Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF18905, Matias R. Contreras (Retired Judge of the Imperial County S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
AARON, J.
I.
INTRODUCTION
Defendant Richard Armenta appeals from a judgment of conviction after a jury convicted him of murder in the first degree and conspiracy to commit murder. The jury also found true the special circumstance allegation that Armenta killed the victim in order to further the activities of a criminal street gang.
On appeal, Armenta contends that his conviction must be reversed because juror misconduct occurred in relation to an event in which the husband of one of the prosecution's witnesses was seen talking with two of the jurors. Alternatively, Armenta asserts that, at a minimum, the trial court should have conducted a hearing pursuant to Penal Code section 1120 to further investigate the possibility that juror misconduct occurred.
Armenta also contends that the trial court erroneously permitted the prosecutor to present prejudicial character evidence by allowing the prosecutor to ask questions of a defense witness that "called for inadmissible character evidence" in response. Armenta further maintains that the court erred in admitting in evidence the tape-recorded statements of that witness to the effect that Armenta was the type of person who would kill if someone were to cross him. In addition, Armenta argues that the trial court abused its discretion in admitting evidence of Armenta's prior conviction for street terrorism. Armenta also contends that the cumulative effect of the court's errors in allowing the prosecution to introduce evidence of his bad character and prior criminality was unduly prejudicial. Finally, Armenta contends that the evidence was insufficient to support the jury's true finding on the special circumstance gang allegation.
We conclude that the prosecution did not present sufficient evidence to support the jury's finding on the special circumstance gang allegation. We therefore reverse the special circumstance finding. We also conclude that even if the trial court erred in allowing the prosecutor to play the tape recording of a witness telling a detective that Armenta was the type of person who would kill someone if crossed, the admission of this evidence was not unduly prejudicial, and thus does not require reversal. We reject Armenta's other claims of error.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Pre-shooting events
On the evening of September 15, 2001, Mary Vasquez was driving to her sister's home near B Street in Brawley, California. She noticed Armenta standing near a parked car. Two or three other people were in the car, but Vasquez did not recognize them. Vasquez, who had worked at juvenile hall and was familiar with Brawley's street gangs, was concerned about Armenta's presence in the area because she knew that the area was the territory of the Broleno street gang, and also knew that Armenta associated with a rival street gang, Chicali. Vasquez approached Armenta to ask him what he was doing in the area, and he replied, "Don't worry. I'm not doing anything. I just stopped to take a piss."
At various time throughout the record, the witnesses refer to this street gang by the names "Broleno" and/or "Brole."
That night, Daniel Villa, an admitted gang member, went to Armenta's house in order to buy drugs from Armenta. Villa knew Armenta by the nickname "Widget." Armenta told Villa that he would sell Villa the drugs, but asked Villa to first accompany him to the liquor store to buy beer. Villa agreed to go with Armenta. Armenta did not stop at the liquor store, but instead, drove to the location of a house party in Brole gang territory. According to Villa, "a lot of gang members" were at the party. As Villa and Armenta drove by the house in Armenta's car, it appeared to Villa that the occupants of the house "recognized [Armenta's] car and they all turned around." Armenta asked Villa if Villa "would be willing to shoot" the people at the party if Armenta provided him with a gun. Villa did not respond.
Villa and Armenta returned to Armenta's house. Jose Gastelum, whom Villa knew by the moniker "Pookie, " and at least two other men, were at Armenta's house when Villa and Armenta returned. Armenta wanted to know if someone "would volunteer to do the shooting." Armenta did not say whom he wanted shot, but he mentioned having driven by the party where members of Brole were gathered. According to Villa, Gastelum stated that "he was going to do the job for his gang."
Armenta retrieved a black revolver and gave it to Gastelum. Gastelum unloaded the revolver, and Gastelum and Armenta cleaned the bullets and the gun with alcohol. Villa could not remember which of the two men reloaded the weapon, but knew that one of them had done so. Gastelum then put the weapon in his waistband so that the barrel was directed toward his feet. Gastelum and Armenta left the house and got into Armenta's mother's car, which was a different car from the car that Armenta had been driving earlier.
2. The shooting
Francisco Hernandez arrived at a house party at around nine or ten o'clock that evening. According to Hernandez, there were no gang members at the party, and he had not used any drugs that night. Hernandez was standing in the front yard when he saw "somebody coming down the street." Hernandez initially thought that the person coming down the street was one of his friends, so when the person indicated that he wanted Hernandez to open the front gate, Hernandez complied. The man then pulled out a gun and "opened fire."
In court, Hernandez identified Gastelum as the shooter, stating that he had "no doubt" that Gastelum was the gunman. Hernandez said that he had also recognized Gastelum as the shooter when the two crossed paths in jail. Hernandez had also identified Gastelum as the shooter during a photographic lineup.
Hernandez turned and ran inside the house. He did not realize that he had been shot until he noticed blood "pouring out of" his back. Hernandez saw his friend, Jesse Garcia, lying on the floor, bleeding from his head.
Brawley Police Department Officer Chris Espinoza received a radio call of a domestic violence incident on B Street in Brawley at around 1:15 a.m. on September 16, 2001. While enroute to the scene, another radio call indicated that the incident was in fact a shooting. When Espinoza arrived at the scene, he saw Garcia lying face down at the front door of the home, bleeding from a gunshot wound to his forehead.
Paramedics arrived and began attending to Garcia. They eventually transported Garcia to the hospital. Garcia spent three months in a coma, and died on December 18, 2001.
3. Additional testimony about the incident
Villa stayed at Armenta's house after Gastelum and Armenta drove off in Armenta's mother's car. Villa was listening to a police scanner in Armenta's bedroom when the scanner picked up a police conversation concerning a shooting that had occurred on B Street. "[L]ess than two or three minutes" later, Gastelum and Armenta returned.
According to Villa, Gastelum was happy that he and Armenta had done "something good." Gastelum reported "how he got [out of] the car and knocked on the door of a house and he fired at someone saying the name of his gang." Gastelum said that he had fired twice, and that he thought he had hit two people. After Gastelum made these statements, he told the individuals in the room, including Villa, that "if someone there said something, that that same thing would happen to them." Villa saw Gastelum and Armenta take the bullets out of the gun, and watched as Armenta took the gun to another room. Villa left without purchasing any drugs.
Villa did not immediately go to the police to tell them what he knew because he feared for his life and was worried about the safety of his family and his girlfriend. A couple of years later, while Villa was serving time in a federal prison, he wrote two letters to the Federal Bureau of Investigation stating that he had information about a crime committed by Armenta and Gastelum.
Israel Salazar, a Chicali member who left Imperial County and the Chicali gang after testifying at the preliminary hearing, testified that on the evening of the shooting, Armenta stopped by his house at about 8:00 or 9:00 p.m. Armenta asked Salazar to accompany him to a party of Brolenos on B Street. Armenta wanted to catch the Brolenos "slipping" (i.e., unaware) and "go blast them." Because Salazar was involved in an argument with his wife at the time, he did not agree to go with Armenta.
According to Salazar, Armenta had been saying for years that someone should retaliate against the Brolenos for the shooting of Peter Castellanos in 1997. Castellanos was permanently paralyzed as a result of that shooting.
Armenta returned to Salazar's home a few hours later and asked Salazar to hide a gun. Armenta told Salazar that "[s]ome shit went down on B Street." Salazar agreed to keep the gun for Armenta for a little while. Salazar said that he did not see where Armenta hid the gun at that time.
The following day, Salazar asked a mutual friend to tell Armenta to retrieve his gun. When Salazar and Armenta spoke by telephone, Armenta told Salazar that Gastelum had done the shooting, that someone had been shot in the head, and that "'[s]omebody [had been] paid back for what happened to Peter Boy [Castellanos]."
Armenta returned to Salazar's house a few days later. He wanted Salazar to continue to keep the gun for him. Salazar suggested that Armenta could hide the gun in a wood pile outside of Salazar's house. Armenta hid the gun and ammunition in the wood pile. Armenta eventually returned with two other men to retrieve the gun.
While in jail, Salazar saw both Armenta and Gastelum when all three were in visitation rooms at the jail at the same time. Gastelum told Salazar to tell the judge that he "was just bluffing, " and "was high, just talking nonsense." Armenta was quiet, but "just said it was serious shit."
Apparently the inmates could see one another despite being in separate visiting rooms because the rooms were divided by glass windows.
Chicali Brasas member Luis Santoyo, who was known by the moniker "Bullet, " testified that he had been at Armenta's house in 2003 when Armenta mentioned a shooting. Gastelum was also present. Armenta seemed "[h]appy" about the shooting, and told Santoyo that "he wanted to get someone back [for] my friend Pete that got shot." Armenta said that "he parked the car and [Gastelum] got off and he had did what he did and came back to the car, " after which "they took off."
Hernandez repeatedly refused to talk with investigators, although California Department of Justice Special Agent Jose Soto repeatedly contacted Hernandez while Hernandez was in jail for receiving stolen property. Soto met with Hernandez on four or five occasions. Hernandez eventually told Soto what had happened on the night of the shooting, but would not identify the shooter because he did not want to be a "snitch." Finally, in December 2006, Hernandez identified Gastelum as the shooter.
4. Gang evidence
The prosecution called Brawley Police Sergeant Perry Monita to testify as a gang expert. Monita explained that the two major gangs in Brawley are the Brole and the Chicali. Both gangs have between 30 and 50 active members. A subset of Chicali, called Chicali Brasas, was formed sometime around 2000 or 2002.
Monita opined that the Garcia/Hernandez shooting was done in retaliation for the Brole shooting of Peter Castellanos in 1997. According to Monita, the Castellanos shooting was gang-related. Based on Monita's discussions with Chicali members, Monita learned that the Chicali "were upset about that one." Monita also testified that the home where the Garcia and Hernandez shooting took place was known as a Brole "hang out" and was located "within the Brole territory."
Monita testified that at one point in time, Armenta had admitted that he was a member of Chicali. In Monita's opinion, Armenta was actively involved in the Chicali gang in September of 2001. Specifically, Armenta was affiliated with the Chicali subset Chicali Brasas.
5. The defense
Armenta offered evidence that he had suffered a severe brain injury as a child. After having Armenta undergo testing, the Social Security Administration granted him disability benefits. A psychiatrist testified that Armenta suffered from dementia due to head trauma, mild mental retardation, and a mood disorder. The psychiatrist was of the view that, given Armenta's level of mental impairment, he would not be able to "plan out a complex crime."
Armenta also called family and friends as witnesses to testify that he was at home on the night of the shooting.
Armenta offered the testimony of Lewis Yablonsky, a sociology professor, who stated that in his opinion, Armenta was no longer a gang member at the time of the shooting. California Youth Authority records indicated that Armenta had either voluntarily dropped out of the gang or had been assaulted by gang members, which led to his being placed in protective custody, in December 1998. Placement in protective custody indicated that Armenta had been labeled as a snitch, which was probably what caused him to be assaulted. According to Yablonsky, because it did not appear that Armenta was in a gang at the time of the shooting, it was highly unlikely that he had been involved in a gang-related homicide.
B. Procedural background
By second amended information filed January 11, 2007, Armenta was charged with murder (Pen. Code, § 187, subd. (a) (count 1)), and conspiracy to commit murder (§ 182, subd. (a)(1)/§ 187, subd. (a) (count 2)), with respect to victim Jesse Garcia. The information further alleged the special circumstance that Armenta and Gastelum intentionally killed Garcia while they were active participants in a street gang. (§ 190.2, subd. (a)(22).) The information also alleged as enhancements that Armenta and Gastelum committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); that a principal personally used a firearm (§ 12022.53, subd. (b), § 12022.5, subd. (a)(1)); that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) and (e)(1)); and that a principal personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (d) and (e)(1)).
Further statutory references are to the Penal Code unless otherwise indicated.
Later that year, on December 6, 2007, the grand jury returned an amended indictment accusing Armenta and Gastelum of conspiracy to murder an unidentified victim (§ 182, subd. (a)(1)/187, subd. (a) (indictment count 1)), and of the attempted murder of Francisco Hernandez (§ 664/187 (indictment count 2)). As to both counts, the indictment alleged that the defendants committed the crimes for the benefit of a criminal street gang. As to count two, the indictment alleged firearm enhancements identical to the enhancements alleged in the information.
The case arising out of the indictment was consolidated with the case arising out of the information. Armenta pleaded not guilty to both counts of the information and denied the special circumstance and the enhancement allegations. He also pleaded not guilty to count one of the indictment and denied the corresponding enhancement allegation. Armenta filed a demurrer to count 2 of the indictment on statute of limitations grounds. The court sustained the demurrer and dismissed count 2 of the indictment.
The court's dismissal of count 2 of the indictment is not reflected in court minutes or in any transcript provided on appeal. However, on June 10, 2008, Armenta's attorney said in court, "Count 2 has been dismissed.... We did a demurrer that was sustained without leave to amend as to Count 2 based on the statute of limitations." The prosecutor agreed that defense counsel's description of the procedural history of count 2 was "correct."
Prior to trial, the court noted that count 1 of the indictment and count 2 of the information charged the same offense, i.e., conspiracy to commit Garcia's murder. The parties agreed that the court should advise the jury that Armenta was being charged with one count of conspiracy to commit murder and one count of murder.
On August 6, 2008, the jury convicted Armenta of first degree murder and conspiracy to commit murder. The jury also found true the gang special circumstance allegation that Armenta "did intentionally kill Jessie Garcia and the murder was carried out to further the activities of the criminal street gang."
The jury was not asked to make findings with respect to any of the alleged enhancements, including the gang enhancements and firearm enhancements.
On November 5, 2008, the trial court sentenced Armenta to 25 years to life in state prison, without the possibility of parole, on the first degree murder conviction. The court also sentenced Armenta to 25 years to life, without the possibility of parole, for the conviction for conspiracy to commit murder, but stayed that sentence pursuant to section 654.
The court imposed a term of 25 years to life without the possibility of parole based on the jury's true finding on the criminal street gang special circumstance allegation.
Armenta filed a timely notice of appeal on November 5, 2008.
III.
DISCUSSION
A. There was no juror misconduct and the trial court did not err in its handling of two jurors who interacted with a witness's husband
Armenta contends that "[j]uror misconduct occurred during the trial when two jurors were introduced to Mary Vasquez, a key prosecution witness, by her husband, and then engaged in friendly conversation with Mr. Vasquez and possibly with his wife as well prior to her testimony." In the alternative, Armenta contends that the trial court abused its discretion "by failing to conduct an adequate hearing regarding the contact between the jurors" and the witness and her husband. According to Armenta, the first error deprived him of his right to unbiased jurors, and the second deprived him of his right to an adequate appellate record.
1. Additional background
One afternoon during the prosecution's case-in-chief, the trial court took a recess for approximately 10 minutes. Upon returning to the courtroom, outside the presence of the jury, the prosecutor informed the trial court that Armenta's attorney had indicated to the prosecutor that he believed he had seen a prosecution witness, Mary Vasquez, "conversing with two jurors." The prosecutor told the court that she "immediately went out... to stop it." Vasquez informed the prosecutor that she had not spoken with any jury members, but that her husband had spoken with two jurors.
The trial court stated, "We're going to have to inquire and clear this up." The court proceeded to question each of the two jurors separately. The court engaged in the following colloquy with Juror 1:
"THE COURT:... I had some information that you were talking to an individual outside just a few minutes ago wearing your juror badge.
"JUROR NUMBER 1: Yes.
"THE COURT: Did they approach you, sir?
"JUROR NUMBER 1: Yeah. He told me he['d] seen me someplace before and couldn't remember.
"THE COURT: And?
"JUROR NUMBER 1: I didn't remember him.
"THE COURT: Okay. Was there anything else that he told you?
"JUROR NUMBER 1: No.
"THE COURT: Did anybody else talk to you?
"JUROR NUMBER 1: No. Just the gentlemen there.
"THE COURT: Okay. And that is all that he discussed with you?
"JUROR NUMBER 1: He said he['d] seen me someplace before. I told him where I work at. He said, okay. That's where he saw me. He used to bring dogs down there from the City.
"THE COURT: So you talked a little bit about that?
"JUROR NUMBER 1: That was it.
"THE COURT: I mean, you mentioned where you worked, how you might have seen him before?
"JUROR NUMBER 1: He might have seen me.
"THE COURT: Anything else?
"JUROR NUMBER 1: That's it."
After this exchange, the court permitted defense counsel to question Juror 1. Defense counsel asked Juror 1 if a lady sitting on the steps had conversed with him at all, to which Juror 1 answered "No." The court admonished Juror 1: "Don't talk to anybody about the case. Don't talk to witnesses, et cetera."
The court then called Juror 2 to the sidebar conference and engaged in the following colloquy with Juror 2:
"THE COURT:... [W]hen we were on our break, you were seen talking to some individuals outside.
"JUROR NUMBER 2: Yeah.
"THE COURT: Do you remember?
"JUROR NUMBER 2: I know who I was talking to. I know the guy. I guess he is married to one of the witnesses. I didn't know.
"THE COURT: One of the witnesses is married to
"JUROR NUMBER 2: To my friend.
"THE COURT: To the one you were talking to. How long a conversation did you have?
"JUROR NUMBER 2: Just hi and just asking me what I had. I said I was on jury duty.
"THE COURT: Did he ask you any questions?
"JUROR NUMBER 2: No.
"THE COURT: Did you ask him any questions?
"JUROR NUMBER 2: No. He just said he was there with his wife. She was there for a case, that she was there for a case or something. I don't know what it was.
"THE COURT: He didn't ask you anything about the case?
"JUROR NUMBER 2: No. Nothing.
"THE COURT: And you didn't tell him anything about the case?
"JUROR NUMBER 2: Huh-uh.
"THE COURT: Remember the admonition not to talk to anybody... about the case?
"JUROR NUMBER 2: I just saw him and went, hi.
[¶]... [¶]
"THE COURT: That's all we're doing right now, checking to make sure that no one is trying to talk to you about the case, you are not talking about the case. Just making sure. You did exactly what you are supposed to."
The court then asked defense counsel if he wished to question the juror. Defense counsel asked Juror 2 if the lady seated on the steps had spoken to him. Juror 2 responded, "No. She just spoke to her husband. I don't know her." Defense counsel then asked which one of the two, "wife or husband, " had approached him. Juror 2 said that the man had approached him to shake his hand because they know each other. Juror 2 stated that he knew the man from "[p]laying basketball, " and that the man "works in our city, ... Brawley [C]ity." When asked if he had told the man that he was a juror on a case, Juror 2 said that the man had asked him what he was doing there, and Juror 2 responded that he was on jury duty. The man did not say anything in response to Juror 2's statement that he was on jury duty, but instead "just talked to his wife" in Spanish.
The court stated, "It seems to me that it's okay, " but resolved to talk to Vasquez's husband to "caution him." The court said that what had occurred "was harmless, " but that the court did not "want this to happen again." The bailiff was unable to locate Vasquez's husband that day. The prosecutor informed the court that Vasquez and her husband may have left because Vasquez had been told that she would not be called as a witness that day.
Several days later, defense counsel returned to this issue. Defense counsel stated:
"I would just like to say, Your Honor, when I looked out there, I saw the two witnesses, I think it was [Juror No. 1] and the young man who I think is [Juror No. 2]. The husband of Mary Vasquez was extending his hand out to shake the hand of those two individuals.
"He then introduced his wife, Mary Vasquez, to at least the young man, [Juror No. 2]. I think it was obvious to the witness, Mary Vasquez, and her husband that this was the department that they were going to be testifying in. And they went out of their way to make contact with jurors that were going to hear her testimony.
"I think that was a violation of 1122 of the Penal Code, which is the admonishment section, not in the sense that the jurors violated that section, but I believe it was the intent of the witness here to ingratiate herself through her husband with jurors...."
Defense counsel contended that Vasquez had committed misconduct, and that the court either should sanction the prosecution by barring Vasquez from testifying, or should "giv[e] some type of admonishment to the jury that that was an improper contact by the witness and that under no circumstances should that witness have attempted to contact them." The prosecutor argued that defense counsel was now claiming that something different had occurred than what defense counsel had originally represented.
The trial court stated:
"But, you know, the jurors, those two particular jurors were questioned and admonished. And then I repeated the instruction to the other jurors. I think I underlined once again what they were to do with respect to people attempting to talk to them about the case. In this particular situation, there was no discussion about the case at all. Apparently one or two of the jurors knew the husband who is, of course – his name wasn't mentioned when we inquired as to whether they knew the witnesses or not.
"It wasn't necessarily the witness that attempted to directly ingratiate herself with the jurors. I don't know what the husband had in mind. That's one thing that I intended to discuss with him. He hasn't been available up to this point. Before she testifies, I certainly would want to inquire further. I suspect he will be there.
"In any event, I don't know that at this point I would bar Ms. Vasquez from testifying on the information that we have, the information we got from the jurors who were directly involved in this contact. At most I would think that perhaps inquiring a little bit further with the husband might produce some kind of information, but I think that as it stands now I don't feel it's necessary to take any steps against Ms. Vasquez at this time. I don't think that would be necessary.
"I think that if she does take the stand and testifie[s] that, you know, under cross-examination a lot of questions could be posed to her which might clarify this as well. At this point, I don't think that any further action from the Court is required. I would, though, as I indicated, like to speak to the husband to inquire. Although I don't even think that is necessary, absolutely necessary, but I think it would perhaps help things."
The following day, defense counsel again raised the issue. Defense counsel suggested that Vasquez's husband may have contacted all of the jurors, and asked that the court inquire of the entire jury to determine whether any other contact had occurred. The court responded, "I'm going to make a general inquiry about this just to make sure that nothing has happened because, again, if you are correct, Mr. Breeze, the Court wants to know about this and I will make an inquiry. [¶] I don't think, again, with respect to Mr. Vasquez'[s] approach of the jurors, I don't know that that can really be attributed to Mrs. Vasquez. I will inquire about the other jurors."
As soon as the prosecutor called Vasquez to testify, the trial court said to the jury:
"Ladies and gentlemen, last week I had occasion to talk to two jurors about possible, you know, discussion with people that were witnesses or related to witnesses. And I would inquire at this time, just out of an abundance of caution, have any others of you been approached by anybody wanting to discuss this case or anybody that you maybe identified as a relative of a witness or something of that nature?"
The trial court received no response from any of the jurors. The court then reiterated its admonishment to the jury:
"Remember every time you leave, I remind you not to talk to the people at the counsel table, witnesses about the case. And, again, many times any contacts are relatively harmless, but if someone sees you talking to someone, it could be misconstrued. [¶] So please, be very careful. When you are walking through the courthouse, be sure you keep your juror badge on. Even outside the environment of the Court, be very careful. Of course, remember not to read about the case in the newspapers or any other media of any kind. Please keep that in mind."
Defense counsel did not cross-examine Vasquez regarding the incident involving her husband and the two jurors.
2. There was no juror misconduct
Armenta contends that "juror misconduct occurred when the two jurors spoke to Mr. Vasquez, who introduced one or both of the jurors to his wife, Mary Vasquez, a key prosecution witness." The record does not support Armenta's description of what occurred, or his conclusion that what occurred amounts to juror misconduct.
In general, juror misconduct occurs when there is a direct violation of the juror's oaths, duties, and instructions. (In re Hamilton (1999) 20 Cal.4th 273, 294; see also § 1122, subd. (b).) Under section 1122, subdivision (b), jurors commit misconduct when they "converse among themselves, or with anyone else, on any subject connected with the trial, or... form or express any opinion thereon before the cause is finally submitted to them."
Armenta maintains that "the two jurors spoke to Mr. Vasquez, who introduced one or both of the jurors to his wife, Mary Vasquez." Armenta later describes the encounter in the following manner: "Here, Mary Vasquez accompanied her husband as he spoke to the two jurors. Also, he apparently introduced one or both of them to her, and she shook hands with them." Armenta contends that "the amiable contact between the jurors and a key prosecution witness amounts to juror misconduct." However, the record reflects that Mary Vasquez had no contact at all with jurors.
Both jurors were asked whether they had spoken with Mary Vasquez, and both jurors said that they had not. Although defense counsel claimed to have seen the witness's husband introduce her to the two jurors, the juror's responses to the court's questions and defense counsel's question contradict this claim. Both jurors very clearly denied having had any contact with Mary Vasquez.
Although the fact that Mary Vasquez's husband contacted two jurors is unfortunate, the husband was not a witness in the case and the jurors did not talk with him about the case. The jurors' brief interactions with the husband did not violate the instructions that the jurors had been given, and is not akin to the direct juror-witness conversations that were found to constitute juror misconduct in People v. Ryner (1985) 164 Cal.App.3d 1075 (Ryner), a case on which Armenta heavily relies.
In Ryner, seven jurors engaged in a hallway conversation with a police officer who was a prosecution witness, during a morning recess. The jurors and officer did not discuss the case or the officer's testimony, but rather, talked about sports and the officer's experiences on the police force and in the military. (Ryner, supra, 164 Cal.App.3d at pp. 1080-1081.) The Ryner court concluded that this conversation constituted juror misconduct. (Id. at p. 1083.) What occurred here is not like what occurred in Ryner. The two jurors in question in this case did not have contact or a conversation with a prosecution witness. Contrary to Armenta's contention, there is no evidence that "Vasquez had ingratiated herself to the jurors." We reject his assertion that juror misconduct occurred.
The Ryner court ultimately determined that although the conversation between the jurors and the prosecution witness was misconduct, it was "so brief and innocuous that we regard it as trivial misconduct, " and not prejudicial. (Ryner, supra, 164 Cal.App.3d at p. 1083.)
3. The trial court's inquiry into what occurred between the jurors, the witness, and the witness's husband was sufficient
Armenta contends, in the alternative, that the trial court abused its discretion in not inquiring further into whether there was any contact between Mary Vasquez and the two jurors. Specifically, Armenta claims that "[t]he court abused its discretion by failing to conduct a thorough inquiry once it learned that potential misconduct had occurred and thereby [failing to] determine fully the facts surrounding the interaction between Vasquez and the jurors." Armenta suggests that the trial court should have conducted a hearing pursuant to section 1120 regarding defense counsel's claim that he witnessed Mary Vasquez engaging with the jurors. Section 1120 provides:
"If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declares a fact which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties in order that the court may determine whether good cause exists for his discharge as a juror."
Armenta concedes that in this case, there is nothing that would indicate that any of the jurors possessed personal knowledge about the case, and that section 1120 does not specifically apply. However, Armenta relies on People v. Burgener (1986) 41 Cal.3d 505 (Burgener) overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754, in which the Supreme Court ruled, "[O]nce the court is put on notice of the possibility a juror is subject to improper influences it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error. [Citation.]" (Id. at p. 520.) In Burgener, the jury foreman advised the trial court that one of the jurors appeared to be intoxicated during jury deliberations. (Id. at p. 519.) Because the trial court had the discretion under section 1123 to discharge a juror who was unable to perform his or her duty, the court also possessed the discretion to hold a hearing to "determine whether good cause to discharge the juror exists." (Id. at pp. 519-520.) A court that fails "to conduct a hearing sufficient to determine whether good cause to discharge the juror exists" abuses its discretion. (Id. at p. 520.)
Armenta complains that the procedure that the trial court utilized was inadequate because, although the court "did ask both jurors to relate what had transpired, " the court "did not require either juror to testify under oath"; did not "ask the bailiff to relate what he had witnessed about the interaction, even though the officer acknowledged being 'out there when the whole thing with the jurors went down'"; and did not "inquire of either Mr. Vasquez or the witness herself, Mary Vasquez, and hear their account of the event." He complains that "[u]nder these circumstances, the court failed to make sufficient inquiry to determine the extent and nature of the contact between the jurors and Mr. and Mrs. Vasquez."
There is no support in the record or in the case law for Armenta's contention that the trial court was required to conduct a formal hearing, or that the court's inquiry was insufficient. "A court on notice of the possibility of juror misconduct must undertake an inquiry sufficient '"to determine if the juror should be discharged and whether the impartiality of other jurors had been affected."' [Citations.]" (People v. Espinoza (1992) 3 Cal.4th 806, 822.) "While a hearing with sworn testimony by the juror is required by section 1120, it appears that a less formal inquiry is adequate to determine 'good cause' to discharge a juror under other circumstances." (People v. McNeal (1979) 90 Cal.App.3d 830, 837.)
In this case, the trial court's inquiry was sufficient for the court to determine that the jurors had not engaged in misconduct. Although the jurors were not officially sworn before the court questioned them, the court had no reason to distrust what the jurors said in response to direct questioning. The court had the opportunity to see the jurors and to judge their credibility. Based on this inquiry, the court determined that no misconduct had occurred. Under these circumstances, no additional inquiry was necessary.
Although Armenta complains that the trial court did not inquire of Mary Vasquez to get her version of what had occurred, the trial court clearly contemplated allowing defense counsel to question Vasquez about the incident during cross-examination, when she would have been under oath. The court gave defense counsel the opportunity to further explore "the nature of the contact between the jurors and Mr. and Mrs. Vasquez, " but counsel apparently chose not to ask Vasquez about the incident involving the jurors on cross-examination. The trial court did not abuse its discretion by proceeding in this manner.
B. The trial court did not commit prejudicial error in permitting the prosecution to elicit testimony from a witness going to that witness's fear of Armenta, and admit evidence of the witness's prior statements about Armenta's character
Armenta contends that the trial court erred in overruling defense counsel's objection to a question that the prosecutor posed to witness Carlos Landa, which, Armenta asserts, called for the witness to provide inadmissible character evidence. In questioning Landa about his desire not to testify, the prosecutor asked Landa whether he had previously told a police officer that Armenta would kill someone who crossed him. Landa denied having made this statement. Armenta contends that in posing this question, the prosecution was seeking to elicit unduly prejudicial evidence about Armenta's character that should not have been admitted.
Armenta further claims that the trial court abused its discretion under Evidence Code section 352 by admitting in evidence the tape recording of a statement that Landa made to police officers in which Landa said that Armenta was "the type" who would kill someone who crossed him. Armenta complains that the court should have redacted that portion of the statement because it constituted minimally probative, but highly prejudicial, character evidence. Finally, Armenta maintains that the trial court further abused its discretion in denying Armenta's motion for a mistrial based on the admission of this prejudicial character evidence.
1. Additional background
The prosecution called Luis Santoyo, a Chicali Brasas member, to testify about an incident that took place at Armenta's home in 2003, during which Armenta discussed the 2001 shooting. Santoyo testified that Armenta told him that after Armenta parked the car, Gastelum "got off and he had did what he did and came back to the car, " after which they "took off." Santoyo also testified that prior to trial and while he was incarcerated, he was approached by Carlos Landa, who was also incarcerated. Landa relayed to Santoyo the message that Armenta "said not to testify in this case, not to come to court." Santoyo also testified about a letter he received from Armenta in which Armenta said, among other things, "'el paro with what Kat told you.'" Santoyo explained that "el paro" means "[a] favor."
Santoyo identified Landa as the individual known as "Kat."
Defense counsel questioned Santoyo's veracity, asking him, "Now, you made this story up, haven't you?" Defense counsel attempted to suggest that Santoyo had made up the story because he wanted to "get back at Mr. Armenta because Mr. Armenta was trying to implicate [Santoyo] in a crime." Santoyo denied having made up the story.
After the prosecution rested, defense counsel gave an opening statement in which he told the jury, "Luis Santoyo got up here and lied to you, ladies and gentlemen." Defense counsel asserted that Landa would testify that "he never went to Luis Santoyo" to ask Santoyo "to lie for Richard Armenta." The defense called Landa as witness in an attempt to impeach Santoyo's testimony. Landa testified that he had "heard of" Santoyo, and said that he had been incarcerated with Santoyo. Landa further testified that Armenta had never contacted him to ask him to relay a message to Santoyo, and denied that he had approached Santoyo to ask him "to testify in a particular fashion" in this case.
On cross-examination, the prosecutor asked Landa if he had told Agent Soto that Armenta had tried to approach Landa to ask Landa to deliver a message. Landa acknowledged that he had met with Soto, but denied having said anything about delivering a message from Armenta. Landa testified, "I didn't say he approached me and tried to send me a message – to send a message." The prosecutor followed up: "Do you recall telling Agent Soto that when Mr. Armenta came to you, you kept trying not to listen because you didn't want any part of it?" After being interrupted by an objection, Landa eventually answered, "I don't have a good memory. I don't recall." The prosecutor asked some additional clarifying questions and then asked Landa, "Are you saying that you might have told [Soto that] Mr. Armenta tried to approach you to deliver a message?" Landa replied, "I didn't say that. I know what I said." The prosecutor asked, "You don't want to testify here today, do you?" Landa responded, "No, I don't." The prosecutor then asked, "In fact, you are afraid of Mr. Armenta, aren't you?" Landa responded, "What for?" After Landa provided this response, the following colloquy ensued:
"Q. Do you remember telling Agent Soto he [Armenta] will kill you if you cross him?
"A. I didn't say that.
"Q. You didn't say that?
"A. I didn't say he would kill me.
"Q. You didn't say he would kill somebody if they crossed him?
"A. I didn't say that.
"Q. Isn't it true that you said Richard Armenta wouldn't hesitate to shoot someone?
"A. I didn't say that."
At this point defense counsel objected, raising Evidence Code sections 1101 and 352, and referring to the testimony that the prosecutor was attempting to elicit as "[i]mproper character[] evidence." The court overruled defense counsel's objection. The prosecutor continued to ask Landa about what he had said to Agent Soto:
"Q. You can answer.
"A. I didn't say nothing like that. I didn't say his exact name or nothing.
"Q. So when Mr. Armenta was – when Agent Soto was talking to you about Mr. Armenta, you never said any of those statements?
"A. I said, 'I don't want to get involved. I'm not no messenger.' That's what I told him."
The prosecutor later sought to introduce the tape recording of the interview between Soto and Landa, to impeach Landa. Defense counsel argued that the tape recording contained Landa's highly prejudicial statement that, in defense counsel's words, "he considered Mr. Armenta to be a dangerous person who had killed people in the past. Therefore, he didn't want to have anything to do with him." The prosecutor argued that the reason she had asked Landa questions about his statement to Soto was because, when she had asked Landa if he was afraid of Armenta, Landa responded by asking why he would be, thereby implying that he did not fear Armenta. Landa also denied ever having said that Armenta was the type of person who would kill. The prosecutor was concerned that if the court did not allow her to present the statements that Landa made during his interview with Soto, it would "present an inaccurate picture to the jury" by "showing that [the prosecutor was] asking questions that aren't true."
After further argument from counsel, the prosecutor informed the court that she had "handed the interview, recorded interview, over to" defense counsel, and noted that she had not intended to call Landa, but that defense counsel chose to call Landa, even "after hearing the taped interview." The court said, "I think [the prosecutor] is right. [Landa] said, 'No, I'm not afraid of him. I wouldn't be afraid of him.' If the tape says that he's afraid of him, that he doesn't want to get involved anymore, I'll allow that."
The prosecutor called Agent Joseph Somenek to the witness stand and began to distribute transcripts of the tape recording to the jurors. Defense counsel objected, and, outside the presence of the jury, argued that he understood that the tape would be played but that no transcripts would be given to the jury. The parties argued about the use of the transcripts and again discussed the prejudicial effect of certain of the statements that Landa made on the tape recording. After reviewing the tape recording and the transcript, the court said, "This impeaches Mr. Landa's testimony in court. He knew where he was going with the message." Defense counsel responded, "I understand that, Your Honor. There is weighing here that the Court has to do under 352." The court replied,
According to Somenek, he was present with Agent Soto during the interview of Landa.
"Think about it. Why? Why did he deny every bit of this in court? My first reaction was, well, we can take care of this. We'll strike the language about what he thinks of Mr. Armenta's character, what he's heard. What he thinks about him, we'll strike that. The manipulation thing, yeah. Mr. Armenta is supposed to have such marginal intelligence that there is no way he can do this. [¶] I'll tell you, Mr. Armenta, you are a – you are not dumb by a long shot.... [¶] I think this also shows why Mr. Landa, when he gets on the stand, other than just not wanting to be a rat for reasons he doesn't want to testify [sic], and that is because he is afraid of Mr. Armenta. Whether it's true or not, I think it shows a state of mind that he is afraid and he didn't want to testify. I think that, yes, it's highly prejudicial, but this is the kind of evidence that I think can come in.
"It's prejudicial. I think the probative value of the issue of why Mr. Landa refused to even acknowledge that he had been approached, try to send a message, I think that it explains a lot and that it would help the jury evaluate Mr. Landa's testimony at this trial. So I'm going to allow the tape. I'm going to allow the transcript to be provided to the jurors."
The court ultimately concluded that the statements that Landa made to Soto during the interview "contradict his testimony in court." The court allowed the prosecutor to play the recording of Landa's interview to the jury, but ordered the prosecutor to redact a portion of the interview during which Landa made some statements about Armenta's ability to manipulate people because Landa had not been questioned about that issue at trial.
Agent Somenek was sworn and the prosecutor proceeded to ask him questions about the Landa interview. The prosecutor then played the tape recording of the interview for the jury. The recording and the transcript of the recording included the following portion of the interview:
"Soto:... [D]id [Armenta] ask you to send a message to [Santoyo]?
"Landa: I don't remember I mean I don't. The thing I mean um he's over there in A-tank and I'm over there in C-tank and I'm like whatever I mean I'm just worried about my court. I'm like ─
"Voices overlapping
"Soto: No, no, no I understand – I understand that you know we know of the message okay, and I'm not here to accuse you of a crime or-or anything okay but who knows the message I'm just asking you, you know we know that happened because we have a letter.
"Landa: Um that's the thing I don't know what you're talking about.
"Soto: So-so [Armenta] never told you to send a message to [Santoyo]?
"Landa: (Unintelligible) yeah, yeah whatever you know but.
"Soto: I'm sorry?
"Landa: Half the time I don't really don't pay attention cause I'm not, I'm not up on his level you know I'm not trying to be no gangster and all that you know.
"[¶]... [¶]
"Soto: So what did [Armenta] tell you?
"Landa: He tried to but I cut it and I changed the subject and I boom and in his mind he's thinking he-he you know he could say something like that.
"Soto: What-what-what did he try, what did he try to, what did he try to do?
"Landa: Well it sounds like that what you are saying but I know that ─
"Voices overlapping
"Soto: I want to hear it in your words, what did he say? We know what he said[, ] I'm just ─
"Landa: I don't know what he said.
"Soto: Okay.
"Landa: I cut him off before he even got there cause I don't want be involved in nothin'. I can see it coming that's-that's just how I am.
"[¶]... [¶]
"Soto: Okay, did you hear anything he said?
"Landa: Nah, and like I said you know I don't want to be no messenger I don't want to be involved so I cut him off.
"[¶]... [¶]
"Landa: I told him I ain't no messenger you know (unintelligible)
"Soto: Okay, to send a message to who?
"Landa: Like you said.
"Soto: To Bullet [i.e., Santoyo]?
"Landa: Yeah, I said I ain't no messenger you wanna go talk (unintelligible) I don't wanna get involved I just wanna (unintelligible) I'm just here on a misdemeanor charge.
"[¶]... [¶]
"Soto: No, well that's what I'm asking but you that's what I'm saying I mean you said he tried [to] send a message and you just didn't want any part of it.
"Landa: I know, I know where he was going with it you know.
"Soto: Okay, where was he going with it?
"Landa: He said hey ah this and that and I said hey well check this out fool and I changed the subject and ah you know so and so how's you're mom doing you know and just.
"Soto: Okay, but what were you going like check this out and this what was-what was he trying to ─
"Landa: I know what he was trying to tell me ([unintelligible]) and didn't want to tell him either well how's your mom doing this and that cause ─
"Soto: Okay, in your mind what was he trying to tell you?
"Landa: He's the type you know you cross him he'll kill you (burp).
"Soto: If you cross [Armenta] ─
"Voices overlapping
"Landa: [Armenta] you know he-he he'll shoot you he won't hesitate he'll shoot you.
"Soto: Um huh.
"Landa: That's why he's PCing."
At the conclusion of Somenek's testimony, outside the presence of the jury, defense counsel moved for a mistrial, stating, "I believe that I was severely prejudiced today by the receipt of that transcript in front of the jury. It was an out-of-court statement that was not under oath by Mr. Landa in which I had no ability to cross-examine him. And even though I am seeking his presence, he's absconding at this point in time. And I don't believe I'm going to be able to produce him tomorrow to cross-examine him regarding the opinions that he expressed in the case. Those opinions, I believe, are extremely prejudicial." The court addressed defense counsel's motion, stating, "Again, I think that the comments were powerful comments, but I think they explain Mr. Landa's reticence and his testimony on the stand when he was there. [¶] Furthermore, as I indicated earlier, he was given an opportunity to explain any of that and he chose not to, so he has been given an opportunity to basically disavow or expound on the statements that he knew he made to Agent[s] Somenek and Soto. So I'm going to deny your motion for mistrial."
a. Analysis
Armenta contends that the trial court erred in permitting the prosecutor to ask Landa whether he had said that Armenta would not hesitate to shoot someone. According to Armenta, this question called for a response that would constitute inadmissible character evidence.
Armenta further contends that the trial court abused its discretion in admitting the portion of the interview in which Landa said that Armenta was the type of person who would kill. According to Armenta, although the People "could argue that the statements on the tape should come in to impeach Landa and permit the jury to assess his credibility... [s]ince the credibility issue only arose because of the court's initial erroneous ruling in allowing the question, this rationale... [is] flawed." Armenta further argues that, even assuming the court's initial ruling regarding the prosecutor's questioning of Landa "is viewed as correct, " the "admission of the tape still amounted to an abuse of the court's discretion" because the statements were highly prejudicial.
(i) The prosecutor did not elicit inadmissible evidence by asking Landa questions concerning whether he was afraid to testify
Evidence Code section 1100 provides that "[e]xcept as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character." Evidence Code section 1101 makes evidence of a person's character inadmissible, "when offered to prove conduct on a specified occasion." Evidence Code section 1101 exempts from its scope "evidence offered to support or attack the credibility of a witness." (Id. subd. (c).)
Subdivision (a) of Evidence Code section 1101 provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
The prosecutor asked Landa whether he was afraid of Armenta ─ the implication being that Landa's fear of Armenta may have caused Landa to be less than truthful in his trial testimony. Landa indicated that he was not afraid of Armenta, responding, "What for?" The prosecutor's questions about whether Landa had made prior statements that suggested otherwise were intended to raise questions about the veracity of Landa's claim at trial that he did not fear Armenta.
"Evidence that a witness... fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible." (People v. Burgener (2003) 29 Cal.4th 833, 869.) The prosecutor's questions to Landa thus did not run afoul of Evidence Code section 1101's prohibition against admitting character evidence, because the evidence that the prosecutor was attempting to elicit was intended to challenge the credibility of Landa's trial testimony. The trial court did not err in permitting the prosecutor to ask Landa questions about earlier statements he had made that suggested that he was afraid of Armenta, even if those statements involved Landa's opinion about Armenta's character.
(ii) Even assuming that the trial court's decision to allow the jury to hear a prejudicial portion of Landa's tape recorded interview was error, the error was harmless
Armenta argues that the trial court was called upon to exercise its discretion under Evidence Code section 352 in making a decision as to whether to redact the portion of the tape recording in which Landa told Soto that Armenta was the type of person who would "kill you, " and that the court abused that discretion in concluding that the probative value of those statements outweighed their highly prejudicial nature.
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352. [Citation.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Landa's statement to the effect that Armenta would "kill you" if "you cross him" was undoubtedly highly prejudicial evidence of Armenta's character. In addition, it was not necessary to introduce that particular statement in evidence to impeach Landa, because there were other portions of the tape recording that clearly established that Landa's in-court testimony was of questionable veracity. For example, at trial, Landa claimed that he had not told Soto that Armenta tried to get Landa to pass a message to Santoyo, but the tape recording demonstrates that Landa did suggest to Soto that Armenta had asked him to be a messenger. Under these circumstances, one could reasonably question whether the trial court appropriately weighed the probative value of the recorded statement that Landa made during his interview with Soto to the effect that Armenta was the type of person who would kill you if you crossed him, against its highly prejudicial nature.
We need not determine whether the trial court abused its discretion in admitting in evidence Landa's statements about Armenta's character as someone who would kill if crossed, however, because even assuming that it was an abuse of discretion to allow this statement in evidence, we conclude that the admission of this evidence was harmless in the context of the entire trial.
In discussing the standard of prejudice that this court should apply to the admission of Landa's recorded statements about Armenta's character as someone who would kill if crossed, Armenta contends that the error is of constitutional scope because it violated his right to a fundamentally fair trial and to due process. Armenta argues that the harmless beyond a reasonable doubt standard announced in Chapman v. California (1967) 386 U.S. 18, 24 is thus the appropriate standard to apply in this situation. Because we do not view the admission of this character evidence as having rendered Armenta's trial fundamentally unfair, we apply the standard for assessing prejudice set forth in People v. Watson (1956) 46 Cal.2d 818. (See People v. Malone (1988) 47 Cal.3d 1, 22.) Under this standard, we do not reverse unless it is reasonably probable that Armenta would have obtained a more favorable outcome if the challenged evidence had been excluded. (Watson, supra, 46 Cal.2d at p. 836.) We conclude that there is no reasonable probability that Armenta would have received a more favorable outcome if the court had required the prosecutor to redact the portion of Landa's recorded statement to Soto in which Landa expressed his view that Armenta was the type of person who would kill if crossed.
Armenta contends that "[e]vidence introduced for no other purpose than to show criminal disposition violates the protections afforded by the Due Process Clause to all those accused of criminal conduct." However, it is clear that evidence of Landa's statements to Soto were introduced to challenge Landa's credibility. Although the nature of the statements was highly prejudicial, this does not mean that the statements were introduced for "no other purpose than to show criminal disposition." We therefore reject Armenta's contention that the admission of this evidence raises constitutional concerns.
Armenta argues that the evidence against him was "extremely weak." He acknowledges that "Villa's testimony, if believed, was highly incriminating, " but suggests that "there were numerous reasons for the jury to doubt or reject [Villa's] claims." Armenta similarly attacks the credibility of other witnesses, including Salazar and Santoyo, and asserts that "one factor which very likely contributed to this result [i.e., his conviction] was the opinion of Armenta's character offered by Landa." We disagree. There was substantial evidence of Armenta's guilt, and the jury clearly believed the multiple witnesses who testified against him―all of whom told stories consistent with the others' accounts concerning the nature of Armenta's involvement in this shooting. Although some of the witnesses' testimony may have included inconsistencies, the jury was free to weigh those inconsistencies in the context of each witness's full testimony in determining issues of credibility. We are confident that it is not reasonably probable that Armenta would have received a more favorable result if the trial court had not admitted Landa's tape recorded statement about Armenta's character, even in view of its prejudicial nature.
C. The trial court did not abuse its discretion in admitting evidence that Armenta had engaged in felonious conduct that resulted in a conviction for street terrorism
Armenta contends that the trial court abused its discretion under Evidence Code section 352 in allowing the prosecution to present evidence that Armenta had been convicted of street terrorism for an offense that occurred in October 2001-the month after the charged shooting occurred. In the alternative, Armenta claims that the court erred in "refusing to exclude the evidence as a sanction after a prosecution witness described the underlying conduct as involving a 'shooting' in violation of a court order sanitizing the prior conviction evidence."
1. Additional factual background
Prior to trial, defense counsel moved to exclude evidence related to Armenta's conviction for street terrorism. Defense counsel argued that the prior felony could not be used to impeach Armenta because Armenta did not intend to testify, and that it could not be used as evidence of a predicate offense to prove the criminal street gang allegations, because the offense was not one of the offenses specified under section 186.22, subdivision (e), and also because it occurred after the charged offense. The prosecutor argued that the evidence was admissible to rebut an anticipated defense argument that Armenta was no longer a member of the Chicali gang at the time of the charged offenses. The court tentatively ruled that evidence of the street terrorism offense was admissible, but stated that the court would continue to think about it.
During trial, outside the presence of the jury, the court and counsel discussed defense counsel's renewed objection to evidence of Armenta's conviction for street terrorism. Defense counsel argued that evidence of this conviction would be unduly prejudicial because the jury would be likely to rely on the conviction to conclude that Armenta was a gang member at the time of the charged offense rather than use it to weigh his credibility, which, in defense counsel's view, was the only proper basis for admitting this evidence. Counsel also argued that the street terrorism conviction could not constitute a "predicate offense because it occur[red] after the offense of September 15th or 16th of 2001." If the court was not inclined to exclude the evidence, defense counsel offered as an alternative that the court limit what the expert could say about the crime to the "fact that it was an adjudication against Mr. Armenta in 2003."
The trial court indicated that it would allow the prosecutor to elicit from the expert information about the conduct underlying the conviction only to the extent that it "would indicate that [Armenta] is a Chicali gang member." After further discussion as to what would and would not be allowed, defense counsel asked, "Are we going to get into the fact that this is a drive-by shooting?" The court responded, "I don't think so. I don't know that that has anything to do with the fact he was with Chicali members and was associating with Chicali members." The prosecutor objected to not being able to provide information about the underlying conduct. Defense counsel suggested, "[W]e can tell them that [street terrorism] is what he was convicted of." The trial court agreed with this suggestion, saying:
"That would –I think that might work. He was convicted and pled guilty to street terrorism while he was associating with Chicali members and the street terrorism was directed at members of the Broleno gang. I think that that would show that... as of October he was still related and associated with the Chicali gang. And I think that that would probably – because that is the crime that was being – he pled guilty to. I think that would, although it might take some of the teeth out, it would still show he is still associating with that gang."
The court ultimately ruled that the prosecutor would be permitted to elicit testimony about the fact that Armenta had engaged in "terrorist acts directed at another gang by the Chicali gang."
At some point during the direct examination of gang expert Monita, the prosecutor asked Monita about an incident in October 2001 that involved Armenta that Monita believed was gang-related. When the prosecutor asked Monita to explain generally what that incident was, Armenta's attorney made an unspecified objection. The court noted the objection and overruled it. Monita then said, "October 15th at about 11 [minutes] after 8:00 p.m., we received a call of a shooting." The prosecutor immediately said, "Excuse me, Your Honor. May I approach the witness?" The court said, "Yes. Please do." Defense counsel then asked for a sidebar conference.
At the sidebar conference, the prosecutor told the court that she had admonished Monita not to mention anything about a shooting, and that she thought "he forgot" because she had "told him when he first got here."
The trial court decided to advise the jury to disregard Monita's statement, and noted that "the nature of the incident is really not critical and hopefully that unrings it." When defense counsel complained, "They still heard the fact that he was involved in a shooting, " the court said, "[They heard] [t]hat he responded to a shooting. They won't know if it was proven in court, that was the plea. They won't know if there was a shooting. There wasn't a shooting. It was firecrackers, exhaust. I'll tell them to disregard it."
Defense counsel then asked the court to impose a sanction in the form of not allowing Monita to testify about Armenta's prior conviction for street terrorism at all. The court said, "I don't think it warrants any real action on the part of the Court other than to advise the jury to disregard it."
The court proceeded to admonish the jury as follows:
"Ladies and gentlemen, [the prosecutor] asked a question that has been partially responded to by the witness, he started. What I'm going to ask you to do is disregard the first part of the witness'[s] comments, the reason he responded. That is not really relevant to the issue we're going to be covering here. That information that was just received by the jury, maybe some of you didn't hear it, which is good, because I'm going to tell you to please disregard that. [¶] But let me note that at this point the reason for their responding wasn't critical. You will find out what happened, what the result of the investigation was. Treat that comment as something that wasn't necessarily proven, that could have been anyone, a number of different things. Again, the reason for their initially responding isn't of import with respect to this line of questioning. Please disregard the first part of the comment."
Monita went on to testify that he had arrested Armenta and two other Chicali gang members for a crime of violence against Brole gang members, that Armenta was convicted of street terrorism for the offense, and that Monita believed that the crime was "gang-related."
2. The trial court did not abuse its discretion under section 352 in admitting Armenta's felony conviction for street terrorism
Armenta contends that the trial court's admission of evidence of his conviction for street terrorism was an abuse of discretion. According to Armenta, the evidence was "highly prejudicial because the prior offense was essentially identical to the street gang special circumstance and enhancement allegations... and involved conduct, shooting at gang rivals, similar to the charged offense." Armenta asserts that the evidence "lacked significant probative value since it was admitted solely to contradict Armenta's claim that he had quit the Chicali gang before the charged offense occurred." Under Armenta's view of the evidence, the evidence of his conviction for street terrorism was "cumulative to other evidence showing his gang membership at that time."
We conclude that the trial court did not abuse its discretion under Evidence Code 352 in allowing the prosecutor to introduce evidence of Armenta's street terrorism conviction. Armenta presented evidence in the form of expert opinion that although he had previously been a member of the Chicali gang, by the time of the shooting in September 2001, he was no longer affiliated with the gang. Evidence that a mere month after the Garcia/Hernandez shooting took place Armenta was not only involved in gang violence, but was convicted as a result of that conduct, specifically rebutted Armenta's contention that he had given up his affiliation with the gang years before the shooting took place.
Armenta asserts that there was abundant other evidence that he was in the Chicali Brasas gang at the time of this shooting, including Monita's testimony that Armenta "was responsible for forming the Chicali Brasas gang... and that a source in the gang, Manuel Espinosa, considered [Armenta] a 'prime mover' and 'hardcore member' in 2002 or 2003." Armenta points out that other witnesses, such as Villa, suggested that Armenta was in the gang at the time of the shooting, and that a probation report from January 2003 stated that he was a "Chicali 13 member." However, none of this evidence is similar to the evidence of his conviction for a gang crime. Evidence of the street terrorism conviction was highly relevant, particularly once Armenta elected to introduce his expert's opinion that he had dropped out of the gang.
Further, the trial court ruled that the prosecution would not be allowed to mention the fact that the street terrorism conviction was based on a shooting incident, thereby minimizing the potential that the jury would use the fact of the street terrorism conviction for a purpose other than simply as evidence that Armenta was still involved with the Chicali gang in late 2001, despite his claims to the contrary. The court acted well within its discretion in determining that the probative value of this evidence outweighed any prejudice that might result from its admission.
3. The trial court did not err in refusing to exclude the evidence of Armenta's conviction as a sanction
Armenta contends that even assuming that the trial court did not abuse its discretion in initially deciding to admit evidence of the street terrorism conviction, the court erred in failing to exclude this evidence once Monita referred to the underlying conduct supporting the conviction as a "shooting, " in violation of the trial court's ruling that the prosecutor and witness were not to discuss the underlying facts of the street terrorism conviction.
Before the prosecutor questioned Monita regarding the prior conviction, the trial court had concluded that evidence that Armenta had committed "street terrorism... directed at members of the Broleno gang" would be sufficient to establish that Armenta was still involved with the gang in late 2001, and that it was not necessary to discuss whether the crime involved a shooting. However, when the prosecutor asked Monita about a gang-related incident in October 2001 involving Armenta, Monita began his answer by saying that the police had "received a call of a shooting."
It appears clear that the trial court wanted to avoid any mention of the facts underlying the street terrorism charge, and that Monita's response to the prosecutor's question should not have included the nature of the call to which officers responded. Armenta frames the issue as involving "the revelation that Armenta's prior conviction had involved a gang-related 'shooting, '" which, he contends, "went directly to the main issue of the case: whether he had conspired with Gastelum to commit the gang-related shooting that had resulted in Garcia's death." Although Monita should not have mentioned the word "shooting" in his response to the prosecutor's question, what he said did not equate to a "revelation that Armenta's prior conviction had involved a gang-related 'shooting.'" Rather, Monita said that officers received a call about a "shooting." He was immediately prevented from saying anything further. Monita never testified that a shooting had in fact occurred, or that Armenta's conviction involved a shooting incident. Further, the trial court immediately admonished the jury that "the reason [f]or their [i.e., the officers] responding wasn't critical" and told jurors to disregard Monita's statement as to the reason officers responded that day. As the court told the jury, "You will find out what happened, what the result of the investigation was. Treat that comment as something that wasn't necessarily proven, that could have been anyone, a number of different things."
Armenta contends that the trial court's admonition was insufficient and ineffective, and could not have cured the prejudice that resulted from Monita's mentioning a shooting. He cites the following language in People v. Hardy (1948) 33 Cal.2d 52, 61 (Hardy) in support of this contention:
"'It has... been held that in certain cases where the incompetent evidence goes to the main issue and where the proof of defendant's guilt is not clear and convincing, that the error in admitting the incompetent evidence cannot be cured by striking out and instructing the jury to disregard that evidence.'"
Hardy was quoting People v. McKelvey (1927) 85 Cal.App. 769, 771-a case in which the trial court allowed five witnesses "to testify to defendant's bad moral character, although he had not put his character in issue." (Hardy, supra, 33 Cal.2d at p. 62.) In Hardy, the evidence being challenged was what the court viewed as "a confession [by the defendant] for which no foundation had been laid." (Id. at p. 61.) The trial court had allowed a deputy to testify as to what the defendant had said, but then determined that the evidence should not have been admitted because no proper foundation had been laid. However, in instructing the jury that the deputy's testimony "was expunged from the record" and that it was not to consider that evidence, the court re-read the very same testimony to the jury a second time. (Ibid.) Under those circumstances, the Hardy court found that "it was extremely unlikely that the jury could wholly reject the evidence and completely disregard it in their deliberations." (Id. at p. 62.)
The evidence at issue in this case is not of the same type as the erroneously admitted evidence discussed in Hardy or McKelvey. In addition, the other evidence of Armenta's guilt was significant and convincing. Further, the court in this case provided the jury with a reason why it should ignore Monita's description of the call, telling the jury that it had not been proven and could have been "a number of things, " and informing them that the reason for the call was irrelevant. This, combined with the court's clear admonition that the jury was to disregard Monita's reference to the type of call that officers had received, sufficiently cured any problem that Monita's description of the call as being one about a shooting may have raised.
Because we conclude that the trial court did not err in admitting evidence of Armenta's street terrorism conviction, we reject Armenta's claim that the court's handling of this evidence and evidence of Landa's opinion about Armenta's character was cumulatively prejudicial.
D. Sufficiency of the evidence regarding the street gang special circumstance
Armenta contends that there is not sufficient evidence to support the jury's true finding on the gang special circumstance allegation because the prosecution failed to prove that Chicali Brasas is a criminal street gang within the meaning of section 186.22, subdivision (f). Specifically, he argues that there was insufficient evidence that one or more of the crimes listed in section 186.22, subdivision (e) constitute Chicali's primary activities, or that its members had engaged in a pattern of criminal gang activity by committing two or more listed criminal offenses.
1. Additional factual background
Monita, the prosecution's gang expert, testified that in his opinion, the Garcia/Hernandez shooting was gang-related, and Armenta was a gang member at the time of the shooting.
The prosecutor asked Monita if he was familiar with section 186.22, and Monita responded that he was. The prosecutor then asked Monita, "[W]hat constitutes a gang?" Monita replied, "It's a group or organization of three or more people, either formally or informally, engaged in criminal activity. And the criminal activity involves-now it's up to 33 different types of crimes, enumerated in 186.22 and they usually-this group of people usually have a common name or a common sign or something that is common to them. And they are involved in criminal activity, either singular or in concert with each other." Monita testified that during his 16 years on patrol, he had come into contact with criminal street gang members on a daily basis. When asked to "approximate how many street gangs there are in Brawley... operating currently or within the last five years, " Monita responded, "It would be Brole and Chicali. We also have proyectos, like I say, proyectos, they are kind of aligned or associate[d] with Brole."
Section 186.22 defines the meaning of "criminal street gang, " as we discuss in section III.D.2., post.
The prosecutor asked Monita when Chicali "came into existence in Brawley." Monita responded, "That came in the '80s, early '90s. Same thing [as Brole] active-wise, 30 to 50 [members]." The prosecutor then asked Monita whether he was "also familiar with something called Chicali Brasas, " and whether Chicali Brasas was "a subset of Chicali." Monita testified that Chicali Brasas was a subset of Chicali, and that it was "a group we started seeing around – approximately around 2002. [Chicali Brasas] was a subset of a group of subjects that seemed to form a clique or a set of themselves. They still claim Chicali, but you would also see graffiti of 'Brasas' along with 'Chicali.'" Monita explained:
"Brasas came about, like I say, anywhere from 2000, 2002, in that time frame. It was more – you see within – Chicali, you have to understand. Chicali is countrywide. You will have a group in Calexico, a group in El Centro, a group in Brawley. And then, like I say, most Chicali could trace their roots back to some sort of colonia or something back in Mexico. [¶] You started seeing – with Brasas, you started seeing individuals that, you would see several individuals from maybe Westmoreland, several individuals maybe out of Imperial, some members from Brawley, some members from Calipat all belonging to this subset of Brasas. One of the reasons that it seemed to form was actually out of Mr. Armenta because of his particular situation."
Monita clarified that Armenta's father had been a member of Brole, so it seemed strange to law enforcement officers that Armenta would have been "jumped into Chicali, " a rival gang to Brole. Monita testified that "some of the Brole members at the time, " suggested to him that Armenta had not been "jumped into Brole" because "they considered him weak and they didn't want him." In addition, it appeared that some of the older members of Chicali in Brawley did not "look favorably" on Armenta because he "didn't have the heritage of coming from Mexicali or Mexico." As a result, Armenta then began associating with Chicali members from Calipat, Imperial, and Westmorland, in addition to some of the Brawley members of Chicali from "when he was jumped in initially with Chicali." Monita stated that he had gathered his understanding of how Chicali Brasas was formed through speaking with Chicali members and Brole members.
Monita testified that he had probably over a hundred contacts with Armenta. When Armenta was younger, he admitted to belonging to Chicali. Monita also testified that he often saw Armenta associating with Chicali gang members. In Monita's opinion, Armenta was actively involved in the Chicali gang in September 2001. Monita expressed his view that the street terrorism offense in October 2001, of which Armenta was convicted, was gang-related, in that Armenta and two other known Chicali gang members had committed acts of violence against Brole gang members.
Monita testified that he had also been in contact with Gastelum, and that he had seen Gastelum with other Chicali gang members. The prosecutor asked Monita about a robbery that occurred on November 7, 2000, for which Gastelum and his brother had been convicted. Monita stated his view that the robbery had been gang-motivated. He based his opinion on witness statements after the crime, as well as the fact that Gastelum's brother had been wearing a shirt with "the Number 13 and South Siders written on it, which would indicate usually Chicali or any Surenos would be wearing a 13, indicating Southern California, Number 13." Monita described the relationship between Chicali and Surenos as follows: "Chicali is in Southern California. It's gangs in the south. Same with Brole, would be considered Surenos because it's in the south. And it's important because Surenos pay taxes to prison gangs, Eme, the Mexican Mafia, th[en] at some point in time if they are ever incarcerated, they kind of paid their way through."
The prosecutor then asked Monita to identify certain symbols and tattoos associated with Chicali and Chicali Brasas. Monita described having seen Chicali and Chicali Brasas graffiti in Brawley.
Monita testified that Brole and Chicali "don't get along with each other, " and that "[t]hey have been feuding ever since" Monita has been working in Brawley. The feud between these two groups has resulted in knifings, shootings, and fights. Monita was then asked about a specific shooting in 1997 of Castellanos, who went by the moniker "Peter Boy." Monita had seen Peter Boy with Armenta on a number of occasions. A Brole member had been convicted of the shooting of Peter Boy, and Monita believed that the shooting was gang-related. Chicali members had discussed the shooting with Monita and "were upset about that one."
It is not clear from the prosecutor's questions or Monita's responses the time frame during which Monita saw Castellanos with Armenta.
The prosecutor posed a hypothetical scenario in which two gang members "devise a plan to do a shooting at a residence where they know rival gang members are partying, " and they say that they are "putting in work." In Monita's opinion, such a crime would be committed to benefit the gang because it involves "one gang planning to go into another gang's territory and bring violence" as a show of force used to "intimidate another gang." Monita also stated that such a crime would establish your status within your gang "because it shows you are putting in work, you got heart, you are willing to show."
The prosecutor then asked Monita to assume the same situation with the additional fact that the shooting was done in retaliation for a fellow gang member having been shot. Monita said that such a shooting would constitute gang-related vengeance.
Defense counsel asked Monita whether there are degrees of membership in criminal street gangs, and inquired about "the difference between a hardcore member and an associate member." After Monita described the difference, defense counsel asked him, "Would you say that hardcore members are basically members of the gang for purposes of primarily committing criminal activity?" Monita responded, "Yes." Defense counsel asked, "Associate members may, on the other hand, be people who come in and out of the gang for purposes of social purposes?" Monita explained, "Well, not so much – somewhat social, but they are also involved. They are also involved in criminal activity too. They do participate in criminal activity."
In response to defense counsel's question whether it was his testimony that the shooting at issue in the case had been done in retaliation for the shooting of Castellanos, Monita testified that such retaliation "could be a very real possibility." He added, however, "There was other talk at the time too that it was in retaliation for something that happened to Mr. Armenta's brother."
Monita testified that it was his opinion that the B Street shooting was gang-related. He based this opinion in part on the fact that the shooting occurred at a house in Broleno territory, and the fact that Brolenos were present at that residence at the time of the shooting.
2. Legal standards
In reviewing Armenta's claim of insufficiency of the evidence, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]" (People v. Ramon (2009) 175 Cal.App.4th 843, 850.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]" (Ibid.)
The gang special circumstance allegation requires proof that a defendant intentionally killed the victim while he was an active participant in a criminal street gang, and that "the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) At the time these offenses occurred in 2001, section 186.22, subdivision (f) defined a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Former § 186.22, subd. (f).) The enumerated crimes included robbery and homicide. (Former § 186.22, subds. (e)(2) & (e)(3).)
Thus, in order for a gang to meet the statutory definition of a criminal street gang, it must meet the following requirements: "(1) the group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) one of the group's primary activities must be the commission of one or more of the specified predicate offenses; and (3) the group's members must 'engage in or have engaged in a pattern of criminal gang activity.'" (People v. Loeun (1997) 17 Cal.4th 1, 8; see also People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
3. Analysis
Armenta does not challenge the first element of the criminal street gang component of the gang enhancement, i.e., the ongoing association of three or more participants with a common name or common identifying sign or symbol element. Rather, Armenta contends that there was insufficient evidence (1) that Chicali had as one of its "primary activities the commission of" one or more of the specified crimes, and (2) that members of Chicali have engaged in a pattern of criminal gang activity.
Armenta contends that there was insufficient evidence of the "primary activities of the Chicali Brasas gang within the meaning of section 186.22." "The phrase 'primary activities, ' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members.... [¶] Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith).) Further, "[e]vidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (Id. at p. 323.)
Both past and present offenses have some tendency in reason to show the group's primary activity (Sengpadychith, supra, 26 Cal.4th at p. 323.) Thus, in deciding whether the primary activities requirement has been met, the jury may consider the charged offense or offenses in the case, if the offense or offenses are among the statutorily enumerated offenses listed in section 186.22, subdivision (e). (Sengpadychith, supra, at p. 323 ["Nothing in this statutory language prohibits the trier of fact from considering the circumstances of the present or charged offense in deciding whether the group has as one of its primary activities the commission of one or more of the statutorily listed crimes."].)
Expert testimony―where the expert testifies that he has personally investigated hundreds of crimes committed by gang members and bases his observations on personal experiences and information from colleagues―may be sufficient to establish that one of the gang's primary activities is the commission of at least one of the enumerated crimes. (Sengpadychith, supra, 26 Cal.4th at p. 322, citing Gardeley, supra, 14 Cal.4th 605 [police gang expert testified that gang of which defendant was a member was primarily engaged in the sale of narcotics and witness intimidation, based on conversations expert had had with defendant and other gang members, as well as personal investigations and information from colleagues].)
The People contend that Monita, the gang expert, testified that Chicali was one of the "main" Brawley gangs. The people also point out that Monita was aware of the statutory definition of a gang, including the element that the purpose of the gang is primarily for committing criminal activity.. The People appear to suggest that because Monita testified that the purpose of a street gang, in general, is to commit criminal activity, by merely calling Chicali a "gang, " Monita established that one of the primary purposes of Chicali was criminal activity. However, this argument is circular. Calling an organization a gang and stating the general definition of a street gang does not constitute evidence that the organization is, in fact, a criminal street gang, within the meaning of section 186.22, subdivision (f).
The People suggest that there was other evidence that one of Chicali's primary activities included the commission of one or more crimes enumerated in section 186.22, subdivision (e). Specifically, the People contend that Monita testified that Gastelum had been "convicted of committing a November 7, 2000 robbery, " which, Monita opined, "had been 'gang-related.'" The People further cite the facts of the underlying case, as posed to Monita as a hypothetical, which Monita stated would in his view be a gang-related crime. However, the element at issue requires a showing that "the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations, " not simply that members of the group have occasionally committed those crimes. (Sengpadychith, supra, 26 Cal.4th at p. 323.) Monita provided no evidence that either of these crimes was a "'chief' or 'principal' occupation" (ibid.) of Chicali, nor did he provide any other testimony as to what, if any, crimes were Chicali's primary activities.
The expert testimony that was presented in this case is similar to the expert testimony that was determined to be insufficient in In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612 (Alexander L.). In Alexander L., the gang expert "testified generally about the benefits that graffiti might create for a gang, such as intimidating rivals. The expert also stated that, in his opinion, Varrio Viejo was an active street gang as of the date of Alexander's arrest. When asked about the primary activities of the gang, the expert replied: 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Id. at p. 611.) The court of appeal noted that the expert's "entire testimony on this point is quoted above-he 'kn[e]w' that the gang had been involved in certain crimes." (Ibid.) The Alexander court explained the problem with the expert's testimony as follows: "No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. He did not directly testify that criminal activities constituted Varrio Viejo's primary activities. Indeed, on cross-examination, [the expert] testified that the vast majority of cases connected to Varrio Viejo that he had run across were graffiti related." (Id. at pp. 611-612, italics added.) Similarly, here, Monita did not testify as to what criminal activities constituted Chicali's primary activities. Although he made reference to various crimes, there was no testimony that suggested that Chicali's members "consistently and repeatedly have committed criminal activity listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at p. 324.) The evidence is thus insufficient to support a finding that any of the crimes enumerated in the statute are a "primary activity" of Chicali.
Because we conclude that there is insufficient evidence to support a true finding that the criminal activities enumerated in the statute constitute Chicali's primary activities for purposes of the gang special circumstance allegation, the true finding on the special circumstance allegation must be reversed. We therefore need not consider Armenta's additional contention that the evidence was insufficient to support a finding that Chicali members engage in a pattern of criminal gang activity.
IV.
DISPOSITION
The judgment is modified as follows: the special circumstances found true as to the murder and conspiracy to commit murder convictions, and the sentences of life without the possibility of parole imposed for the convictions (and stayed pursuant to section 654 with respect to the conspiracy conviction) are vacated. The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation reflecting a sentence of imprisonment for 25 years to life on count 1, and a sentence of imprisonment for 25 years to life, stayed pursuant to section 654, on count 2. In all other respects the judgment is affirmed.
The abstract of judgment incorrectly lists two section 186.22 enhancements, one related to each of the two counts for which Armenta was convicted. The jury was never asked to make any findings related to street gang enhancements pursuant to section 186.22. Rather, the jury was asked to make a special circumstance finding pursuant to section 190.2, subdivision (a)(22).
WE CONCUR: HUFFMAN, Acting P. J.McDONALD, J.