerner." Reyna was a former Northern gang member who had dropped out. Defendant and Reyna had grown up together.

Although he did not clarify for the jury, it is clear from the record that the gang expert used the term "Northerners" when referring to Norteños.

At trial, the prosecution's gang expert told the jury he was aware of dropout Northerners, like Reyna, "hanging out with Crip gang members." Such an association would help both members as it would increase power over the Norteños, give strength in numbers, and give each other protection.

According to Lopez, after hearing about Reyna's shooting, she and defendant drove to Reyna's residence. Defendant went inside and returned a short time later with two males. At trial, Lopez told the jury she thought they were going to visit Reyna in the hospital. Instead, defendant drove down a street near Highway 198. One of the males spotted a female. Defendant immediately pulled over and stopped the Mustang. Lopez described defendant as "hyped up." She tried to stop him, but he pulled away from her and jumped out of the car. He was wearing a blue hooded sweatshirt.

Neither of these males testified at trial. Lopez believed one male was Reyna's brother.

Defendant exited the vehicle by himself. Lopez heard him say "buster bitch." He stood about three feet behind Torres and extended his arm straight out from his body. Lopez heard four or five shots. Although she did not see a gun, she saw muzzle flashes. Torres fell to the ground, and defendant returned to the Mustang and drove away.

At trial, the prosecution's gang expert explained that the word "buster" is a derogatory term used against "Northerners." It would be common for a Crips gang member to yell out this term or "buster bitch" before committing a crime against a Norteño. This would show that a rival gang member committed the crime. The gang expert opined that a Crips gang member would go "buster hunting" and try to find a Norteño gang member to retaliate for an act of disrespect.

Immediately after Torres's murder, Lopez was crying and she asked defendant why he did that. Defendant "just looked mad." While they were driving in the Mustang, he asked Lopez to call his mother, which she did. Defendant complained to his mother that someone was going to "snitch" on him or words to that effect. Defendant went to a fast food restaurant drive-thru and ordered food for himself. He then dropped off the male passengers. He and Lopez went to her residence. He seemed nervous and paranoid. He told Lopez that she had "better not tell" on him. Lopez was afraid.

The following day, a Saturday, defendant and Lopez drove the Mustang to San Francisco, where they stayed the night. They attended a professional football game that Sunday. They were originally going to return to Hanford after the game, but defendant wanted to stay longer in the Bay Area because of "the situation he was in." They stayed an additional night in the Santa Rosa area before returning home on Monday. During their trip to the Bay Area, defendant repeatedly told Lopez not to snitch on him. He became "mean," and he was always in a bad mood. Lopez felt scared.

A.S., the man who rented the Mustang, also gave Lopez the tickets to attend this professional football game. She had lied to A.S, claiming she was going to take her son to the game when, instead, she had planned on taking defendant.

After Torres's murder, Lopez stayed in a relationship with defendant for about six months. On one occasion, defendant grabbed her by her hair, dragged her to the bedroom, and threw her onto a bed. He suggested he should "off" her. He said, " 'I hope that you didn't tell them bitches about what I did[,]' " and he fired a shotgun into the floor. Lopez was afraid for her life, but she did not contact police.

In May 2014, a little over six months after Torres's murder, defendant pushed Lopez and "busted" her lip. Lopez's mother and grandmother were present, and one of them called law enforcement. An officer contacted Lopez at her residence. She elected not to pursue a restraining order against defendant, but she wanted him gone.

II. Lopez's Plea Agreement

Lopez was arrested in August 2014. At trial, she testified pursuant to a plea agreement. She was originally charged with murder for her role in Torres's death. In exchange for her truthful testimony, she agreed to plead guilty to being an accessory after the fact. She was in jail about nine months before she entered into her agreement with authorities. At trial, she admitted that she spoke with police several times about this case, and she was not always truthful in the past. She claimed she had feared defendant.

An unrelated misdemeanor was also attached to this plea agreement.

Because of the plea agreement, Lopez's possible life sentence was reduced to a maximum possible sentence of six years. She admitted at trial that she would not be sentenced until after her trial testimony in this matter. The district attorney's office was going to "review the quality" of her assistance.

In addition to the plea agreement, the jury learned that, in 2007, Lopez was found guilty of robbery as a juvenile. In 2011, she had a misdemeanor conviction for giving a false name to a police officer.

III. The Testimony from Defendant's Cousin

At trial, defendant's cousin, Thomas Augustine, testified against him pursuant to a plea agreement. In January 2014, after Torres's murder, Augustine had a chance encounter with defendant at a store in Hanford. Defendant told Augustine he had "laid one down." He warned Augustine to be careful because "[B]lacks and Mexicans were getting into it." At trial, after reading a statement to himself, Augustine explained that a war had been going on between "Black and Hispanics." He agreed this war involved the "Crips and Latinos, Norte[ñ]os."

The jury learned that Augustine had a conviction in 1992 for first degree residential burglary and another conviction in 1996 for battery on a peace officer. He was in jail for another alleged residential burglary with priors.

Based on defendant's comments during their encounter, Augustine understood that defendant had killed a female on the south side next to Highway 198. Defendant had jumped out of a car "and let them have it." He then sped off. Defendant said he had "caught" the girl "slippin'[.]" Augustine explained at trial that this meant the victim had been unaware.

At trial, Augustine initially denied knowing if defendant was in a gang. Augustine admitted familiarity with the Crips gang, but denied familiarity with H-mob. After being shown a transcript, however, Augustine then admitted he previously told detectives he had believed defendant was part of H-mob. At trial, Augustine said that H-mob was "Crips."

The jury learned that Augustine first contacted investigators in August 2014. At that point, he was in custody on unrelated charges. He was facing a "serious felony with one or more strike priors" and a potential life term in prison. He originally wanted to give authorities information about other crimes (burglaries and narcotics) in exchange for leniency. Law enforcement, however, asked about homicides. Augustine claimed he had no information. When specifically asked about defendant, Augustine denied having any information, but he offered to get information for authorities. He suggested authorities should release him so he could wear a wire to capture defendant's admissions. Augustine then told authorities he had information about defendant's involvement in a homicide.

At trial, Augustine told the jury he originally played "dumb" with authorities. He admitted that they kept asking him about defendant and emphasizing Augustine's serious pending charges. At one point, during his interviews with authorities, Augustine was alone in the interview room, which had audio and video recording equipment. Authorities recorded Augustine talking to himself. He said, "Boy they going to be trying to get me, oh well he shouldn't have did what he did." Augustine then told authorities "everything." He said that defendant had "smoked that girl over by the one way."

Torres was killed on a one-way street in Hanford.

With his plea agreement, Augustine faced a maximum possible sentence of six years. At the time of his trial testimony in this matter, he was still waiting to be sentenced pursuant to his plea agreement. He admitted to the jury that he was not initially truthful with investigators, and he had been hesitant to talk about defendant. Augustine said he was afraid his family would kill him for snitching. He told the jury he came forward to talk to investigators for "time reduction, and to tell the truth."

IV. Defendant's Statements Before Trial

On November 9, 2013, the day after Torres was killed, law enforcement recorded a phone call made to Lopez's cellular phone that had originated from the local jail. Defendant answered the call. The caller wanted to know "what was going on." Defendant said some "crazy shit went down." Defendant said he was "in the [Bay Area] at the game."

The jail inmate who placed this phone call is otherwise unrelated to these events or charges.

Law enforcement arrested defendant in August 2014. While being transported to jail, defendant stated, "[T]hey are trying to get me for homicide." After a pause, he stated, " 'She should get arrested too since it is her car.' "

On cross-examination, the officer who heard this comment admitted it is "standard practice" for police to tell people why they are being arrested when they have an outstanding arrest warrant.

V. The Additional Gang Evidence

In addition to the facts above, the prosecution introduced the following evidence regarding defendant's gang membership.

A. Testimony from Lopez

At trial, Lopez denied knowing if defendant was part of any gang. She stated, however, that she knew "he hangs out with Crips," and his family "are all Crips."

B. The Prosecution's Gang Expert

At trial, Hanford Police Officer Stingley testified as the prosecution's gang expert. He had 10 years of experience as a sworn peace officer. He was with the Kings County Gang Task Force. As part of his duties in the gang unit, Stingley regularly met gang members and dropouts from both the northern and Crips gangs. He spoke with gang members, observed gang writing, and observed other indicia of gang membership, such as graffiti.

At the start of Officer Stingley's testimony, the parties placed a stipulation on the record regarding his qualifications. We set forth that stipulation and discuss it in greater detail later in this opinion.

Officer Stingley had known defendant for 15 years. Defendant had grown up in Home Garden, which is Crips turf. Prior to trial, defendant had the words "[t]hug life" tattooed or more likely written on his knuckles.

At trial, defendant's knuckles no longer had those words on them.

According to Officer Stingley, the Crips had more than three members in Kings County, and they claimed the color blue. They used a common hand sign. He said "H-mob" was a Crips clique that stood for "Hanford Money Over Bitches." He defined a clique as "a subset of a bigger organization." He agreed that H-mob is one way someone can identify as a Crip, but it was common for other gang members to still associate with other Crips regardless of the clique.

According to Officer Stingley, H-mob is in the "Home Garden area" of Hanford. Regardless of the cliques, Crips members will back each other, and they back the same color blue. They will come together to fight their common enemy, Norteño gang members.

On a telephone pole near the site of Torres's homicide, Officer Stingley had observed gang graffiti in the form of a Roman numeral XIV. According to Stingley, this graffiti indicated Norteños had marked their turf. Norteños claim the color red and the number 14. Some members will have tattoos that represent the number 14. They will wear sports jerseys that have the color red.

Officer Stingley explained to the jury the role "status" plays in the gang culture. A Crips gang member could raise his status within the gang by committing crimes. The primary criminal activities of the Crips gang included drug sales, robbery, vehicle theft, burglaries, assault with a deadly weapon, shootings, witness intimidation, criminal threats and murder.

Officer Stingley described two prior specific offenses (a robbery and an assault with a firearm) committed by other Crips gang members. Both offenses occurred in 2012 in Hanford. Both offenses were gang crimes.

1. Defendant's Prior Juvenile Adjudications

At trial, Officer Stingley reviewed two juvenile criminal matters involving defendant. In one of those juvenile matters, the juvenile court sustained a petition in 2008 alleging that defendant committed robbery (§ 211) and an assault with a deadly weapon (§ 245, subd. (a)(1)). A gang enhancement pursuant to section 186.22, subdivision (b)(1), was found true in both counts. At trial, a certified copy of this juvenile court delinquency proceeding, along with the court's disposition order, was moved into evidence as exhibit 28. As a condition of juvenile probation, defendant was required to register, and he did register, as a gang member pursuant to section 186.30 (exhibit 25).

2. Defendant's Three Prior Contacts with Police Officers

At trial, Officer Stingley discussed three prior police contacts involving defendant. These three contacts are the subject of defendant's claims on appeal regarding Sanchez error. It is undisputed that Stingley was not present when these prior police contacts occurred.

First, in 2008, defendant had been one of "five to seven black males" who attacked a victim in the Home Garden area. The victim had stated that defendant had participated in the assault. During the crime, someone had yelled, " 'This is Crip hood.' " The jury saw a certified conviction for defendant's involvement in this crime. Officer Stingley opined that defendant was an active Crips gang member at that time.

Second, in July 2008, a contact occurred between defendant and an investigator with the gang task force. The investigator found defendant with a blue notebook that had some apparent gang writing. The investigator seized the notebook. According to Officer Stingley, the writing was a "drawing of a crown, and it says Crip inside the crown, and looked like an M." The words "mob" and "Home Garden" were also visible. The letter "B" had been crossed-out. All of this suggested the Crips gang, the H-mob subset of that gang, and being against "busters." The prosecutor moved the notebook into evidence in this trial.

Finally, in 2010, an assault occurred in Hanford. Officer Stingley reviewed the report from that case. Defendant and "several other black males went to a party." A fight occurred. The victim reported "gang slurs such as H-mob and Hanford Crips." According to the victim, defendant said, " 'And now you're tripping on the little homey. F[**]k that, this is gangster Crip H-mob.' " At trial, Stingley opined that defendant was an active Crips gang member when this incident occurred, and Stingley confirmed that defendant had been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)).

3. Officer Stingley's Opinions Regarding Defendant's Gang Status

At trial, Officer Stingley opined that defendant was an active Crips gang member when he was arrested for Torres's homicide. This opinion was based on "all the contacts," the trial testimony from Augustine and Lopez, the circumstances of the crime, defendant's prior crimes, and the fact defendant was ordered to register as a gang member.

Officer Stingley noted that defendant had yelled out "buster bitch" during Torres's murder. In addition, according to Augustine, defendant had said he "laid a bitch down" and "caught this bitch slipping[.]" Stingley explained that the last statement showed that Torres had been "caught by surprise." According to Stingley, this murder took place at "almost a dividing line" between the "northern east side and the southern west side of Hanford ...." Based on the graffiti near that crime scene, Stingley believed the Northerners were claiming that turf.

4. The Hypotheticals Presented to Officer Stingley

The prosecutor presented Officer Stingley with a hypothetical set of facts that mirrored Torres's homicide. A Crips gang member sees a woman walking in a "dividing line" between Norteño and Crips gang turfs. The gang member calls out "buster bitch" and shoots her several times. The victim has several tattoos related with northern gang membership. Just before this shooting, the Crips gang member had learned that a friend of his, who had dropped out of the Norteño gang, had been shot by a Norteño for leaving that gang. Stingley opined that the hypothetical crime was committed for the benefit of the Crips gang because it would show the Crips are ruthless and it would instill fear in the community. This was an example of retaliation. This crime furthered the Crips' interests because it showed they were "willing to commit the ultimate crime of murder." It would also benefit the Crips gang member, who was putting in work for the gang.

A second hypothetical was also presented to Officer Stingley that mirrored some of defendant's actions toward Lopez after he committed this murder. A passenger was in the vehicle when the Crips gang member shot the victim. After the shooting, the Crip instructed his passenger multiple times not to snitch. The Crip went to this passenger's apartment with a shotgun, grabbed her, dragged her by her hair, and discharged the weapon while making comments that he should "off" her. Based on this hypothetical, Stingley opined that this conduct would benefit the Crips gang. It would make the witness more reluctant to contact law enforcement while keeping the Crips gang member out of custody. It would keep a "predominant or powerful person within that gang" still out on the street and able to commit more crimes. This behavior would let people know within the community that it was not okay to "tell on Crip gang members" if they commit a crime.

C. The Gang Registration

As a prior condition of juvenile probation, defendant was required to register as a gang member under section 186.30. This gang registration is one of the issues defendant raises in the present appeal.

At trial, a probation officer testified about the registration process. The officer met with defendant, who answered questions and the officer filled out the form. The officer obtained defendant's personal information, tattoos and his gang affiliation, which was "H-mob Crips." The officer understood that "H-mob" means "Hanford Money Over Bitches." The officer recorded the names of three of defendant's affiliates. Defendant initialed several boxes regarding certain advisements, including that his gang, H-mob, "is a criminal street gang whose members engage in or have engaged in a pattern of criminal activity" as described in section 186.22, subdivision (e). According to the form, members of defendant's gang have committed "[murder or manslaughter]" and "[assault with a deadly weapon]." Defendant signed and dated the form, which was moved into evidence at his trial.

DISCUSSION

I. The Sanchez Error was Harmless Beyond a Reasonable Doubt

The parties agree that, in rendering his gang opinions about defendant, Officer Stingley relied, in part, on "testimonial" hearsay in violation of Sanchez, supra, 63 Cal.4th 665. In Sanchez, the Supreme Court held that "case-specific" statements related by a gang expert concerning a defendant's gang membership are inadmissible hearsay under California law. (Id. at p. 684.) Such evidence must be independently established in court. (Ibid.) Further, "testimonial" hearsay statements must also be excluded under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), unless an exception applies. (Sanchez, supra, 63 Cal.4th at p. 685.) Testimonial statements under Crawford "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." (Sanchez, supra, at p. 689, fn. omitted.) Improper admission of such evidence is error under the Federal Constitution. (Id. at p. 685.)

"Under Crawford, if an exception was not recognized at the time of the Sixth Amendment's adoption [citation], admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. [Citations.]" (Sanchez, supra, 63 Cal.4th at p. 680, fn. omitted.)

In reviewing defendant's gang status, Officer Stingley relied on three prior police contacts. Two contacts were memorialized in police reports involving defendant and his involvement in certain crimes. The other contact involved an investigator with a gang task force who confiscated a notebook from defendant. Respondent concedes that the first two police reports were "testimonial" hearsay. We agree. These reports were not made during an ongoing emergency or for some primary purpose other than preserving facts for use at trial. This was error. (Sanchez, supra, 63 Cal.4th at pp. 694-695.)

As defendant notes in his opening brief, it is unclear from this record whether the investigator documented this incident in writing or simply told Officer Stingley about it.

A dispute, however, exists for the third contact. The parties disagree if the contact involving the notebook was a violation of hearsay under California law and/or whether this was "testimonial" hearsay in violation of federal law. They further dispute the appropriate standard of review needed to analyze prejudice for Officer Stingley's reliance on the notebook. For all three contacts, they disagree whether the errors were prejudicial. Finally, they disagree whether defendant forfeited this claim in failing to raise hearsay objections below.

We need not resolve most of these disputed issues. It is well established that, unless required to do so, we do not reach constitutional questions, and complex constitutional challenges need not be analyzed if any assumed federal error was harmless beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 652; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [finding it unnecessary to examine "complex constitutional question" because any error was harmless]; People v. Leonard (1983) 34 Cal.3d 183, 187.) This is such a situation. Based on this record, we need not address forfeiture or analyze whether the police contact involving the notebook violated federal law. Instead, this record overwhelmingly establishes that defendant was an active gang member when these crimes occurred. As such, defendant's claim is without merit because we can declare that Officer Stingley's reliance on the three prior police contacts was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).

There is currently a split of authority in the Courts of Appeal regarding whether a defendant forfeits a Sanchez claim in failing to raise objections below based on hearsay and Crawford. (Compare People v. Blessett (2018) 22 Cal.App.5th 903, 940-941 [counsel must object in trial court to preserve confrontation clause claims on appeal and Sanchez was not unforeseeable]; People v. Perez (2018) 22 Cal.App.5th 201, 211-212 [Sanchez was not significant change in law that excused counsel's failure to object to hearsay at trial]; with People v. Flint (2018) 22 Cal.App.5th 983, 996-997 [no forfeiture of case-specific hearsay objections by failing to make them below].)

A federal constitutional error is harmless under Chapman, supra, 386 U.S. 18, when the reviewing court determines beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.) "To say that an error did not 'contribute' to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) Rather, an error did not contribute to the verdict when the record reveals the error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt, supra, 500 U.S. at p. 403; see also People v. Edwards (2013) 57 Cal.4th 658, 773 [an error is harmless if the record reveals it was unimportant in relation to everything else the jury considered on the issue in question].) "The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, original italics.)

Defendant asserts that the three prior police contacts were the "main evidence" introduced against him to establish that he actively participated in gang activity. Although he concedes "a connection between gang life" and Torres's murder exists, he contends the testimony of Lopez and Augustine, along with the circumstances of the crimes, were insufficient to prove his active gang participation. He questions Augustine's credibility. He suggests his gang slur, uttered when he killed Torres, could have been simply a derogatory term used in the heat of the moment. He notes he exited the Mustang alone and claims he had a strong personal motive to kill Torres for revenge of his friend's earlier shooting. He argues that, without the hearsay evidence of his prior arrests and police contacts, the evidence only shows "a possibility" he was a gang member. We reject these arguments.

The special allegation in count 1 under section 190.2, subdivision (a)(22), required proof beyond a reasonable doubt that defendant "intentionally killed" Torres while he "was an active participant in a criminal street gang ... and the murder was carried out to further the activities of the criminal street gang." Active participation requires "involvement with a criminal street gang that is more than nominal or passive." (People v. Castenada (2000) 23 Cal.4th 743, 747.) Moreover, "active participation" must be shown at or reasonably near the time of the crime. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)

In contrast, the gang enhancements alleged in counts 2 and 3 under section 186.22, subdivision (b)(1), apply when someone commits a felony "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." As defendant concedes in his opening brief, a gang enhancement under section 186.22 does not require a showing of active or current membership in the criminal street gang that benefitted from the crime. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402.)

In this matter, apart from defendant's prior contacts with police, the evidence overwhelmingly establishes that he was an active gang participant when he killed Torres. Defendant murdered Torres shortly after he learned that his friend, Reyna, had been shot by a "Northerner." Defendant had previously warned Reyna not to wear a red jersey because Reyna had dropped out of the Norteño gang, which claimed red and disapproved of dropouts continuing to wear that color. Shortly after hearing about Reyna's shooting, defendant picked up two men, and they went driving. They spotted Torres, who was walking down a street wearing red. She was in an area dividing the Crips and Norteño gang territories. Defendant stopped the car and exited. He said, "buster bitch" as he fired at her multiple times with a gun about three feet away. He was wearing blue when he killed her.

The evidence overwhelmingly suggests that defendant murdered Torres in retaliation for the gang related shooting involving his friend, Reyna. Nothing in this record, however, demonstrates or suggests that Torres had any connection with Reyna's shooting. Nothing implies that defendant even knew Torres. Based on graffiti near Torres's murder, Officer Stingley believed the Northerners were claiming that turf. When this murder occurred, Torres had gang related tattoos which suggested affiliation with the Norteño gang.

At trial, Officer Stingley explained that the word "buster" is a derogatory term used against "Northerners." It would be common for a Crips gang member to yell out this term or "buster bitch" before committing a crime against a Norteño. This would show that a rival gang member committed the crime. The term "buster hunting" meant a gang member, either Crips or Southerners, going out and "actively looking for a Norte[ñ]o gang member, which they will call a buster." When this crime occurred, defendant had the words "[t]hug life" written on his knuckles.

The jury also had a certified copy of defendant's 2008 juvenile disposition, which found true a gang enhancement pursuant to section 186.22, subdivision (b)(1). This gang enhancement was related to a robbery (§ 211) and an assault with a deadly weapon (§ 245, subd. (a)(1)).

Finally, after Torres's murder, Augustine happened to see defendant at a store. Defendant said he had shot a girl, and he warned Augustine to be careful because a "war" was occurring between Blacks and Hispanics. At trial, Augustine admitted he previously told detectives that defendant was part of H-mob. Augustine told the jury that H-mob were "Crips." At trial, after reading a statement to himself, Augustine explained that a war had been going on between "Black and Hispanics." He agreed this war had a "gang affiliation" between the Crips and Norteños.

We disagree with defendant's claim that it is "unlikely" the jury found Augustine's testimony reliable or persuasive. In any event, when we conduct a Chapman analysis, we do not reweigh the evidence to determine whether a hypothetical reasonable jury would have reached the same result. (People v. Flood (1998) 18 Cal.4th 470, 513.) Instead, the question is whether the record reveals the error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt, supra, 500 U.S. at p. 403.)

Based on this record, Officer Stingley's reliance on the three prior police contacts did not contribute to the jury's true findings. The record reveals that this hearsay evidence was unimportant in relation to everything else the jury considered regarding defendant's gang participation. (See Yates v. Evatt, supra, 500 U.S. at p. 403; see also People v. Edwards, supra, 57 Cal.4th at p. 773.) In other words, the jury's true findings regarding the special allegation and gang enhancements rendered in this trial were surely unattributable to any error. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) As such, we can declare beyond a reasonable doubt that Stingley's testimony about the prior police contacts was harmless. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present and this claim fails.

II. Defendant Forfeited His Claim Regarding the Admission of His Required Gang Registration and Any Presumed Error was Harmless

At trial, Officer Stingley opined that defendant was a Crips gang member. That opinion was based on all of defendant's police contacts, the statements made by Augustine and Lopez, the circumstances of Torres's murder, defendant's prior crimes, and the "fact that he had to register, was ordered to register by the court. All those things combined would lead me to believe that he is a Crip gang member, an active Crip gang member."

The parties disagree whether defendant's gang registration was used against him at trial in violation of his privilege against self-incrimination under the Fifth and Fourteenth Amendments. The parties also dispute whether this issue was forfeited because defendant failed to object to the introduction of this evidence in the trial court. Defendant claims no objection was necessary because this issue involves a "fundamental" constitutional question that may be reviewed de novo on appeal. In the alternative, if an objection was required, he contends he received ineffective assistance of counsel, and we should address the merits of this claim.

Based on this record, we need not resolve the parties' dispute whether the gang registration was used against defendant in violation of his privilege against self-incrimination. We agree with respondent that defendant forfeited this issue and we reject defendant's claim of ineffective assistance of counsel. In any event, we also find any presumed error harmless beyond a reasonable doubt.

A. Defendant Forfeited this Issue

In general, a timely objection or motion is required before a verdict, finding or judgment will be reversed due to the erroneous admission of evidence. (Evid. Code, § 353, subd. (a).) Our Supreme Court has held that a failure to object in the trial court results in a forfeiture of those issues which are then raised on appeal. (People v. Dykes (2009) 46 Cal.4th 731, 756; see also People v. Redd (2010) 48 Cal.4th 691, 730 [failure to raise confrontation clause in the trial court forfeited the claim on appeal].)

Constitutional claims may be raised for the first time on appeal if the new arguments do not involve facts or legal standards different from what was raised below. (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) The new argument must assert " 'that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.' [Citations.] However, '[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.' [Citation.]" (Id. at p. 980.)

Here, defendant failed to object in the trial court when the prosecution sought to admit the gang registration into evidence against him. As such, he cannot now raise a constitutional claim after failing to ask the trial court to conduct any analysis below. (Tully, supra, 54 Cal.4th at pp. 979-980.) Thus, this issue is deemed forfeited on appeal. (See People v. Dykes, supra, 46 Cal.4th at p. 756; People v. Redd, supra, 48 Cal.4th at p. 730.)

We reject defendant's argument that forfeiture should not apply because his claim involves an alleged deprivation of fundamental rights. He cites People v. Vera (1997) 15 Cal.4th 269 (Vera). However, our Supreme Court has explained that, in Vera, "we observed that a defendant 'is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.' [Citation.] But none of the narrow class of such rights - a plea of once in jeopardy and the right to jury trial [citation] - is implicated here. Moreover, that dictum in Vera was not intended to provide defendants with an 'end run' around the forfeiture rule, thus eviscerating it. We therefore reject defendant's reliance on Vera here and at every other point at which he invokes it to avoid forfeiture." (Tully, supra, 54 Cal.4th at p. 980, fn. 9.)

In light of Tully, we reject defendant's reliance on Vera to avoid forfeiture. The dictum in that opinion does not give him an " 'end run' " around the forfeiture rule. (People v. Tully, supra, 54 Cal.4th at p. 980, fn. 9.) Based on a failure to object, defendant has forfeited the present claim. We will not set aside the jury's findings without a timely objection appearing in this record. (Evid. Code, § 353, subd. (a).) In any event, as we discuss below, defendant does not establish ineffective assistance of counsel.

B. Defendant Does not Establish Ineffective Assistance of Counsel

Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

To show deficient performance, the record must affirmatively show the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) A defense attorney's failure to object to evidence is usually a tactical decision and seldom establishes incompetence. (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) Defense counsel is in the best position to determine proper tactics in the light of the jury's apparent reaction to the proceedings. (Ibid.) Except in rare cases, an appellate court should not second-guess trial counsel. (Ibid.)

The appellate record sheds light on why defense counsel failed to challenge this evidence. During closing arguments, the defense never disputed that defendant was a gang member. To the contrary, counsel conceded that, based on the evidence, Torres's murder appeared "to be a gang shooting." She was walking down the street "wearing colors," she was in an area where a "war" was going on, and she was gunned down. Defense counsel noted that "anybody who claims blue" might have been motivated to kill her, which included defendant. However, about 50 to 60 other Crips in the Home Gardens area, along with the Hispanic gang that claims the color blue (the Sureños), might have had the same motive to kill Torres. According to defense counsel, it was understandable how defendant became a suspect in this homicide, but he argued it was all mistaken identity. He claimed Lopez and Augustine were motivated to lie, and they provided inconsistent statements to law enforcement. Defense counsel asked the jurors to question Lopez's and Augustine's credibility. Defense counsel conceded that defendant was in the rented Mustang with Lopez when they went to the professional football game. He questioned, however, whether law enforcement had located the correct vehicle involved in Torres's murder, noting that other Sureños or Crips could have had a Mustang.

Based on closing argument, the record sheds light on defense counsel's tactics. It was suggested that authorities had wrongly focused on defendant for Torres's gang related shooting because he was a rival gang member. We will not second-guess trial counsel's decision in this circumstance. (See People v. Barnett, supra, 17 Cal.4th at p. 1140 [failure to object to evidence is usually a tactical decision and seldom establishes incompetence].)

Defendant's claim of ineffective assistance is not cognizable because there is a satisfactory explanation for the actions taken. As such, defendant has failed to establish that his counsel's performance fell below an objective standard of reasonable competence. (Strickland, supra, 466 U.S. at p. 687.) Thus, ineffective assistance is not present and this claim fails. In any event, we also find that any presumed error in admitting this evidence was harmless beyond a reasonable doubt.

C. Any Presumed Error was Harmless Beyond a Reasonable Doubt

To establish prejudice, defendant argues that the gang registration evidence "was an important piece" in support of Officer Stingley's opinion that he was an active gang member. He further contends no other evidence established his knowledge that his gang had engaged in a pattern of criminal activity or had committed the enumerated crimes in section 186.22. We find these arguments unpersuasive. Based on this record, we can declare any presumed error harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; see also People v. Aranda, supra, 55 Cal.4th at p. 367.)

Contrary to defendant's argument, the requirement of a defendant's "knowledge" that fellow gang members have engaged in a pattern of criminal activity applies to the crime of actively participating in a criminal street gang under section 186.22, subdivision (a). (See People v. Albillar (2010) 51 Cal.4th 47, 56.) That charge was not at issue in this matter.

Based on our earlier analysis regarding the admission of the prior police contacts, the evidence overwhelmingly establishes that defendant was an active participant in a criminal street gang when the charged crimes occurred. Killing Torres was clear retaliation for Reyna's gang related shooting. Defendant uttered a gang slur when he shot Torres. She was wearing red, she had gang tattoos that suggested Norteño affiliation, and this shooting took place in a dividing line between Crips and Norteño gang territory. Defendant was wearing blue when he killed her. Prior to trial, defendant had the words "[t]hug life" tattooed or more likely written on his knuckles. The jury had a certified copy of defendant's 2008 juvenile disposition, which found true a gang enhancement pursuant to section 186.22, subdivision (b)(1).

The record reveals that defendant intentionally killed Torres while he "was an active participant in a criminal street gang ... and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Defendant's active gang participation was more than nominal or passive, and it was shown at the time of this crime.

Based on this record, the introduction of defendant's gang registration was unimportant in relation to everything else the jury considered regarding the special allegation pursuant to section 190.2, subdivision (a)(22). (See Yates v. Evatt, supra, 500 U.S. at p. 403; see also People v. Edwards, supra, 57 Cal.4th at p. 773.) In other words, the jury's true findings rendered in this trial were surely unattributable to this presumed error. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) As such, we can declare beyond a reasonable doubt that any error regarding the admission of the gang registration, and Officer Stingley's reliance on that registration in forming his opinion, was harmless. (See Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present and this claim fails. III. Although Sufficient Evidence Supports the Special Circumstance Allegation, the True Findings on the Gang Enhancements Must be Vacated

As defendant concedes in his opening brief, a gang enhancement under section 186.22 did not require him to be an active or current member of the criminal street gang that benefitted from his crime. (People v. Bragg, supra, 161 Cal.App.4th at p. 1402.)

Defendant claims the evidence is insufficient to establish he was in a "criminal street gang" as required for the special circumstance allegation and gang enhancements. He argues no evidence showed that the predicate offenses were committed by his gang, H-mob, and nothing showed "an organizational connection" between H-mob and the Crips. He asserts no evidence showed that H-mob and the Crips "were united in any criminal activities." He relies on People v. Prunty (2015) 62 Cal.4th 59 (Prunty) to establish error. In the alternative, if a criminal street gang was established, he contends substantial evidence did not support the gang enhancement in counts 2 and 3.

Respondent argues that defendant stipulated in the trial court that the Crips and H-mob are a criminal street gang under the required statutory definition. In addition, respondent claims that substantial evidence supports the jury's true findings regarding the special allegation and the gang enhancements.

Defendant did not address respondent's arguments in his reply brief.

We agree with respondent that defendant stipulated in the trial court that his gang was a "criminal street gang" as required for the special allegation under section 190.2., subdivision (a)(22). (See § 186.22, subd. (f) [defining "criminal street gang"].) We set forth the stipulation below in subsection A. As we explain, because of the stipulation, defendant is estopped from now taking a contrary position on appeal. In the alternative, in subsection B, we also agree with respondent that no Prunty error occurred and substantial evidence established that H-mob is a criminal street gang.

However, as we discuss in subsection C, defendant is correct that substantial evidence does not support the jury's true findings for the gang enhancements in counts 2 and 3. Other than Officer Stingley's opinion testimony, which we conclude was speculative, no evidence established that defendant committed his crimes against Lopez for the benefit of, at the direction of, or in association with a criminal street gang. As such, we will affirm the special circumstance allegation in count 1 (§ 190.2, subd. (a)(22)), but we will vacate the jury's true findings in counts 2 and 3 regarding the gang enhancements (§ 186.22, subd. (b)). This matter will be remanded for resentencing.

A. Defendant is Estopped from Arguing the Evidence is Insufficient to Establish his Criminal Street Gang

A party generally may not enter a voluntary stipulation and then appeal, claiming defects in the stipulation. (People v. Gurule (2002) 28 Cal.4th 557, 623.) Under the doctrine of judicial estoppel, a party may not gain an advantage by taking one position but then advance a wholly incompatible position to the detriment of the other party. (People v. Castillo (2010) 49 Cal.4th 145, 155.)

In this case, at the start of Officer Stingley's trial testimony, the parties placed the following stipulation on the record:

"[DEFENSE COUNSEL]: We'll stipulate that Officer Stingley is qualified to testify an opinion about whether the Crips, H-mob are a criminal street gang within the meaning of the [STEP Act].

"THE COURT: Within the meaning of [section] 186.22?

"[DEFENSE COUNSEL]: That Crips and H-mob are in fact gangs within the meaning of that law. That members of those gangs, Crips in general, H-mob particularly, have committed the predicated crimes that we are required to establish.

"THE COURT: The pattern of criminal --

"[DEFENSE COUNSEL]: Criminal conduct to qualify as a gang. And he is qualified to testify to an opinion as to whether or not [defendant] is gang involved, and to what degree. And testify as to gang culture and how crimes benefit the gang. And an opinion as to whether this crime will be a benefit.
"[THE PROSECUTOR]: So totality as far as the training and experience, I offer him as an expert on gangs.

"THE COURT: That sounds like there is a stipulation he is an expert on Crip gangs within the County of Kings is what I am hearing, is that correct?

"[DEFENSE COUNSEL]: Yes."

We agree with respondent that defendant's stipulation in the trial court established that his gang, H-mob, was a "criminal street gang" as required for the special enhancement allegation in count 1. (See § 190.2, subd. (a)(22); § 196.22, subd. (f)); see also Sanchez, supra, 63 Cal.4th at p. 698 [describing the requirements for the prosecution to prove that a gang falls under the statutory definition].) As such, defendant is now estopped in arguing the record contains insufficient evidence that his gang was a criminal street gang. He may not take am incompatible position on appeal to the detriment of the other party. (See People v. Castillo, supra, 49 Cal.4th at p. 155.) In any event, we also find no Prunty error.

B. No Prunty Error Occurred and Substantial Evidence Supports the Finding that H-mob is a Criminal Street Gang

Defendant claims that Prunty error occurred because no showing was made that his clique, H-mob, was part of the Crips. We disagree.

Section 186.22, subdivision (b), requires the prosecution to prove that the " 'criminal street gang' " that exists is the same gang which "the defendant sought to benefit (or which directed or associated with the defendant in connection with the crime)." (Prunty, supra, 62 Cal.4th at pp. 80-81.) The prosecution must show "that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same." (Id. at p. 81.) This showing is critical in a case "where the prosecution's theory of a criminal street gang turns on the activities of two or more alleged gang subsets. In such a case, the evidence the prosecution introduces to show an organizational or associational connection must be sufficient to show that the 'criminal street gang' at issue includes those particular subsets." (Ibid.)

In Prunty, the defendant claimed membership in one Norteño subset, and he also identified with the larger Norteño gang. (Prunty, supra, 62 Cal.4th at pp. 67-68.) At trial, the prosecution's gang expert reviewed predicate offenses that were committed by members of different Norteño subsets. The prosecution, however, did not introduce specific evidence showing that these subsets identified with a larger Norteño group, or that the subsets involved in the predicate offenses shared a connection with each other or any other Norteño subset. (Id. at p. 69.) The prosecution failed to establish that the various alleged gang subsets "constituted a single criminal street gang." (Id. at p. 79.)

Prunty is distinguishable. Unlike in Prunty, the prosecution did not rely on two or more alleged gang subsets to establish a criminal street gang. Officer Stingley opined that defendant was an active Crips gang member when he killed Torres. Stingley did not discuss different Crips cliques to establish the predicate offenses. To the contrary, the predicate offenses which Stingley discussed involved Crips gang members from Hanford. The concerns raised in Prunty are not present in this matter.

Moreover, the evidence established that defendant was a Crips gang member through H-mob. He had grown up in Home Garden, which is Crips turf. According to Officer Stingley, the Crips had more than three members in Kings County, and they claimed blue. They use a common hand sign. He said "H-mob" was a Crips clique that stood for "Hanford Money Over Bitches." He defined a clique as "a subset of a bigger organization." He agreed that H-mob is one way someone can identify as a Crip. H-mob is in the "Home Garden area" of Kings County. Regardless of the cliques, Crips members will back each other, and they back the same color blue. They will come together to fight their common enemy, Norteño gang members.

Based on this record, the prosecution established that the " 'criminal street gang' " which existed was the same gang which defendant sought to benefit when he killed Torres. (Prunty, supra, at pp. 80-81.) As such, we reject defendant's claim that the evidence was insufficient under Prunty. Thus, we will not reverse the special circumstance allegation in count 1 (§ 190.2, subd. (a)(22)).

C. Substantial Evidence does not Establish that Defendant Acted to Benefit a Gang in Counts 2 and 3

At trial, based on a hypothetical that mirrored some of defendant's actions toward Lopez, Officer Stingley opined that threatening her, and dissuading her from contacting authorities, benefited the Crips. According to Stingley, defendant's actions kept a Crips gang member out of custody, and people within the community would know it was not okay to tell on Crip gang members. After hearing the evidence, the jury convicted defendant of making criminal threats against Lopez (§ 422; count 2) and dissuading her from reporting a crime (§ 136.1, subd. (b)(1); count 3). The jury found true that these offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(B)).

Defendant argues that substantial evidence does not support the gang enhancements found true in counts 2 and 3. He notes he acted alone when committing these crimes. He contends his reasons for committing these crimes were purely personal and had no connection with gang activity. He asserts that Officer Stingley's opinion testimony about these crimes was speculative.

Respondent disputes these points, claiming that defendant's conduct against Lopez was committed for the benefit of, at the direction of, or in association with defendant's gang, and it promoted, furthered, or assisted felonious conduct by members of defendant's gang. Respondent agrees with Officer Stingley's opinion that these crimes against Lopez attempted to keep defendant out of custody, enhanced defendant's reputation, and enhanced the reputation of defendant's gang within the community. We find defendant's claim persuasive and we disagree with respondent.

"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.)

To establish the gang enhancement, the prosecution is required to prove "two prongs" under section 186.22, subdivision (b). (People v. Perez (2017) 18 Cal.App.5th 598, 606 (Perez).) First, the underlying felonies were "committed for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b)(1).) Second, evidence must show that the crimes were committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]" (Ibid.) In conducting our review on appeal, we may not rely on speculation, conjecture, surmise, or guesswork. (Perez, supra, 18 Cal.App.5th at p. 607.) A jury may rely on inferences to support a conviction only if a reasonable trier of fact could have determined beyond a reasonable doubt that the inferred facts are true. (Ibid.)

"Not every crime committed by a gang member is gang related. [Citations.] Nor can a crime be found to be gang related simply because the perpetrator is a gang member with a criminal history. [Citation.] Although a lone actor is subject to a gang enhancement, merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference the sole actor specifically intended to promote, further, or assist any criminal conduct by gang members. [Citation.]" (Perez, supra, 18 Cal.App.5th at p. 607.)

Numerous opinions have found insufficient evidence to support a gang enhancement when the defendant acted alone, did not communicate that he or she was trying to benefit a gang, or no other evidence connected the defendant's actions to a gang. In those situations, appellate courts have found the expert's testimony speculative that the crime was done to benefit a gang. (See Perez, supra, 18 Cal.App.5th at p. 610; see also In re Daniel C. (2011) 195 Cal.App.4th 1350, 1363 (Daniel C.); People v. Ochoa (2009) 179 Cal.App.4th 650, 662 (Ochoa); In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.).)

It is undisputed that defendant acted alone when he committed the crimes charged in counts 2 and 3. Other than Officer Stingley's opinion testimony, this record is devoid of evidence establishing the requirements for the gang enhancements in counts 2 and 3. Defendant did not make any gang signs or state any gang slurs when he made criminal threats (§ 422; count 2) and dissuaded Lopez from reporting his crime (§ 136.1, subd. (b)(1); count 3). There is no evidence he was instructed or encouraged to commit these crimes. He did not wear gang clothing. There is no evidence that he acted in concert with anyone, let alone with members of his own gang.

We question Officer Stingley's opinion that defendant acted to benefit the gang because defendant's actions kept a Crips gang member out of custody or that these crimes would send a message to the community. To the contrary, the only clear beneficiary of defendant's actions was to keep himself out of prison. Moreover, Lopez testified at trial that she was not aware that defendant was in a gang. In committing these crimes, defendant never communicated that he was attempting to benefit his gang. We do not discern how the community would be aware that these crimes were allegedly gang related.

Officer Stingley's opinion draws no distinction between crimes in general and crimes carried out with a specific intent to promote, further or assist gang activity. (See Daniel C., supra, 195 Cal.App.4th at p. 1364.) Nothing shows defendant's specific intent to promote, further or assist in criminal conduct by gang members. Defendant's gang membership is insufficient to establish such specific intent. (Frank S., supra, 141 Cal.App.4th at p. 1199.) The expert testimony in this case was insufficient to support an inference that defendant committed the crimes against Lopez with the specific intent required for the gang enhancements. (See Perez, supra, 18 Cal.App.5th at p. 612.) Stingley's testimony regarding how defendant's crimes would benefit his gang was based solely on speculation. "An appellate court cannot affirm a conviction based on speculation, conjecture, guesswork, or supposition. [Citations.]" (Ochoa, supra, 179 Cal.App.4th at p. 663.)

Based on this record, Officer Stingley's opinion testimony is not substantial evidence to support a finding of proof beyond a reasonable doubt that defendant committed the crimes against Lopez with the specific intent to promote, further or assist criminal activity by gang members. Accordingly, the jury's true findings are vacated regarding the gang enhancements in counts 2 and 3. Because of double jeopardy, retrial of this allegation is barred from a lack of evidence. (See People v. Seel (2004) 34 Cal.4th 535, 550 [double jeopardy clause bars retrial of premeditation allegation based on insufficiency of the evidence].) We will remand this matter for resentencing.

IV. No Cumulative Error Occurred

Defendant contends that, even if any alleged individual error discussed above was insufficient for reversal, the cumulative effect of the alleged errors, in any combination, created a fundamentally unfair trial. He claims he was denied due process under the Fourteenth Amendment of the United States Constitution. He seeks reversal of the special circumstance finding and gang enhancements. We disagree with his assertions as to the special circumstance finding.

"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. [Citations.]" (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)

Taking all of defendant's claims into account, we are satisfied he received a fair trial. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a criminal defendant is entitled to a fair trial but not a perfect one].) Accordingly, defendant's claim of cumulative error is without merit and this claim fails. (See People v. Bradford (1997) 14 Cal.4th 1005, 1057 [the defendant's cumulative prejudice argument rejected based on findings each individual contention lacked merit or did not result in prejudice].)

V. Upon Remand the Trial Court Shall Consider the Firearm Enhancement

At the time of defendant's 2016 sentencing in this matter, the trial court was required to impose an additional prison sentence for the firearm enhancement found true under section 12022.53. (Former § 12022.53, subds. (a)(1); (d); (e)(1)(A)(B)(2) & (h).) Because of this firearm enhancement, the court imposed a consecutive term of 25 years to life in count 1.

On October 11, 2017, however, the Governor approved Senate Bill No. 620 (Stats. 2017, ch. 682), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss this firearm enhancement. (§ 12022.53, subd. (h).) In supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to defendant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)

Although respondent agrees that this amendment applies here, respondent asserts that remand is unnecessary because no reasonable court would exercise its discretion to strike defendant's firearm enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].) Respondent argues that defendant's "callous conduct" does not warrant an act of leniency. Respondent notes that defendant was involved in a gang related shooting, he went "hunting" for the victim, he "executed" a stranger, and he shot her multiple times at close range. Further, at sentencing, the trial court imposed the upper term on count 2, finding numerous factors in aggravation. In the interests of justice, and because we are already remanding this matter for resentencing, we disagree that remand is inappropriate in this circumstance.

We note that the trial court had no discretion regarding the LWOP sentence imposed in count 1. (§ 190.2, subd. (a)(22).)

Although it appears very unlikely the trial court will strike or dismiss the imposed firearm enhancement, the amendment to section 12022.53 reflects a legislative determination to give the trial court discretion to strike firearm enhancements in the interest of justice. (People v. Woods, supra, 19 Cal.App.5th at p. 1091.) Although defendant's actions were egregious and shocking, the amendment to section 12022.53 represents a substantial change in the sentencing law vis-à-vis firearm enhancements. In light of the legislative change, the clear intent for sentencing courts to exercise this discretion, and the fact we are already remanding this matter for resentencing, we remand this issue in the interests of justice.

We take no position regarding how the trial court should exercise its discretion. --------

DISPOSITION

The matter is remanded to the trial court for resentencing. The gang enhancements are vacated in counts 2 and 3 based on the jury's true findings that defendant violated section 186.22, subdivision (b)(1). At resentencing, the court shall exercise its discretion pursuant to section 12022.53, subdivision (h), and determine whether it should strike or dismiss the firearm enhancement otherwise required to be imposed pursuant to that section. Following resentencing, the court shall forward amended abstracts of judgment to the appropriate authorities as needed. In all other respects, the judgment is affirmed.

/s/_________

POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.


Summaries of

People v. Miles

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 24, 2018
F073729 (Cal. Ct. App. Aug. 24, 2018)
Case details for

People v. Miles

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LARRY JERMAINE MILES, Defendant…

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

Date published: Aug 24, 2018

Citations

F073729 (Cal. Ct. App. Aug. 24, 2018)