NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS132548A)
A jury convicted appellant Omar Cesar Ramirez of various narcotics and gang offenses. Ramirez appeals the judgment, alleging evidentiary errors by the trial court, violation of his right to confront witnesses, and sentencing error. He also contends he is entitled to remand in order for the trial court to exercise its discretion whether to strike an enhancement imposed under Penal Code section 667, subdivision (a). We agree with this latter point and remand Ramirez's case for the trial court to consider whether to exercise its discretion to strike the enhancement. In all other respects, we reject Ramirez's contentions and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
The Monterey County District Attorney filed an amended information charging Ramirez with two counts of conspiracy (Pen. Code, § 182, subd. (a)(1); counts 1-2), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 3), sale or offering to sell methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 4), street terrorism (§ 186.22, subd. (a); count 5), and criminal street gang conspiracy (§ 182.5; count 6). With respect to counts 1 through 4, the information alleged Ramirez had committed the crimes for the benefit of, at the direction of, or in association with the Norteno criminal street gang (§ 186.22, subd. (b)(1)(A)). The information further alleged that Ramirez had suffered a prior strike conviction for a violent or serious felony (§1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)) and had served a prior prison term (§ 667.5, subd. (b)). The trial court dismissed count 6 on the prosecution's motion, and it was not submitted to the jury. The prison prior allegation was similarly not submitted to the jury and was struck by the trial court at sentencing.
Unspecified statutory references are to the Penal Code.
Ramirez's jury trial began on March 3, 2014, and ended four days later. The jury found Ramirez guilty of all counts and found true the prior strike conviction and prior serious felony conviction allegations.
Shortly after the jury returned its verdict and prior to sentencing, Ramirez posted bail and subsequently failed to appear in court. Four years later, in June 2018, Ramirez was returned on a warrant issued by the trial court. Prior to his sentencing in 2018, Ramirez filed a motion requesting that the trial court dismiss his prior strike enhancement in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385, subdivision (a). On August 30, 2018, the trial court denied Ramirez's Romero motion, denied probation, and sentenced him to an aggregate term of 22 years and four months in prison. The trial court awarded custody credits of 721 days and imposed fines and fees that are not at issue in this appeal.
Although the trial court described the aggregate sentence as "21 years and four months," the court appears to have made an arithmetical error. Based on the terms imposed for each count and enhancement, the aggregate sentence was 22 years and four months' imprisonment. The minute order for the sentencing hearing and the abstract of judgment state the correct aggregate sentence, and both parties agree that Ramirez was sentenced to a prison term of 22 years and 4 months.
B. The Evidence Presented at Trial
The evidence heard by the jury centered on phone calls and text messages to and from Ramirez, testimony about police surveillance of him, and narcotics seized from individuals with whom Ramirez communicated.
Jesse Pinon was a deputy with the Monterey County Sheriff's Office. He testified about an investigation, "Operation Snake Eyes," that focused in part on an "active Norteno gang member" named Paul Gabriel Leyva. The investigators applied for and received a court order to wiretap several phone numbers associated with Gabriel Leyva. During the investigation into Gabriel Leyva, Ramirez came to the officers' attention, and they secured a court order to wiretap his phone number.
The jury heard a number of phone calls made by or to Ramirez. The jury was given transcripts of those calls which Pinon and other witnesses testified were accurate, and Pinon provided to the jury his explanation of the meaning of the conversations in light of the language used and the context in which the communications were made.
On April 2, 2013, law enforcement intercepted a phone call from Ramirez to Gabriel Leyva. Pinon testified that they were discussing money and mentioned another person, referred to as "X," who was actually Xavier Lopez. In Pinon's view, the conversation was "very relevant as far as narcotics dealing within the Norteno criminal street gang." Pinon told the jury, "In this call Gabriel Leyva was at this time reporting to Efrain Perez and giving his monthly or weekly dues to Efrain Perez on the block. On the block is considered China Town. The certain area of Soledad Street, they considered that the block. [¶] So Leyva informs Mr. Ramirez that, hey, I've been paying my weeklies to Efrain." Ramirez on the call told Gabriel Leyva to give the money to Xavier to give to Ramirez. Pinon testified that the money referenced on the call "is monthly dues or weekly dues based on individuals who are selling narcotics from the Norteno criminal street gang."
All dates were in 2013 unless otherwise indicated.
The prosecution's gang expert, Brian Hoskins, also testified about this conversation. Hoskins told the jury that in this call Ramirez was "basically telling Leyva to let all the other Norteno gang members know that Efrain is not the one who is supposed to have the money turned in to him. That [Ramirez] is the one who is supposed to be collecting the money and sending it up to the incarcerated members or placing it in the bank account." He described the area of Soledad Street in Salinas referenced in the call as "basically an open air drug market within Monterey County."
On April 6, "Manuel" called Ramirez. On the phone call, Manuel and Ramirez discussed "coca" and "yeyo," which Pinon testified were references to cocaine. Approximately twenty minutes later, Ramirez called another individual and discussed "Yolanda," which Pinion testified was a reference to cocaine.
A question by the prosecutor suggested that "Manuel" was Manuel Ambrosio, but no witness testified to his full name.
On April 8, a call was made to Ramirez's phone in which the caller, described as an "unidentified male," told Ramirez that a woman "[t]ook off with my dope." Ramirez asked the caller if he "still [had] that black on [him]." Pinon testified that "black" referred to heroin. When the caller said he had the black, Ramirez asked if the caller could "shoot some of that right now." Ramirez asked the caller how much he had, and the caller replied "two grams," which Pinon testified meant that "he has two grams of heroin." Ramirez said "you can sell it for like 60, 70 bucks," and told the caller "give me like one and a half." Pinon testified that Ramirez was asking for "one and a half grams of the black."
Luis Bravo was a narcotics detective with the Salinas Police Department. On April 9, he conducted surveillance on Ramirez and testified at trial about a series of phone calls and text messages that occurred on April 9 between Ramirez and an individual named Jaime Perez (Perez). During one of the calls, Ramirez and Perez discussed meeting at Hartnell College. Perez asked Ramirez "Okay, you wanted the half right?" Ramirez responded "Yeah," and Perez replied "Alright, I got you." Bravo testified, based on his training and experience, that Ramirez was "asking for a half an ounce; which is roughly 14.17 grams of . . . narcotics." Based on these calls, the police conducted surveillance that day at Hartnell College and observed a meeting between Ramirez and Perez. The officer conducting the surveillance did not see Ramirez exchange anything with Perez. The police did not stop either Ramirez or Perez on April 9 and did not seize any narcotics from them that day.
Jaime Perez also used the name Jose Perez. Unspecified references to "Perez" are to Jaime Perez.
Bravo also testified about a series of text messages sent to and from Ramirez and another individual on April 9. Based on those text messages, the officers set up surveillance at a Denny's restaurant in Salinas. Officers saw Ramirez meet there with a person later identified as "Racine" but did not see any narcotics exchanged or make any arrests.
Daniel Robison was a detective with the Monterey County Sheriff's Department who participated in the wiretap investigation. He testified to a series of phone calls and text messages that occurred on April 23 between Ramirez and Perez, the individual with whom Ramirez had met on April 9 at Hartnell College. In the calls and texts, Ramirez and Perez arranged to meet at B.J.'s restaurant and discussed a " 'half.' " Deputy Pinion was monitoring these texts and calls on April 23 as they were being intercepted by law enforcement. Based on these messages, Pinon decided that the police should "conduct a traffic stop on Jaime Perez" because Perez "was going to deliver narcotics to Omar Ramirez" and because Perez was on parole and subject to search by law enforcement. The police elected not to stop Ramirez on April 23 because it would jeopardize the ongoing investigation and potentially alert other targets of the wiretap investigation that the police were monitoring their communications.
Juan Alberto Cruz-Gonzalez was a Salinas police officer. On April 23 he participated in the car stop and subsequent search and arrest of Jaime Perez. Cruz-Gonzalez found a plastic baggie inside Perez's underwear containing what appeared to be methamphetamine. The substance was later tested and confirmed to be 13.66 grams of methamphetamine.
On April 25, Ramirez received a phone call from a woman later identified as Maria DeLaRosa. The woman and Ramirez arranged to meet at a park in Salinas. The woman said " 'bring me the half.' " Pinon testified that, based on his experience as a narcotics detective, " 'bring me the half' " means "you're requesting a half an ounce of whether it be heroin, cocaine, meth and so forth." Neither DeLaRosa nor Ramirez mentioned a specific drug on the April 25 call. That day, Robison, who was conducting surveillance of Ramirez, saw Ramirez take an item from his shoe and hand it to DeLaRosa, who was sitting in another car. The police neither arrested nor searched Ramirez or DeLaRosa on April 25.
On the call, DeLaRosa spoke partially in Spanish and said " 'Traje me la mitad,' " which Bravo testified meant " 'bring me the half.' "
On April 29, Ramirez and DeLaRosa exchanged a series of phone calls. Based on those phone calls, Deputy Pinon decided that law enforcement should "conduct a traffic stop on Maria DeLaRosa" to try and "confiscate" the narcotics discussed on the phone calls. Kendall Gray was a sergeant with the Salinas Police Department. On April 29, he observed Ramirez hand something to DeLaRosa at the same park where Ramirez and DeLaRosa had met on April 25. Gray testified that this appeared to him to be a "hand-to-hand" narcotics transaction.
Anthony Garcia was a police officer with the City of Salinas. On April 29 he conducted a car stop of DeLaRosa, who was in the car with another woman and DeLaRosa's granddaughter. During the car stop, DeLaRosa dropped a plastic bag containing methamphetamine. After Garcia saw the bag containing methamphetamine, he arrested DeLaRosa. The bag seized from DeLaRosa on April 29 contained 13.93 grams of methamphetamine.
On May 1, Ramirez received a telephone call from a man named Larry. During the call, Larry asked Ramirez if he had heard about Maria. Larry said "they" pulled Maria over and "[t]hey didn't find her with anything but somehow, someone . . . found it under the cop car." Larry asked Ramirez if Ramirez could help "us" pay. Ramirez said he couldn't do anything and he needed to be paid for what Maria lost. Ramirez said "I mean I wanna be paid, and I mean, I am gonna be paid, you know what I'm saying?" Ramirez told Larry, "[s]he needs to—I mean she needs to figure out a way to get me—get, take care of me too, you know what I'm saying, cause , I need to come up with that money myself." Deputy Pinon testified that Ramirez meant that he had "fronted" the drugs to DeLaRosa, and he was trying to recover from her "the proceeds that he was supposed to get [from her]."
Brian Hoskins was a sergeant with the Monterey County Sheriff's Department. He testified as an expert on gangs in Monterey County and described the general history and structure of, as well as crimes committed by, the Norteno criminal street gang. Hoskins also participated in Operation Snake Eyes.
Hoskins testified that Ramirez has a Huelga bird tattooed on his arm and stated "[t]his tattoo is significant as it is a sign or symbol of the Norteno criminal street gang and the Nuestra Familia prison gang." Hoskins testified about another of Ramirez's tattoos that depicts prison bars, a clown, and a person crying that "speaks to the gang lifestyle or gang experience with no specific indication to any individual street gang that I can see." Hoskins stated that Ramirez has a tattoo of the letter "N" on him, which "symbolize[s] the Norteno criminal street gang."
Hoskins had known Ramirez for a while and was familiar with Ramirez's voice. On May 14, the police intercepted a call from Ramirez to Vincente Garcia, which was played for the jury. Hoskins testified Ramirez was speaking on the call to Garcia, who was "a member of the Nuestra Familia, who at the time . . . was the regimental commander of the Monterey County area," about selling narcotics in the area of Soledad street in Salinas. In the May 14 call, Ramirez asked Garcia whether he had discussed giving "the monthly" to someone else. Hoskins testified that, based on his training and experience "monthlies" are "a contribution that goes back to the gang itself and is eventually funneled into the gang's bank account or high-ranking individual members' prison accounts." In the intercepted phone calls, Ramirez used "several slogans that are very specific to the gang lifestyle and the Norteno criminal street gang."
Hoskins testified that he was "familiar" with an incident on January 14, in which Salinas police officers found "Norteno gang indicia" on Ramirez's cell phone. Hoskins was also "familiar" with Ramirez's registration as a gang member on May 22, 2012, and that Ramirez had stated that he had been a gang member since he was 14 years old. Hoskins stated that Ramirez "admitted that he was aware that there [were] over 50 Norteno criminal street gang members within the city of Salinas and that he was aware that Norteno criminal street gang members committed crimes and - like narcotics sales, shootings, those kind of things. He made those admissions on that date." Hoskins did not indicate how he was familiar with Ramirez's statements on January 14, although Hoskins's later testimony made clear that Hoskins had spoken with Ramirez at some point about Ramirez's gang affiliation.
Hoskins stated it was his opinion that Ramirez "has an amount of authority within the Norteno criminal street gang," which was demonstrated by his communications with high-ranking gang members and "by being entrusted with collecting the weekly and monthlies from other gangs." These communications led Hoskins to "form the opinion that [Ramirez] has a higher-ranking status than your average street member within the organization." It was Hoskins's opinion that Ramirez "was an active participant of the Norteno criminal street gang . . . between March and May 20th of 2013 and that he continues to be an active participant of the Norteno criminal street gang to this day."
The defense did not present any evidence at trial.
Ramirez challenges two evidentiary rulings by the trial court related to witnesses who testified as experts for the prosecution. He contends the trial court violated his confrontation rights by allowing the gang expert to present testimonial hearsay about the facts underlying the "predicate offenses" element of section 186.22. He additionally argues the trial court abused its discretion in allowing a police officer testifying as an expert witness on drug sales to testify that Ramirez had sold methamphetamine to Jaime Perez. With respect to his sentence, Ramirez argues the trial court erred when it failed to stay the punishment under section 654 for his convictions for counts 3 and 5, and the case must be remanded for the trial court to consider whether to strike the enhancement under section 667, subdivision (a). We first address Ramirez's evidentiary claims.
A. Whether the Gang Expert's Testimony about Predicate Crimes was Inadmissible Testimonial Hearsay
Ramirez contends the testimony of Brian Hoskins, the prosecution's gang expert, about the details of "predicate offenses" committed by individuals other than Ramirez was inadmissible hearsay and violated his rights under the confrontation clause and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
Prior to trial and during trial, Ramirez objected to Hoskins's testimony on hearsay and confrontation grounds although neither he nor the trial court had the benefit of Sanchez, which was issued by the California Supreme Court two years after his trial. Ramirez acknowledges a split in authority among the courts of appeal on whether the confrontation clause bars the admission of expert testimony containing hearsay about underlying predicate offenses. (Compare People v. Meraz (2016) 6 Cal.App.5th 1162, 1175; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411 (Vega-Robles); People v. Blessett (2018) 22 Cal.App.5th 903, 945 (Blessett), review granted on another issue Aug. 8, 2018, S249250); with People v. Lara (2017) 9 Cal.App.5th 296, 337 (Lara); and People v. Ochoa (2017) 7 Cal.App.5th 575, 583, 588-589 (Ochoa).) Ramirez argues that the cases holding the facts underlying predicate offenses are case-specific are "better reasoned."
As described above, Ramirez was a fugitive for approximately four years after his conviction.
Ramirez contends Hoskins did not personally witness any of the events forming the basis of the predicate convictions, other than those involving Ramirez himself. Therefore, Hoskins "had to have" obtained the relevant facts about which he testified from police reports. Ramirez argues the "case-specific facts underlying the predicate offenses" are inadmissible hearsay under Sanchez and violated Ramirez's Sixth Amendment rights because they were testimonial. In addition, Ramirez contends admission of this evidence was prejudicial because the other evidence supporting the gang enhancements "was not overwhelming." In particular, there was no evidence that Ramirez himself was paying taxes to the gang, and Ramirez could have been dealing drugs for his personal profit. Ramirez further asserts the inflammatory nature of the evidence surrounding the predicate offenses prejudiced the jury against Ramirez in light of Hoskins's testimony about "specific details" about them.
The Attorney General agrees that there is no evidence that Hoskins's testimony about the predicate offenses involving Gabriel Leyva, Villa Gomez, Cruz, Lopez, and Meza was based on Hoskins's personal observations.
The Attorney General emphasizes that gang experts may testify to "background information" under Sanchez and may rely on hearsay in forming their opinions and relate to the jury in "general terms" that they did so. Relying on People v. Bermudez (2019) 253 Cal.Rptr.3d 197, 210, rehg. granted Oct. 25, 2019, C079168, C079169), the Attorney General contends that Hoskins's testimony did not violate Sanchez because the factual circumstances of the predicate offenses were not case-specific information. The Attorney General also argues the evidence was not testimonial because "nothing demonstrates that Sergeant Hoskins's primary purpose for gathering the information on the predicate offenses was for use in a later criminal prosecution" and instead could have been for "community policing efforts."
Rehearing was granted in Bermudez the day after the Attorney General filed his brief in this case.
In the alternative, the Attorney General maintains that any error in the admission of Hoskins's testimony about the predicate offenses was harmless because there was "overwhelming" admissible evidence supporting the gang enhancements. The certified conviction records showed that the predicate offenses were gang-related. Furthermore, Ramirez's own prior conviction and crimes in this case satisfied the predicate offense element of the gang charges. The Attorney General also points out that nothing in the predicate offenses bore on whether Ramirez sold drugs to benefit the gang or for personal profit.
Ramirez acknowledges that he does not challenge the nonhearsay evidence of the predicate offenses, such as the certified conviction records, but argues the hearsay evidence was prejudicial because details of those offenses inflamed the jury against Ramirez and weakened his argument that his drug sales were for personal profit. Ramirez points out that, because it has been depublished, Bermudez may no longer be cited as legal authority.
1. Factual Background
Because resolution of Ramirez's challenge to Hoskins's testimony depends on the details of that testimony, we recount Hoskins's assertions about the predicate offenses at some length.
Hoskins testified about an offense committed by Jaime Perez on April 23 in which Perez agreed to provide Ramirez with half an ounce of crystal methamphetamine at BJ's restaurant. The certified conviction records for this offense admitted into evidence show that Perez was convicted of transportation of a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)). Hoskins opined that Perez was "an active Norteno criminal street gang member" on April 23.
Hoskins also testified about offenses involving Gabriel Leyva that occurred in April. Hoskins stated "Mr. Leyva and the defendant in this case had a phone conversation regarding the collecting of the weekly for the gang. The weekly is a term used to describe collecting of taxes that are then filtered up to members who are incarcerated in the California Department of Corrections. [¶] A search warrant was later served at Mr. Leyva's residence and he was found to be in possession of heroin for sale, cocaine base for sale, crystal methamphetamine for sale and all packaged or possessed for the purposes of sales. And additionally [he] was charged with the enhancements under 186.22 of the Penal Code." Hoskins testified that Gabriel Leyva was convicted of "various narcotics charges with the gang enhancement 186.22(b)." The certified conviction records for this offense admitted into evidence show that Gabriel Leyva was convicted of possession of a controlled substance for sale (methamphetamine) (Health & Saf. Code, § 11378), possession of a controlled substance for sale (heroin) (Health & Saf. Code, § 11351) with a gang enhancement (§ 186.22, subd. (b)(1)), and possession of cocaine base for sale (Health & Saf. Code, § 11351.5) with a gang enhancement (§ 186.22, subd. (b)(1)). Hoskins opined that Gabriel Leyva was "an active member of the Norteno criminal street gang" "at the time of Paul Leyva's activity."
Although the prosecutor asked Hoskins about "an event that occurred on or about April 24, 2013, concerning Paul Gabriel Leyva," the conviction documents admitted into evidence demonstrate that Gabriel Leyva was convicted of three crimes: two crimes committed on April 4, 2013 (counts 2 and 11) and one crime committed on April 19, 2013 (count 4). We assume the prosecutor misspoke when he posed the question.
Hoskins also testified about an offense committed by Hector Villa Gomez on August 17, 2011. Hoskins described Gomez's arrest and stated "a search of [Gomez's] cell phone was conducted and on the cell phone they located pictures of firearms, as well as Norteno gang indicia. [¶] Mr. Villa Gomez was taken back to the south county station of the sheriff's office, where he refused to perform a strip search and took a fighting stance even though he was handcuffed. He was eventually transported to the Monterey County jail and he was found to be in possession of narcotics that were secreted between his buttocks. [¶] A search warrant was later authored and written for Mr. Villa Gomez's residence where the upper receiver for an AR or M4 assault rifle was located. And in addition . . . crystal methamphetamine for the purposes of sales, ammunition and Norteno gang indicia were all located inside his residence." Hoskins testified that Villa Gomez was convicted of possession for sale of a controlled substance with a section 186.22 gang enhancement. The certified conviction records for this offense admitted into evidence show that Villa Gomez was convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378) with a gang enhancement (§ 186.22, subd. (b)(1)). Hoskins testified it was his opinion that Villa Gomez was an active member of the Norteno criminal street gang at the time of this offense.
Hoskins testified about an offense committed by Raymond Cruz on October 23, 2010. Hoskins stated that, on that date, a Monterey County gang task force officer recognized Cruz as being a "parolee at large," who was not abiding by the terms of his parole. Cruz fled and was pursued by the task force officer who "observes Mr. Cruz running with a semiautomatic handgun in his hand and a juvenile defendant also to be running [sic] with a handgun in his hand. [¶] Mr. Cruz is eventually apprehended and the firearm he was running with was located and he was placed into the back seat of a patrol car. Upon exiting that patrol vehicle . . . . 11 bindles of crystal methamphetamine packaged for the purposes of sales were located in a container that was left behind in the patrol vehicle that was not there prior to Mr. Cruz being in the vehicle." Hoskins testified that in his opinion Cruz was "an active Norteno criminal street gang member" on October 23, 2010. The certified conviction records for this offense admitted into evidence show that Cruz was convicted of possession of a controlled substance for sale (methamphetamine) (Health & Saf. Code, § 11378) while personally armed with a firearm (§ 12022, subd. (c)) and street terrorism (§ 186.22, subd. (a)).
Hoskins testified about an offense committed by Steven Lopez on April 16, 2008. When asked to recount the facts, Hoskins testified that on April 16, 2008, "officers from the Salinas Police Department went to Mr. Lopez's residence to conduct a probation compliance search . . . . officers located approximately three ounces—over three ounces of cocaine in Mr. Lopez's room in addition to a large amount of Norteno gang indicia within his room." Hoskins testified that in his opinion Lopez was an active member of the Norteno criminal street gang on April 16, 2008. The certified conviction records for this offense admitted into evidence show that Lopez was convicted of possession of a controlled substance for sale (cocaine) (Health & Saf. Code, § 11351) and street terrorism (§ 186.22, subd. (a)).
Hoskins testified about an offense committed by Virginia Meza on December 12, 2008. When asked to recount its facts, Hoskins testified that Ms. Meza was stopped by the police while driving her car. "She was on probation for a previous narcotics sales offense. [¶] They executed a traffic stop on her and contacted her and Drew Ortiz, a known Norteno gang member, and Ms. Flores, a known Norteno gang member. A search of the vehicle was conducted and meth, crystal methamphetamine was located throughout the vehicle. [¶] Ms. Meza admitted to possession of the crystal—some of the crystal methamphetamine and also admitted to possession of some items of Norteno gang indicia that were located within the vehicle that included . . . pictures on a phone and gang writings on CDs that were within her vehicle." The certified conviction records for this offense admitted into evidence show that Meza was convicted of transportation of a controlled substance for sale (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)) and street terrorism (§ 186.22, subd. (a)).
Hoskins testified that he arrested Ramirez on May 22, 2007. On that date, Hoskins attempted to stop the car Ramirez was driving. Ramirez "accelerated away" and then allowed two passengers to exit. After the passengers exited, Ramirez drove away with his car door still open, striking several parked vehicles. One of the passengers who had exited Ramirez's car dropped a gun. Ramirez "was taken out of his vehicle at gunpoint. He was found to be in possession of a bat that had gang writing on it within his vehicle. And he was taken into custody without further incident." Hoskins testified at the trial in which Ramirez was convicted of "those offenses occurring on May 22, 2007." The certified conviction records admitted into evidence show that Ramirez was convicted of willfully evading a peace officer (Vehicle Code, § 2800.2, subd. (a)), evading a peace officer (Vehicle Code, § 2800.1, subd. (a)), possession of a deadly weapon (§ 12020, subd. (a)), misdemeanor resisting an officer (§ 148, subd. (a)(1)), carrying a loaded firearm (§ 12031, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)(1)), and carrying a concealed weapon (§ 12025, subd. (a)(1)). Hoskins opined that Ramirez was "an active gang member" on May 22, 2007, although in this portion of his testimony Hoskins did not assert that Ramirez was a member of the Norteno gang specifically.
2. Legal Analysis
Our analysis of Ramirez's challenge to Hoskins's testimony begins with the prosecution's burden with respect to the gang charges.
a. Elements of the Gang Charges
"Penal Code section 186.22, also known as the Street Terrorism Enforcement and Prevention Act (the STEP Act or Act), was enacted in 1988 . . . . The Act imposes various punishments on individuals who commit gang-related crimes—including a sentencing enhancement on those who commit felonies 'for the benefit of, at the direction of, or in association with any criminal street gang.' " (People v. Prunty (2015) 62 Cal.4th 59, 66-67 (Prunty), italics omitted.) "The STEP Act defines a 'criminal street gang' as an 'ongoing organization, association, or group.' (§ 186.22(f).) That 'group' must have 'three or more persons,' and its 'primary activities' must consist of certain crimes. [Citation.] The same 'group' must also have 'a common name or common identifying sign or symbol,' and its members must be proven to have engaged in a 'pattern of criminal activity' by committing predicate offenses." (Id. at p. 71.)
Under the STEP Act, a " 'pattern of criminal gang activity' means that gang members have, within a certain time frame, committed or attempted to commit 'two or more' of specified criminal offenses (so-called 'predicate offenses'). (Pen. Code, § 186.22, subd. (e).)" (People v. Gardeley (1996) 14 Cal.4th 605, 610, disapproved of on other grounds by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The predicate offenses need not themselves be " 'gang related.' " (Gardeley, at p. 621.)
The prosecutor may prove the STEP Act's "requisite 'pattern of criminal gang activity' by evidence of 'two or more' predicate offenses committed 'on separate occasions' or by evidence of such offenses committed 'by two or more persons' on the same occasion." (People v. Loeun (1997) 17 Cal.4th 1, 10.) If the prosecution wishes to prove the predicate offenses by showing their commission "on a single occasion by 'two or more persons,' it can . . . rely on evidence of the defendant's commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member." (Ibid.) In addition, the predicates "need not consist of evidence that different Penal Code provisions were violated." (Ibid., fn. 4.) However, "[c]rimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity." (People v. Duran (2002) 97 Cal.App.4th 1448, 1458, italics omitted.)
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court overruled decades of confrontation clause jurisprudence and held that the prosecution may not admit at trial previously made "testimonial statements" (id. at pp. 53-54) of a witness unless that witness testifies at the trial or the witness "[is] unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination." (Id. at p. 54.) Following Crawford, the California Supreme Court in Sanchez held that, when any expert relates to the jury case-specific, out-of-court statements and treats the content of those statements as true to support the expert's opinion, the statements are hearsay and must either fall within a hearsay exception or be independently proven by competent evidence. (Sanchez, supra, 63 Cal.4th at pp. 684-686.)
Under Sanchez, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay." (Sanchez, supra, 63 Cal.4th at p. 680, italics omitted.) "Whether a statement is testimonial turns on ' "whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' " ' " (People v. Armstrong (2019) 6 Cal.5th 735, 790.)
Sanchez also reinterpreted the hearsay rules under California law applicable to expert testimony. The court reiterated that an expert may testify about "background information regarding his knowledge and expertise and premises generally accepted in his field." (Sanchez, supra, 63 Cal.4th at p. 685.) However, an expert may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
"Since Sanchez, California appellate courts have held that expert testimony about 'the general attributes of the . . . gang, such as the gang's culture, the importance placed on reputation and guns, . . . the gang's rivals and claimed turf, the use of monikers and identifying symbols, and the like, [are] permissible as expert background testimony.' " (People v. Anthony (2019) 32 Cal.App.5th 1102, 1138.) A gang expert may testify about the history and founding of a particular gang, even if the sources of the information are hearsay. (Vega-Robles, supra, 9 Cal.App.5th 382, 411.) Such admissible background testimony includes testimony about the "primary activities" of a criminal street gang within the meaning of the STEP Act. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1175 (Meraz).) By contrast, an expert may not relate case-specific testimonial hearsay, such as information contained in police reports authored by other officers. (Sanchez, supra, 63 Cal.4th at pp. 694-695; People v. Malik (2017) 16 Cal.App.5th 587, 598.)
A gang expert who has personal knowledge of the facts and is subject to cross-examination at trial may testify to facts contained in documents that would otherwise be considered testimonial hearsay, such as field identification cards. (Meraz, supra, 6 Cal.App.5th at p. 1176.) Testimony by an officer about personal observations made by that officer, such as of an individual's tattoos, location, companions, or clothing, are not hearsay and thus do not run afoul of the confrontation clause. (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248.)
b. Hoskins's Testimony Included Testimonial Hearsay
We agree with Ramirez that Hoskins's testimony about the details of prior offenses committed by Villa Gomez, Cruz, Lopez, and Meza contained testimonial hearsay. We acknowledge that some courts have generally stated that information regarding predicate offenses constitutes "background testimony" that does not fall within Sanchez's bar on testimonial hearsay. For example, the Court of Appeal in Meraz, stated that Sanchez's allowance of expert testimony about "general gang behavior or descriptions of the . . . gang's conduct and its territory" (Meraz, supra, 6 Cal.App.5th at p. 1171) "plainly includes the general background testimony [the gang expert in Meraz] gave about Terra Bella's operations, primary activities, and pattern of criminal activities, which was unrelated to defendants or the current shooting and mirrored the background testimony the expert gave in Sanchez. It also falls in line with the Sanchez court's hypothetical example that an expert may testify that a diamond tattoo is 'a symbol adopted by a given street gang' and the presence of the tattoo signifies the person belongs to the gang." (Id. at p. 1175.)
However, in Meraz, the gang expert's testimony on the predicate offenses was apparently limited to an "identifi[cation] [of] the convictions of several Terra Bella members based on court records." (Meraz, supra, 6 Cal.App.5th at p. 1173.) There is no indication that the gang expert in that case recounted specific details of the predicate offenses not contained in the conviction records. We therefore do not agree that Meraz supports the characterization of the detailed testimony given by Hoskins here as "background information" about which the expert could testify without personal knowledge.
Some courts have countenanced expert testimony about the details of predicate offenses, reasoning that Sanchez defined "case-specific facts to be facts 'relating to the particular events and participants alleged to have been involved in the case being tried.' " (Blessett, supra, 22 Cal.App.5th at p. 944.) We are not persuaded that the principles articulated in Sanchez support a conclusion that expert testimony about predicate offenses not committed by the defendant can never constitute inadmissible testimonial hearsay.
We agree that Sanchez made a distinction between case-specific facts and background information (Sanchez, supra, 63 Cal.4th at p. 676), but we do not read the decision (or the Evidence Code generally) as otherwise countenancing expert testimony about detailed facts drawn from hearsay sources as long as the offenses were not committed by the individuals who happen to be on trial. Far from allowing expert testimony about evidentiary details drawn from hearsay testimony, Sanchez instead emphasized that an expert may only properly testify about his or her "general knowledge" and provide "generalized information." (Ibid.)
Under Sanchez, an expert may appropriately describe a gang's history, symbols, and general activities. However, an expert cannot rely on hearsay information gathered by other officers and memorialized in police reports and recount to a jury as expert testimony that the person "took a fighting stance" when arrested or had methamphetamine secreted in his buttocks, as Hoskins here testified about Villa Gomez. The information Hoskins recounted about the predicate offenses involving Villa Gomez, Cruz, Lopez, and Meza went far beyond mere commission of the offenses and a connection to the Norteno criminal street gang. In our judgment, this evidence was simply too detailed to qualify as "background information" under Sanchez as an appropriate subject of expert hearsay testimony. (Cf. Sanchez, supra, 63 Cal.4th at p. 676.) Therefore, Hoskins's testimony about the details of the offenses not contained in the conviction records of Villa Gomez, Cruz, Lopez, and Meza and about which Hoskins had no personal knowledge was inadmissible hearsay. (See Ochoa, supra, 7 Cal.App.5th at p. 583.)
Moreover, we reject the Attorney General's contention that this hearsay was not testimonial. Given the level of detail contained in Hoskins's testimony and that those details went to specific facts about the arrests and searches of those defendants, it seems clear that Hoskins's testimony was based on police reports memorializing those events. As such, they were testimonial and should not have been admitted into evidence. (Sanchez, supra, 63 Cal.4th at p. 694; Ochoa, supra, 7 Cal.App.5th at p. 583.) We turn now to whether admission of that evidence was prejudicial.
Ramirez does not object to admission of the certified conviction records used to prove the predicate offenses. Instead, he focuses on the details supplied by Hoskins's testimony and argues they generally prejudiced the jury against him and weakened his defense that he engaged in the sale of narcotics solely for his personal benefit.
We review violations of the confrontation clause for harmless error using the Chapman standard. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912.) "A violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show beyond a reasonable doubt that the error did not contribute to the verdict obtained." (People v. Pettie (2017) 16 Cal.App.5th 23, 64.) " ' "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." ' " (People v. Pearson (2013) 56 Cal.4th 393, 463.)
In considering whether the People proved beyond a reasonable doubt the pattern of criminal activity, the jury was not limited to the predicate crimes introduced through Hoskins. (See Lara, supra, 9 Cal.App.5th at p. 332.) We observe that the jury had before it sufficient evidence of the predicate offenses, even disregarding the evidence with respect to the convictions of Villa Gomez, Cruz, Lopez, and Meza. The jury heard admissible evidence that Ramirez himself, Perez, and Gabriel Leyva all were members of the Norteno criminal street gang. Ramirez does not object to admission of the certified records of their convictions or assert these offenses were insufficient to establish the pattern of criminal activity required for a conviction under the STEP Act. Therefore, the improperly admitted evidence did not prejudice Ramirez by supplying the only evidence of a necessary element of the gang charges. (Cf. id. at p. 337 [reversing the gang conviction because "without the improperly admitted testimonial hearsay regarding the missing predicate offense, the prosecution would not have proved every element of either the gang crime or the gang enhancement"].)
We are not persuaded that the inadmissible details about which Hoskins testified raise a reasonable doubt whether the evidence contributed to the verdict. The jury heard significant admissible evidence about the activities of the Norteno criminal street gang in Salinas. For example, the jury heard multiple intercepted telephone calls about "monthlies," and they heard testimony (to which Ramirez does not object on appeal) that the payment of monthly taxes was an integral component of the narcotics activities of the Norteno gang in Salinas.
Furthermore, there was overwhelming evidence that Ramirez himself was an active member of the Norteno criminal street gang. Ramirez had multiple Norteno tattoos on his body, told Hoskins he was a gang member, and was previously convicted of a gang crime.
Finally, the inadmissible evidence formed only a small part of the prosecution's case. The evidence at trial focused on the intercepted phone calls and surveillance evidence. The testimony with respect to the predicate offenses committed by Villa Gomez, Cruz, Lopez, and Meza was the subject of a short portion of one witness's testimony, and neither attorney mentioned the details of those crimes in his closing argument. If anything, Ramirez's argument that he was not engaging in drug dealing for the benefit of the gang may have benefitted from the contrast with the gang evidence recounted by Hoskins associated with the individuals who had committed the predicate crimes. For example, Hoskins described that Villa Gomez and Cruz were found in possession of methamphetamine, whereas the investigators did not find any narcotics in Ramirez's possession. The police found "a large amount of Norteno gang indicia" in Lopez's room but the jury heard no evidence the investigators discovered gang indicia in Ramirez's possession during the course of the wiretap investigation.
For these reasons, we conclude the testimonial hearsay Hoskins recounted with respect to the predicate offenses committed by Villa Gomez, Cruz, Lopez, and Meza was harmless beyond a reasonable doubt and therefore not reversible error.
B. Whether Admission of Detective Pinon's Opinion Testimony Constituted Prejudicial Error
Ramirez contends the trial court abused its discretion and violated his due process rights when it admitted Deputy Pinon's opinion testimony that Perez sold methamphetamine to Ramirez on April 6 and April 23. He maintains "Pinon's testimony that Perez sold [Ramirez] methamphetamine was tantamount to testifying as to [Ramirez's] guilt." He argues this testimony violated his due process rights because it made the trial "fundamentally unfair" and relieved the prosecutor of proving guilt beyond a reasonable doubt.
Ramirez contends he was prejudiced by the admission of this statement under both state and federal standards because the jury would have given Pinon's testimony extra weight because of his expertise and because the defense attacked the accuracy and legitimacy of the wire intercepts that formed the only other evidence of Perez's sale of illegal drugs to Ramirez. Ramirez points out that none of the percipient witnesses testified to having observed a hand-to-hand transaction between Ramirez and Perez.
The Attorney General agrees that an expert witness may not express an opinion on a defendant's guilt and does not assert that Pinon's testimony that Perez sold narcotics to Ramirez was admissible. However, the Attorney General contends that any error was a violation of state—rather than federal constitutional—law because the statement did not render Ramirez's trial "fundamentally unfair." The Attorney General additionally asserts that any error was harmless.
1. Factual Background
After he had given his testimony about the wiretap and surveillance evidence, Pinon testified as an expert "as to whether controlled substances are being possessed for the purposes of furnishing or sales." He testified it was common for narcotics sellers to avoid referring to an illegal drug by its name. The prosecutor and Pinon had the following exchange:
"[Prosecutor] Now, do you have an opinion as to whether Jaime Perez was selling or furnishing methamphetamine between April 6, 2013 and April 23, 2013?
"[Pinon] Yes, I do.
"[Prosecutor] What is that opinion?
"[Pinon] That opinion is he was selling narcotics. He was providing narcotics to Omar Ramirez on two occasions. And this is based off the fact that two telephone calls, conversations -
"[Prosecutor] Let me stop you there. You have an opinion. Okay. [¶] So did you - - well, Jaime Perez was selling or furnishing to Omar Ramirez you said; correct?
The defense at trial objected to this testimony on the ground that it "goes to the ultimate question." The trial court overruled the objection. On appeal, Ramirez challenges the trial court's ruling that Pinon's testimony that Perez was selling drugs to Ramirez was admissible.
We note that Pinon later testified, based on the conversations heard between Ramirez and Perez on the wiretap, "it was [clear] to [him] that Jaime Perez was supplying Omar Ramirez with narcotics." Ramirez did not object to this testimony in the trial court, and he does not specifically challenge it on appeal. --------
2. Legal Analysis
"[A] trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. [Citation.] 'Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.] Otherwise, a harmless error standard applies." (People v. Spence (2012) 212 Cal.App.4th 478, 509 (Spence).)
Expert witnesses may provide testimony that "embrace[s] an ultimate issue in the case," but they "may not offer their legal conclusions to the jury." (Spence, supra, 212 Cal.App.4th at p. 507.) " 'A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] "Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." ' " (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) There is a "critical difference" "between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves." (Id. at p. 1049.)
The prosecutor's question to Pinon was not phrased in the form of a hypothetical. Instead, Pinon testified directly about Ramirez's guilt. This testimony was inadmissible, and the trial court abused its discretion when it denied the motion to strike it. (See Vang, supra, 52 Cal.4th at p. 1048.) We turn now to whether admission of this evidence constituted prejudicial error.
Ramirez contends admission of this testimony violated his due process rights and rendered his trial " 'arbitrary and fundamentally unfair' " because the jury would necessarily have given the expert's testimony undue weight. We disagree that Ramirez has shown a violation of his due process rights. Pinon's inadmissible opinion that Perez sold drugs to Ramirez formed only a small part of Pinon's testimony. In addition, the jury was specifically instructed that it must consider the expert opinions, but it was "not required to accept them as true or correct" and it may "disregard any opinion that [it found] unbelievable, unreasonable, or unsupported by the evidence." (CALCRIM No. 332.) We presume the jury followed the jury instructions it was given.
The jury was able to listen to the recorded phone calls and text messages between Perez and Ramirez and judge for itself whether the prosecution had met its burden of proof. Defense counsel vigorously attacked both the accuracy of the intercepted phone calls and Pinon's competence, eliciting in cross-examination a number of errors Pinon had made with respect to wiretap reports submitted to the court, including reports related to the wiretap of Perez's phone number. In response to these questions, Pinon admitted he made mistakes in his reporting to the court. In light of this record, we do not agree with Ramirez's contention that the jury bypassed its own factfinding responsibilities and simply relied upon Pinon's assertion that Perez sold narcotics to Ramirez. We conclude Ramirez's due process rights were not violated by admission of this testimony.
We also reject Ramirez's contention that it is reasonably probably that he would not have been convicted of conspiracy to sell methamphetamine had the trial court excluded this testimony. The inadmissible testimony was brief, and the jury heard a significant amount of evidence that Perez and Ramirez had agreed to engage in a narcotics transaction. The jury heard and saw calls and texts in which Ramirez and Perez arranged on April 23 to meet at B.J.'s restaurant and discussed a " 'half.' " That day, the police seized 13.66 grams of methamphetamine from Perez, consistent with the communications between the two men. While the defense challenged this evidence, the jury was entitled to credit it, which it plainly did. We are not persuaded that the inadmissible statements by Pinon that in his opinion Perez was selling methamphetamine to Ramirez had anything other than a negligible effect, if any, on the jury's consideration of the evidence. (See People v. Leonard (2014) 228 Cal.App.4th 465, 493-494.)
We reach the same conclusion with respect to Ramirez's conviction of the gang charge in count 5. There was a significant amount of evidence that both Ramirez and Perez were members of the Norteno criminal street gang. Pinon's inadmissible opinion that they were engaging in drug sales together was harmless in light of the other evidence elicited at trial.
C. Ramirez's Challenges to his Sentence
1. Section 654
Ramirez contends that the trial court should have stayed the punishment on count 3 (possession of methamphetamine for sale) in light of his conviction of count 2 (conspiracy to sell methamphetamine with DeLaRosa) and should have stayed the punishment on count 5 (street terrorism) in light of his conviction of count 1 (conspiracy to sell methamphetamine with Perez). With respect to counts 2 and 3, Ramirez maintains that "the conspiracy had no objective other than the charged crimes" and therefore could not be separately punished. Ramirez contends he cannot be separately punished for counts 1 and 5 because they both were "based on Perez's two sales or offers to sell methamphetamine to [Ramirez], and the prosecutor argued in closing argument that these transactions were the basis of count ."
a. Factual Background
At sentencing, with respect to count 1, the trial court said, "the conspiracy to sell methamphetamine was during a time period of early April, April the 2nd through the 23rd." The court said of count 2, "conspiracy to sell, was actually a separate time period, the 23rd through the 29th of April, and specifically related to phone calls with Maria [DeLaRosa]. So it was a different set of phone calls, a different type of phone calls. The phone calls in the earlier part of April related more to the general operation and structure of sales and taxing of sales of transactions." As to count 3, the trial court found it "is separate and apart from the two conspiracy charges. The conspiracy charges are the things that preceded the actual sale and preceded the actual transactions. I do find that they are separate and apart, as I say, from the transactions. [¶] 11378 in Count 3 is a drug transaction that was well behind the conspiracy charge in Count 2. [¶] That is, was charged as to - - Count 3 was charged as to April the 25th through the 29th." The court summarized, "So these all occurred at different times and places with different transactions. And as a result, the Court is going to sentence consecutively."
On count 1, the trial court imposed a base term of 8 years' imprisonment and a consecutive four-year term for the gang allegation for a total term of 12 years. The trial court imposed a consecutive sentence of two years on count 2 and a consecutive one-year term for that count's gang enhancement, for a total consecutive sentence of three years on count 2. On count 3, the trial court imposed a consecutive term of 16 months and a consecutive one-year term for the gang enhancement, for a total consecutive sentence of two years and four months on that count. On count 4, the court imposed the middle term of three years but stayed it pursuant to section 654. On count 5, the trial court imposed a two-year concurrent sentence. The trial court imposed an additional five-year term for the section 667, subdivision (a) enhancement for a total aggregate term of 22 years and four months. Other than the statements quoted above, the court at sentencing did not make any explicit factual findings relevant to the application of section 654.
b. General Principles of Section 654
Section 654, subdivision (a) provides "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Application of this statute "requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Only if the case involves more than one act does a court consider whether the case involves a course of conduct. (Ibid.) "At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act." (Id. at p. 312.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
If the convictions involve more than one act, the court reaches "step two of the section 654 analysis: whether the [course of conduct] involved multiple intents and objectives." (Corpening, supra, 2 Cal.5th at p. 316.) Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Under section 654, "a defendant may not be sentenced 'for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense.' " (People v. Ramirez (1987) 189 Cal.App.3d 603, 615.)
"[E]ven if a course of conduct is ' "directed to one objective," ' it may ' "give rise to multiple violations and punishment" ' if it is ' "divisible in time." ' [Citation.] 'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Kopp (2019) 38 Cal.App.5th 47, 90 (Kopp), review granted on another issue Nov. 13, 2019, S257844.)
" 'The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.' " [Citation.] A court's expressed or implied findings on this point must be upheld if supported by substantial evidence. [Citation.] This requires us to view the evidence in the light most favorable to the sentencing order and presume the existence of facts a trier of fact could reasonably deduce from the evidence." (Kopp, supra, 38 Cal.App.5th at p. 91.)
c. Legal Analysis
We first consider whether the trial court erred in not staying the punishment on count 3 (possession of methamphetamine for sale) in light of Ramirez's conviction and punishment for count 2 (conspiracy to sell methamphetamine with DeLaRosa) and then turn to the trial court's imposition of punishment on count 5 (the gang crime) and on count 1 (conspiracy to sell methamphetamine with Perez).
i. Counts 2 and 3
Turning to "step one" of the section 654 analysis, and viewing the evidence in the light most favorable to the sentencing order, we conclude the convictions for counts 2 and 3 were not based on a single physical act. Count 2 charged Ramirez with conspiring with DeLaRosa to sell methamphetamine between April 23 and April 29. Count 3 charged Ramirez with possession of methamphetamine for sale between April 25 and 29.
The jury was instructed on six potential overt acts for count 2, one of which was described as "hand to hand exchange between Ramirez and Maria DelaRosa on April 25, 2013" and another as "hand to hand exchange between Ramirez and DelaRosa on April 29, 2013." The other four overt acts were not themselves narcotics transactions.
With respect to the overt acts, the jury was instructed "An overt act is an act by one or more members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself. [¶] For each Count 1 and Count 2 you must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts." As described above, there was evidence from which the jury could find beyond a reasonable doubt that Ramirez possessed methamphetamine on both April 25 and on April 29.
Because the jurors were instructed on multiple overt acts for count 2 and because there were two possible acts that formed the basis of the conviction for 3, there is nothing in the record that leads us to the conclusion that each juror determined that the overt act in count 2 was the same act as Ramirez's possession of methamphetamine in count 3. Therefore, the record does not establish that counts 2 and 3 were accomplished by a single act.
Turning to "step two" of the section 654 analysis, we agree that counts 2 and 3 shared a single criminal objective—namely the sale of methamphetamine. Although this conclusion would ordinarily bar multiple punishments for the two crimes pursuant to section 654, "multiple punishments are permitted based on a course of conduct divisible in time, even if directed at one objective." (Kopp, supra, 38 Cal.App.5th at p. 92.) The trial court expressly concluded that the crimes committed in counts 2 and 3 occurred at different times, and Ramirez does not contend that this conclusion is unsupported by substantial evidence. Ramirez does, however, challenge the trial court's authority to make this finding. While Ramirez acknowledges the trial court is entitled to make any necessary factual findings not already made by the jury, he asserts that "it was not known to the court whether the jury relied on April 25 to support the conspiracy" and implies, without citation to authority, that the trial court was therefore precluded from drawing this conclusion. We are not persuaded.
The trial court has significant authority to draw factual conclusions under section 654. " 'The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.' " (Kopp, supra, 38 Cal.App.5th at p. 91.) While the trial court could not draw a factual conclusion in the face of a contrary finding by a jury, Ramirez cites no authority for the proposition that the trial court cannot make a factual finding under section 654 supported by substantial evidence in the record and consistent with—even even if not compelled by—the jury's verdict.
Reviewing the evidence in the light most favorable to the sentencing order, we conclude substantial evidence supports the trial court's conclusion that Ramirez's crimes in counts 2 and 3 were divisible in time, and therefore the trial court did not err in imposing separate punishment on each count.
ii. Counts 1 and 5
Turning to "step one" of the section 654 analysis, and viewing the evidence in the light most favorable to the sentencing order, we conclude the convictions for counts 1 and 5 were not based on a single physical act. Count 1 charged Ramirez with conspiring with Perez to sell methamphetamine between April 2 and April 23. Count 5 charged Ramirez with street terrorism between April 2 and May 23.
The jury was instructed on four potential overt acts for count 1, all of which were taken by either Ramirez or Perez, each of which occurred on April 23, and one of which involved Perez's possession of methamphetamine on April 23. The jury was given the same legal instruction for finding the overt acts set out above in our discussion of counts 2 and 3.
With respect to participating in a criminal street gang, the charge in count 5, the jury was instructed, among other elements, that it must find Ramirez "willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] a. directly and actively committing a felony offense; [¶] OR [¶] b. aiding and abetting a felony offense." The jury was further instructed "[f]elonious criminal conduct means committing or attempting to commit any of the following crimes: Sale or offer to Sell a controlled Substance; Possession for Sale of a Controlled Substance."
Ramirez argues that "counts one and five were based on Perez's two sales or offers to sell methamphetamine to [Ramirez], and the prosecutor argued in closing argument that these transactions were the basis of count five." Relying on People v. Mesa (2012) 54 Cal.4th 191 (Mesa), Ramirez asserts section 654 prohibits punishment for both counts 1 and 5. The Attorney General counters that the jury could have found Ramirez guilty of count 5 based on his conversations with Garcia and Gabriel Leyva about "taxes," which Hoskins and Pinon testified were related to methamphetamine dealing by the Norteno criminal street gang. He contends that, because they were not necessarily based on a single act, counts 1 and 5 could lawfully be punished separately under section 654. Ramirez replies that the jury was not instructed that "felonious criminal conduct included conversations about taxes and therefore did not make such a finding."
" '[S]ection 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," [citation] and (2) the underlying felony that is used to satisfy this element of gang participation.' " (Mesa, supra, 54 Cal.4th at pp. 197-198.) However, multiple punishment may be imposed under section 654 for multiple acts. (See id. at p. 199 ["Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts."].)
Viewing the evidence in the light most favorable to the sentencing order and presuming the existence of facts a trier of fact could reasonably deduce from the evidence, we agree with the Attorney General that substantial evidence supports the conclusion that counts 1 and 5 were based on separate acts. The overt acts for count 1 were limited to April 23, and the conspiracy was between Ramirez and Perez. However, count 5 extended to Ramirez's willfully assisting, furthering, or promoting felonious conduct (i.e., selling, offering to sell, or possessing for sale of a controlled substance) for any members of the Norteno gang between April 2 and May 23. The jury heard evidence that on April 2, Ramirez discussed with Gabriel Leyva, an active Norteno gang member, a conversation about where the "monthlies" should be paid, which Pinon testified was a reference to "monthly dues or weekly dues based on individuals who are selling narcotics from the Norteno criminal street gang." The jury also heard a call from May 14 between Ramirez and Garcia, a "regimental commander of the Monterey County area" for the Norteno criminal street gang, in which they discussed where the "monthlies" should be paid.
Therefore, there was sufficient evidence from which the jury could have convicted Ramirez of count 5 based on acts occurring on April 2 or May 14 distinct from the conspiracy to sell methamphetamine with Perez charged in count 1. Furthermore, this conduct—even if it shared a single objective—was divisible in time and therefore subject to multiple punishment. (Kopp, supra, 38 Cal.App.5th at p. 92.) The trial court did not err under section 654 in imposing multiple punishments on counts 1 and 5.
2. Enhancement under Section 667, subdivision (a)
The jury found true Ramirez's prior serious felony conviction allegation. (§ 667, subd. (a) (section 667(a)).) As part of Ramirez's sentence, the trial court imposed a consecutive five-year term for the prior serious felony. In light of subsequent legal changes, we agree with Ramirez and the Attorney General that Ramirez's case must be remanded for the trial court to exercise its discretion whether to strike the prior serious felony enhancement.
Senate Bill No. 1393, effective January 1, 2019, gives the trial court discretion to strike the allegation under section 667(a)—an authority the trial court did not possess at the time it sentenced Ramirez—and therefore his case must be remanded to the trial court for it to consider whether to exercise its discretion to strike the enhancements pursuant to its authority under section 1385. (Stats. 2018, ch. 1013, §§ 1, 2; People v. Jones (2019) 32 Cal.App.5th 267, 272); People v. Rocha (2019) 32 Cal.App.5th 352, 360.) Senate Bill No. 1393's amendment to section 667(a) extends to "all defendants whose judgments are not final as of the amendment's effective date," and it therefore applies to Ramirez. (See Jones, at p. 273.) Nevertheless, "[w]e are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion." (Ibid.) Without a clear indication of the trial court's intent, remand is required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
We have reviewed the transcript of Ramirez's sentencing hearing. We do not believe that it clearly shows whether the trial court would have stricken the enhancement under section 667(a) if it had had the authority to do so. We therefore remand his case to the trial court so that it may hold a hearing to consider exercising its discretion to strike the prior conviction enhancement. (§ 667(a).) We express no opinion as to how the trial court should exercise its discretion.
The judgment is reversed and the matter is remanded to allow the trial court to exercise its discretion regarding the Penal Code section 667, subdivision (a) prior conviction enhancement. In all other respects, the judgment is affirmed. If the trial court decides the enhancement should be imposed, it shall reinstate Ramirez's original sentence; if the court decides the enhancement should be stricken, it shall resentence Ramirez accordingly and transmit an amended abstract of judgment to the Department of Corrections and Rehabilitation.
Elia, Acting P.J.