Opinion
E070728
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. CRUZ JOE BELTRAN, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1302852) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed as modified with directions. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Cruz Joe Beltran testified at trial. He admitted being a gang member. He admitted participating in a check fraud scheme, along with members of other gangs. And he admitted shooting another participant in the scheme to death. The prosecution presented evidence that defendant was angry because it appeared that the victim had helped himself to some of the profits. Defendant testified that he acted in self-defense.
A jury accepted the prosecution's view of the evidence; it found defendant guilty of:
Count 1: First degree murder (§§ 187, subd. (a), 189), with a gang enhancement (§ 186.22, subd. (b)) and an enhancement for personally and intentionally discharging a firearm, causing death (§ 12022.53, subd. (d)).
These and all further statutory citations are to the Penal Code, unless otherwise specified.
Count 2: Unlawful possession of a firearm (§ 29800, subd. (a)), with a gang enhancement.
In a bifurcated proceeding, after waiving a jury trial, defendant admitted five prior prison term enhancements. (§ 667.5, subd. (b).) He was sentenced to a total of 62 years to life in prison, along with the usual fines and fees.
Defendant now contends:
1. There was insufficient evidence of premeditation and deliberation.
2. Defense counsel rendered ineffective assistance by failing to object to evidence regarding the Mexican Mafia.
3. The prosecutor committed error by violating a trial court ruling barring evidence of defendant's misconduct in prison; alternatively, defense counsel rendered ineffective assistance by failing to object.
4. Defense counsel rendered ineffective assistance by stipulating that the evidence established the predicate offenses for purposes of the gang enhancements.
5. The trial court erred by imposing fines and fees without determining whether defendant had the ability to pay them.
6. Under legislation enacted shortly before sentencing, defendant is entitled to a remand so the trial court can consider striking the firearm enhancement.
7. Under legislation enacted after sentencing, defendant's five prior prison term enhancements must be stricken.
The People concede that the prior prison term enhancements must be stricken. We find no other prejudicial error. We will modify the judgment accordingly and affirm it as modified.
I
FACTUAL BACKGROUND
A. Testimony of Percipient Witnesses.
Defendant was an active member of the Little Counts, which is a clique of the West Side Verdugo gang. His moniker was "Sick."
Defendant sold drugs. He also took part in a check fraud scheme, along with Genaro "Youngster" Sepulveda and Nicholas Acosta (the eventual victim). Sepulveda was a member of another gang, Yucaipa Travieso. Acosta was a member of a third gang, San Diego Riley Chula Vista.
Acosta was in charge of depositing stolen checks into a bank account, then withdrawing the money. Defendant and Sepulveda enlisted Mary Evans, who agreed to let them use her bank account; she gave them her ATM card.
Evans admitted one prior felony conviction.
On September 12, 2012, Evans was at defendant's house. Defendant's friend Alexis Sandoval, accompanied Evans.
Sandoval admitted three prior felony convictions.
Defendant complained that "money wasn't coming like it was supposed to be" and that he could not get ahold of Acosta. Evans checked her account and found that some of the money had been withdrawn. When she told defendant, he was angry. He said he would call Acosta and Sepulveda.
Evans went to the bank, with Sandoval, to withdraw the rest of the money from the account. When they arrived, Evans was arrested. Sandoval went back to defendant's house and told him Evans had been arrested; once again, defendant was angry.
Acosta arrived. Shortly before or after that, Sepulveda also arrived. According to Sandoval, she and defendant had used methamphetamine earlier. According to Sepulveda, however, all four of them smoked methamphetamine together in the bedroom.
Sepulveda admitted five prior felony convictions.
When Sepulveda testified, he was in jail, awaiting sentencing. He had been charged — as codefendant in this case — with murder and a gang enhancement, with a maximum potential sentence of 50 years. However, he had agreed to plead guilty to voluntary manslaughter, with a gang enhancement, and to be sentenced to nine years in prison, in exchange for his truthful testimony against defendant.
Sepulveda and Sandoval both testified — from their own perspectives — to what happened next.
At one point, defendant, Sepulveda, and Acosta were all together in the living room. Sandoval was in a bedroom, with the door closed, but she could hear them talking.
Defendant asked Acosta if he had done any transactions in the account. Acosta said he had not. He said maybe his father took the money. Defendant called him a liar. He kept asking, "Where [i]s the money?" Acosta kept saying he did not know. It was a conversation, not a heated argument.
Suddenly, defendant produced a rifle. Acosta jumped up; defendant shot him once. Acosta headed toward the back door, but fell.
Defendant told Sandoval to come out of the bedroom because he needed help. Acosta's dead body was lying on the floor; defendant was standing over it, holding a rifle.
With the help of Sepulveda and Sandoval, defendant wrapped up the body in a blue plastic swimming pool and stuffed it into the trunk of Acosta's own car. At defendant's direction, Sepulveda and Sandoval got into another car and followed him as he drove Acosta's car. They went down Bryant Street. When they reached a deserted area on Greenspot Road in Mentone, defendant drove off the road into a field. Sepulveda parked on the street. Sandoval waited in the car while Sepulveda helped defendant take the body out of the trunk.
After Acosta's body was found, an autopsy showed that he died of a single shot that hit his lower abdomen and punctured his lungs, liver, and aorta. There were no injuries to his head, arms, or back that might suggest he had been in a fight.
Sepulveda testified that Acosta did not have a gun and did not make a move toward him. Sandoval testified similarly that she did not see Acosta act aggressively or threaten defendant; she did not see Acosta with a gun.
After the shooting, Sandoval was afraid defendant would kill her. She had received "multiple threats." Sepulveda testified that because he was a snitch, there was a "green light" out for him.
Justin Hernandez was in protective custody when he testified. He was a long-time friend of defendant and Acosta. He was also the founding member of Sepulveda's gang.
Hernandez admitted five prior felony convictions. In December 2012, he had been arrested for a probation violation; he was facing an 11-year sentence. He entered into a plea bargain that provided for a sentence of time served (seven years four months) and the dismissal of a vehicle theft charge, in exchange for his truthful testimony.
Hernandez testified that defendant admitted shooting Acosta with a rifle and using Acosta's car to dump the body off Bryant Street, going toward Greenspot. Hernandez admitted, however, that Sandoval had also told him about the shooting.
Before trial, defendant sent Hernandez a letter accusing him of "jump[ing] ship" and telling him to "keep your mouth shut."
Hernandez was in protective custody because he was cooperating with the police; other prisoners had a "green light" to attack him.
Keith Courtney was also in protective custody when he testified. He had been in custody with defendant. He told the police that defendant admitted shooting Acosta because Acosta owed him money for drugs; "he was short changed . . . and it was a respect issue." "Youngster" was present at the time. Defendant took the body out to "the boondocks" in a car and "dumped" it there. Defendant added that he got rid of the gun.
Courtney told police he did not want to testify because he was afraid defendant would retaliate against his family. At trial, he testified that everything he told the police was a lie. He knew some of the details because defendant read his police reports to him. When the officers asked him leading questions, he just agreed. Other things he made up.
Courtney did admit that defendant never told him that there was an argument or a fight before the shooting or that he acted in self-defense.
In November 2012, defendant told a police officer that, when someone owes you money for drugs, "you just gotta fuckin' shoot 'em."
B. Expert Testimony.
Sergeant Brad Bonnet testified as a gang expert.
He identified West Side Verdugo as one of the largest gangs in Southern California, with over a thousand members. Like most Southern California Hispanic gangs, West Side Verdugo is controlled by the Mexican Mafia. It has common signs or symbols, including West Side Verdugo," "Verdugo," "WS," and "V."
The primary activities of West Side Verdugo were murders, assaults, sexual assaults, kidnapping, burglaries, drug sales, witness intimidation, criminal threats, and unlawful possession of weapons.
The prosecution introduced "prior packets" relating to three individuals — Santino Greenough, Augustine Beltran, and Alberto Fernandez. Defense counsel stipulated that the packets established "adequate predicates."
Sergeant Bonnet testified, in hypothetical form, that the crimes were committed for the benefit of West Side Verdugo. He explained that gangs "control everything" through fear. If a gang is known to be violent, people will be reluctant to threaten them or to testify against them. In his opinion, in light of Acosta's "disrespect and theft," "there was no choice but to commit the murder."
He also testified that, in gang culture, a snitch is at risk of being assaulted or murdered.
C. Defendant's Testimony.
Defendant admitted being a member of the Little Counts and West Side Verdugo. He also admitted six prior felony convictions.
He testified that Acosta was an acquaintance who sold drugs for him. He had given Acosta a gun to protect himself while selling drugs.
In the days leading up to the shooting, there had been "friction" between him and Acosta. They had a dispute over "a supposed female," in which Acosta drew the gun defendant had given him. Also, Sepulveda told defendant that he had been "jumped by some skinheads," and that Acosta was there but "didn't help him out."
Because defendant was on probation, he avoided having any firearms at his home. Nevertheless, two or three days before the shooting, he got a loaded .22-caliber rifle from Sepulveda. He testified that he got it to protect himself from Acosta. He kept it next to his couch.
Defendant admitted participating in the check fraud scheme. He thought it was Acosta's father who had taken money from the bank account, because Acosta's father was in on the scheme and had the ATM card.
In an effort to reach Acosta's father, defendant phoned Acosta. However, he admitted that, in the conversation, he "accused [Acosta] of pulling the money." Acosta "got agitated and defensive and started threatening [defendant]." Defendant told him "I don't want him at my house no more and to get whatever he had there and to be done with it."
When Acosta first arrived, "[e]verything was cool." At some point, however, Sepulveda confronted Acosta about not helping him with the skinheads.
In the living room, defendant sat on the couch ("right next to" the rifle). He asked Acosta where the money was. Acosta tried to phone his father but could not reach him. Acosta "jumped up and . . . started attacking . . . Sepulveda." "They got into a fistfight." It lasted 10 to 15 seconds.
Defendant grabbed the rifle. He told them to stop and he told Acosta to leave. Instead, Acosta took two steps toward defendant and reached toward his waistband, so defendant shot him. He acted in self-defense: "I was in fear for my life." He thought Acosta might be carrying the gun he had given him. He did not tell the police that he shot Acosta in self-defense because he thought they would not believe him.
Defendant denied talking to Hernandez about the case. He also denied talking to Courtney about the case; however, he admitted that Courtney had "[r]eally" "[a]mazing," "really accurate information about the case."
Defendant agreed that Sepulveda, Sandoval, Hernandez, and Courtney were all snitches, but added that they would face "consequences" only if he "pressed the issue," which he denied having done.
II
EVIDENCE OF PREMEDITATION
Defendant contends that there was insufficient evidence of premeditation and deliberation.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Powell (2018) 5 Cal.5th 921, 944.) "'"'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]'" [Citation.]' [Citation.]" (People v. Salazar (2016) 63 Cal.4th 214, 242.)
A conviction of first degree murder can be based on several alternative theories; the only one on which the jury here was instructed is that the killing was "willful, deliberate, and premeditated . . . ." (§ 189.)
""'"'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means th[inking] over in advance. . . . 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'"' [Citation.]" (People v. Ghobrial (2018) 5 Cal.5th 250, 278.)
"In People v. Anderson (1968) 70 Cal.2d 15, [the Supreme Court] observed that '[t]he type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories': (1) facts about planning activity 'prior to the actual killing which show[s] that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing'; (2) 'facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim'; and (3) 'facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design."' [Citation.]" (People v. Rivera (2019) 7 Cal.5th 306, 324.)
However, "'[s]ince Anderson, [the Supreme Court] ha[s] emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight.' [Citation.]" (People v. Rivera, supra, 7 Cal.5th at p. 324.) "'"Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Streeter (2012) 54 Cal.4th 205, 242.)
Here, there was ample evidence of motive. Defendant believed Acosta was helping himself to proceeds of their check fraud scheme. Also, according to what he told Hernandez, Acosta owed him money for drugs. Either way, he had the added motive that, as a gang member, he could not let Acosta get away with such flagrant acts of disrespect; as the gang expert testified, he had "no choice but to commit the murder."
In addition, there was substantial evidence of planning. Defendant armed himself with a loaded rifle three days before the shooting, even though he normally tried to avoid having firearms at his home. (See People v. Miranda (1987) 44 Cal.3d 57, 87 ["[T]he fact that defendant brought his loaded gun into the store and shortly thereafter used it to kill an unarmed victim reasonably suggests that defendant considered the possibility of murder in advance."], disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) He admitted that he got it to use on Acosta, if necessary (although he claimed only in self-defense). He put it in a place where it was concealed but ready to hand. When he found out about the withdrawals from the bank account, he phoned Acosta and insisted that he come over to his home; as the prosecutor noted, he could easily have asked Acosta about the money over the phone. And before he confronted Acosta, he sat on the couch, right next to the rifle.
Admittedly, it does not appear that defendant had much of a plan for disposing of the body. There is no evidence of where the blue plastic pool came from; Sandoval thought he wrapped the body in something that he got out of the trunk of Acosta's own car. Moreover, Sandoval testified that, when they went to dispose of the body, defendant was driving "all over the place. Like he didn't know what he was doing." Nevertheless, even if he did not plan for everything, the jury could find that he did plan.
Finally, the manner of killing tended to show premeditation. Defendant shot Acosta from 10 to 15 feet away. The bullet hit Acosta in the abdomen; it was so well-placed that it pierced his lungs, liver, and aorta. "[A] close-range shooting without any provocation or evidence of a struggle . . . supports an inference of premeditation and deliberation. [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295.) That is particularly true when the bullet strikes a vital area. (People v. Gomez (2018) 6 Cal.5th 243, 283 [head].)
Defendant points to the evidence that he was high on methamphetamine. The jury could have inferred that, as a result, he did not premeditate; however, it was not required to do so. Indeed, it was specifically instructed that it could consider defendant's voluntary intoxication in deciding whether he premeditated and deliberated. (CALCRIM No. 625.) Evidently it decided that he was not too intoxicated to premeditate. That was well within its purview.
Defendant also argues that he "could not have planned to commit a shooting in his mother's home with two witnesses in the house." His mother, however, was not home at the time, and the first thing he did was remove the body from the house. Sepulveda and Sandoval were his friends and "crimies"; moreover, it is inferable that he thought they would be too afraid to snitch. Sandoval testified that she had, in fact, received "multiple threats." Sepulveda testified similarly that there was a "green light" out for him.
We therefore conclude that there was sufficient evidence of premeditation and deliberation.
III
MEXICAN MAFIA EVIDENCE
Defendant contends that his trial counsel rendered ineffective assistance by failing to object to evidence regarding the Mexican Mafia (a/k/a the Eme).
A. Additional Factual and Procedural Background.
1. The prosecution's case in chief.
The prosecution introduced the following evidence regarding the Mexican Mafia. Defense counsel did not object.
a. Sepulveda.
Sepulveda testified that every Southern California gang member who goes to jail is a South Sider, but you have to "put in work" to become a Sureño. A South Sider might be ordered to beat someone up, but a Sureño could be ordered to stab someone.
He also testified that defendant had a "kanpol" tattoo, which is a South Sider or Sureño tattoo. It stands for 13, which stands for M, the 13th letter of the alphabet, which in turn stands for the Mexican Mafia. A kanpol tattoo has to be earned by "put[ting] in work."
b. Hernandez.
Hernandez testified that "street gangs are foot soldiers for the Mexican Mafia." They have to have the Mexican Mafia's "blessing" to operate. They also have to pay "rent" or "tax" to the Mexican Mafia. Hernandez was responsible for sending money on behalf of his gang to a Mexican Mafia member.
He defined a "South Sider" as any Southern California Hispanic gang member who goes to prison. A "Sureño" is a low-level associate of the Mexican Mafia. A Sureño has to volunteer to commit crimes on command.
Hernandez was the founding member of his and Sepulveda's gang, Yucaipa Travieso. To start the gang, he needed the permission of the Mexican Mafia. When he was in prison, he assaulted another prisoner so he would be moved to the Security Housing Unit (SHU), where a Mexican Mafia member was housed. He showed a friend of the Mexican Mafia member his "lock-up order," which proved that he was not a sex offender and not a snitch. The Mexican Mafia member then thanked him for committing the assault and gave him approval to start the gang. Since 2010, Hernandez had been a validated member of the Mexican Mafia.
In a letter, defendant told Hernandez he had been placed in Unit 5 of the jail, because he had been validated. Unit 5 was where they placed Sureños who caused trouble.
c. Courtney.
Courtney told the police that defendant talked to him when they were both housed in Unit 5. Defendant told Courtney he was "sending taxes upstate" to a Mexican Mafia member who was in prison.
Courtney also testified that Southern California Hispanic gang members in general have kanpol tattoos, not just Mexican Mafia members. A gang tattoo has to be earned, by "putting in work" — i.e., committing crimes.
On cross-examination, defense counsel additionally brought out that the Mexican Mafia can order a prison or jail inmate to stab someone.
d. Gang Expert.
The gang expert testified that Unit 5 houses validated prison gang members, associates and dropouts, as well as inmates who are being disciplined, inmates who have threatened staff members, and inmates who are escape risks.
Most Southern California Hispanic gangs are controlled by the Mexican Mafia, often by a member who is in prison. A "Sureño" is a Southern California Hispanic gang member. When in custody, a Sureño must do whatever the Mexican Mafia asks, including commit an assault or a murder.
He testified that defendant had a kanpol tattoo and that many other Southern California Hispanic gang members also have one. A kanpol tattoo must be earned. "[I]t shows your willingness to do work for the Mexican Mafia as a Sureño."
2. Objection and argument.
After the prosecution rested, defense counsel objected to asking defendant any questions about Unit 5. The trial court excluded this and any other evidence of defendant's disciplinary history while in jail.
Defense counsel then objected to any further evidence regarding the Mexican Mafia, as more prejudicial than probative. He observed that he "[p]robably should have made a motion in limine not to ever hear those words . . . ."
The trial court ruled: "I think the [kanpol] tattoo and how you get it . . . and then his understanding of the hierarchy and where he fits within that . . . , that's all relevant." On the other hand, "I don't think we need to have a discourse on the history of the Mexican Mafia and who runs it and who is in control of certain aspects or who they report to . . . ." It told defense counsel: "[Y]ou'll just have to object as the questions are asked. I have to hear the context in which they're asked and answered."
3. The cross-examination of defendant.
On cross-examination, defendant was asked what gang members generally do with the proceeds of drug sales. He answered, "I'm pretty sure everybody is aware that the Eme controls all of us, therefore, if you're collecting money, it's going to them." When he was selling drugs, he paid taxes to a Mexican Mafia member who was in prison. "Either you're going to or you're not gonna sell drugs."
In response to the prosecutor's questions, defendant testified that he was a Sureño, which meant being "willing to participate." A South Sider can be required to participate, but is not expected to volunteer.
If the Mexican Mafia "tell[s] you to assault someone, you assault them," "[o]r get assaulted yourself." Defendant had stabbed and assaulted people on the order of the Mexican Mafia, because he did not want to be assaulted. He had been in the SHU, "where violent inmates are sent[.]"
Defendant had a kanpol tattoo on his left ring finger, but when he got it, he was only 14 or 15; he knew it meant being a Southern California Hispanic gang member, but he did not know it meant the Mexican Mafia.
In 2011, he had been validated. This meant he was a gang member, but not necessarily that he was a Mexican Mafia member.
Defense counsel objected to the question about what validation meant, as irrelevant. Otherwise, he did not object to any of these questions.
B. Discussion.
As noted, defense counsel did not object to any of the evidence about the Mexican Mafia in the prosecution's case in chief.
When he did object, the trial court indicated that evidence regarding the gang hierarchy and defendant's place in it, as well as regarding defendant's kanpol tattoo, was admissible. This shows that if defense counsel had objected to such evidence earlier, the objection would have been futile. It follows that he did not forfeit defendant's contention that such evidence was inadmissible. (See People v. Brooks (2017) 3 Cal.5th 1, 92.)
On the other hand, the trial court also indicated that evidence of the history and structure of the Mexican Mafia was irrelevant. A timely objection to such evidence would not have been futile. Accordingly, defense counsel forfeited any contention that this evidence should have been excluded. (Evid. Code, § 353, subd. (a).)
"A criminal defendant's federal and state constitutional rights to counsel [citation] includes the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai, supra, 57 Cal.4th at p. 1009.)
"'[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citation.]" (People v. Carrasco (2014) 59 Cal.4th 924, 985.)
Preliminarily, defendant contends that defense counsel was ineffective in failing to file a motion in limine to exclude any Mexican Mafia evidence. As he concedes, however, the prosecution's trial briefs did not mention any Mexican Mafia evidence, and defense counsel could have been "relying" on this. To the extent that the evidence was inadmissible, he could reasonably assume that the prosecution would not try to introduce it. And, of course, to the extent that it was admissible, there were no grounds for a motion in limine.
The real issue, then, is whether he should have objected to it when it came in at trial.
To summarize, the Mexican Mafia evidence fell into six categories:
The evidence that defendant was in Unit 5 because he had been validated did not relate to the Mexican Mafia. He testified that he had been validated as a gang member, not as a Mexican Mafia member. The gang expert agreed that Unit 5 was for validated gang members, as well as others. Accordingly, defendant's contention regarding Mexican Mafia evidence does not apply to this evidence. (See Cal Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under a separate heading summarizing the point].)
In any event, the fact that defendant was in Unit 5 was relevant to corroborate Courtney's testimony that he talked to defendant when they were both in Unit 5. And the fact that defendant had been validated was relevant to the gang enhancements.
1. Evidence regarding defendant's kanpol tattoo.
2. Evidence that the Mexican Mafia controls Southern California Hispanic gangs.
3. Evidence regarding taxes.
4. Evidence regarding Sureños and South Siders and their respective duties to carry out orders of the Mexican Mafia.
5. Evidence that defendant had stabbed and assaulted people on the orders of the Mexican Mafia.
6. Evidence of how Hernandez got the permission of the Mexican Mafia to start up his gang.
For purposes of the gang enhancements, the prosecution had to prove that defendant was an active gang member. Eventually, he took the stand and admitted this. However, the prosecution could not know that he would do so; in fact, if it had not shown so conclusively that he was, he might not have admitted it.
Defendant's kanpol tattoo and testimony about its meaning were relevant to show that he was, in fact, a gang member. Testimony that the tattoo has to be earned by putting in work showed that he was an active, rather than a passive member.
Defendant argues that the tattoo was irrelevant, because the relevant gang was West Side Verdugo, not the Mexican Mafia. The evidence showed, however, that the kanpol identifies the bearer as a Southern California Hispanic gang member. Thus, it tended to confirm that he was a member of West Side Verdugo.
Evidence that defendant paid taxes to a Mexican Mafia member who was in prison was relevant to corroborate Courtney. According to Courtney, defendant said he was "sending taxes upstate[.]" The fact that this was true tended to show that the rest of Courtney's statement was also true. Thus, it was necessary to explain to the jury was taxes are and how they work, including that the Mexican Mafia controls all Southern California Hispanic gangs.
Evidence that Sureños and South Siders have to obey the orders of the Mexican Mafia and assault or kill people on command was relevant to show that witnesses would feel threatened. "'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and therefore is admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court.' [Citation.] 'Moreover, evidence of a "third party" threat may bear on the credibility of the witness, whether or not the threat is directly linked to the defendant. [Citations.]' [Citation.] 'It is not necessarily the source of the threat — but its existence — that is relevant to the witness's credibility.' [Citation.]" (People v. Sandoval (2015) 62 Cal.4th 394, 429-430.)
Courtney took the stand and testified that everything he told the police was a lie. The fact that there was a very real prospect of gang retribution tended to show that his statement to the police was the truth and his testimony at trial was the lie.
Sandoval and Sepulveda, on the other hand, testified against defendant, despite being threatened. The fact that a witness is willing to testify despite fear of retaliation tends to bolster his or her credibility. (People v. Myles (2012) 53 Cal.4th 1181, 1211.)
While there was already testimony that a person who snitches on a gang member is at risk of being assaulted, this additional testimony showed how readily such an assault could be carried out — especially against Sepulveda, Hernandez, and Courtney, who were in custody. As the People note, without this evidence, the jury may have wrongly thought that, because they were in custody, defendant could not get at them.
However, the evidence that defendant himself had assaulted people on the orders of the Mexican Mafia was different. This was evidence of prior "bad acts." As such, it was inadmissible to prove a propensity to violence (Evid. Code, § 1101, subd. (a)); we perceive no relevance for any other purpose. (See Evid. Code, § 1101, subd. (b).)
The evidence, however, while prejudicial, was only mildly so. Defendant had already testified that he had been a gang member for about 25 years, that respect is "the number-one rule" for gang members, and that a gang member "[c]an . . . achieve respect by assaulting people." On cross, he told the prosecutor, "[Y]ou probably wanna be the best lawyer you can be. So I wanted to be the best gang member I could be. So I learned quickly that . . . always having your hand raised and doing stuff, . . . you're gonna move up." Thus, it would not surprise the jury that he had actually assaulted people.
Moreover, from the evidence that defendant was a Sureño, that he had been in prison, and that Sureños in prison must follow an order from the Mexican Mafia to assault someone, it would have been obvious that defendant had assaulted someone (or at least that he was willing to do so, if ordered).
Significantly, he explained that he assaulted people only out of fear; if he had not obeyed, he would have been assaulted himself. This lessened the likelihood that the jury would infer a propensity to intentionally assault Acosta, without orders, outside of prison.
Finally, the evidence of how Hernandez got the permission of the Mexican Mafia to start up his gang was simply irrelevant. However, we cannot see how it was prejudicial. If anything, it tended to place Hernandez, who was a key witness against defendant, in a bad light — he admitted assaulting a fellow inmate just so he could get access to a Mexican Mafia member.
In sum, then, for various reasons, the bulk of the Mexican Mafia evidence was admissible. It follows that defense counsel did not render ineffective assistance in failing to object to this evidence. It further follows that defendant was not prejudiced, because any objection would have been overruled.
As we have held, defendant's admission that he had assaulted people on the orders of the Mexican Mafia was inadmissible. However, defense counsel could have made a sound tactical decision not to object to it. As noted, it was only mildly prejudicial. Indeed, defendant got to say that he assaulted people only to avoid being assaulted himself; this tended to mitigate his other testimony that he wanted to be the best gang member he could be and that he always had his hand raised to commit crimes. Defense counsel could also reason that objecting would only call attention to the admission.
The evidence of how Hernandez got the permission of the Mexican Mafia to start up his gang was likewise irrelevant. However, defense counsel could have chosen not to object to it because, again, it placed Hernandez in a bad light.
Last but not least, there is no likelihood that, if defense counsel had objected to these two inadmissible items of evidence, defendant would have enjoyed a more favorable outcome.
IV
PROSECUTORIAL ERROR
Defendant contends that the prosecutor committed error by violating a trial court ruling barring evidence of his misconduct in prison, and that his trial counsel rendered ineffective assistance by failing to object.
A. Additional Factual and Procedural Background.
As mentioned in part III.A.2, ante, before defendant took the stand, the trial court excluded evidence of his "disciplinary history" while in jail. This included evidence that defendant was "assaulting staff, threatening staff, bringing drugs into jail . . . ."
As also mentioned in part III.A.2, ante, there was a discussion of other subjects the prosecutor could ask defendant about, including the Mexican Mafia and his kanpol tattoo. At the end, the trial court told defense counsel: "[Y]ou'll just have to object as the questions are asked."
It is clear to us, however, that this comment did not apply to evidence of defendant's disciplinary history, which the trial court had already excluded. The People do not argue otherwise.
Nevertheless, on cross-examination, the prosecutor asked him:
"Q But have you assaulted people on the order of the Eme?
"A Yeah, 'cause I didn't want to get assaulted myself.
"Q Have you stabbed people on the order of the Eme?
"A On the order of — yes.
"Q Have you been to . . . special housing, better known as the SHU unit?
"A Yes.
"Q Where violent inmates are sent?
"A Yes."
B. Discussion.
"[I]t is misconduct to elicit or attempt to elicit inadmissible evidence in violation of a court ruling [citation] . . . ." (People v. Silva (2001) 25 Cal.4th 345, 373.)
"'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853-854.)
"'A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made "a timely and specific objection at trial" and requested an admonition.' [Citations.]" (People v. Potts (2019) 6 Cal.5th 1012, 1035.) Here, defense counsel did not object to the asserted prosecutorial error; thus, he forfeited it.
Defendant accordingly contends that his counsel's failure to object constituted ineffective assistance. As we already held in part III.B, ante, defense counsel could have made a sound tactical decision not to object. Moreover, this line of questioning was only mildly prejudicial, in light of the other evidence that defendant was ready, willing and eager to commit assault; there is no reasonable likelihood that, if defense counsel had objected, the outcome would have been different.
V
STIPULATION REGARDING THE PREDICATE OFFENSES
Defendant contends that his trial counsel rendered ineffective assistance by stipulating that the predicate offenses had been established.
A. Additional Factual and Procedural Background.
The prosecution introduced three "prior packets." Defense counsel stipulated that they established "adequate predicates."
One packet showed that Santino Greenough had pleaded guilty to unlawful possession of a firearm (§ 29800, subd. (a)), allegedly committed in 2012.
Another packet showed that Alberto Fernandez had pleaded guilty to second degree robbery (§ 211), allegedly committed in 2012.
The prosecutor described the third packet as "the prior packet of Augustine Beltran." It contained the complaint in case No. FVA 1100755, charging Augustine Beltran with four drug and firearm related counts. However, it did not show that Beltran had ever pleaded guilty or been convicted of any of those crimes. Instead, it showed that in case No. FWV 1100755, one Candace Linares had pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), allegedly committed in 2010.
B. Discussion.
Defendant does not argue that the reason why defense counsel should not have stipulated was that the third packet related to Linares rather than Beltran. The third packet was supererogatory; the prosecution was only required to prove two predicate offenses. (§ 186.22, subd. (e).)
Rather, defendant argues that it is "highly unlikely" that the prosecution could have proven that Greenough, Fernandez, and Beltran were members of West Side Verdugo. As he notes, in People v. Sanchez (2016) 63 Cal.4th 665, our Supreme Court held that an expert cannot testify to otherwise inadmissible "case-specific" hearsay. (Id. at pp. 670-671.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Defendant argues that whether Greenough, Fernandez, and Beltran were members of West Side Verdugo is a case-specific fact, and that it is unlikely that the gang expert had personal knowledge of it.
"[A] split of authority exists as to whether testimony about predicate offenses is case-specific information." (People v. Bermudez (2020) 45 Cal.App.5th 358, 377, fn. 13.) Hence, we will assume, without deciding, that it is.
Even if so, however, defendant cannot show that the gang expert did not have personal knowledge of the three individuals' gang membership. (See People v. Rodriguez Garcia (2020) 46 Cal.App.5th 123, 173-174 [gang expert had personal knowledge that certain persons were gang members], pet. for rev. filed Apr. 15, 2020.) And perhaps other police officers did. (See People v. Iraheta (2017) 14 Cal.App.5th 1228, 1248 [police officer witnesses had personal knowledge that certain persons were gang members].) He also cannot show that there was no admissible hearsay evidence of their gang membership. For example, they may have self-admitted; if, in addition, they would refuse to testify, this could be admissible as a declaration against interest. (Evid. Code, § 1230.) And he cannot show that there was no nonhearsay evidence of their gang membership. If necessary, the prosecution could have subpoenaed all three of them and asked them about it on the stand.
Thus, defendant cannot show that his counsel's stipulation constituted deficient performance or was prejudicial.
VI
FAILURE TO HOLD AN ABILITY-TO-PAY HEARING
Defendant contends that the trial court erred by imposing fines and fees without determining whether he had the ability to pay them.
A. Additional Factual and Procedural Background.
At sentencing, the trial court found that defendant did not have the ability to pay for his appointed counsel. However, it imposed a $10,000 restitution fine (§ 1202.4), a $10,000 parole revocation fine (stayed) (§ 1202.45), a court operations assessment of $80 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $60 (Gov. Code, § 70373, subd. (a)(1)).
B. Discussion.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process prohibits the imposition of a criminal fine or fee in the absence of a hearing on the defendant's ability to pay. (Id. at pp. 1160, 1164-1172.)
Preliminarily, the People contend that defense counsel forfeited this contention by failing to raise it below.
Recently, in People v. Jones (2019) 36 Cal.App.5th 1028, this court held that, when the defendant was sentenced before Dueñas was decided, failure to object does not result in forfeiture, because an objection would have been futile. (Jones, supra, at pp. 1031-1034.) It is significant, however, that in Jones, the trial court set the minimum restitution fine — $300. (Id. at p. 1030; cf. § 1202.4, subd. (b)(1).)
Thereafter, in People v. Taylor (2019) 43 Cal.App.5th 390, we put a gloss on Jones. We held that if the trial court imposes more than the minimum restitution fine, failure to object does result in forfeiture, even when the defendant was sentenced before Dueñas. (Taylor, supra, at pp. 399-401.) We explained that an objection would not have been futile because, even before Dueñas, the trial court could consider inability to pay, although only in deciding whether to impose a restitution fine in excess of the minimum. (Taylor, supra, at p. 399; see § 1202.4, subd. (c).)
Here, then, defense counsel forfeited any objection to the amount of the restitution fines, but not to the amount of the other fees. "As to those fees, the substantive law in existence at the time of his sentencing 'would have meaningfully foreclosed the argument he now seeks to advance.' [Citation.]" (People v. Taylor, supra, 43 Cal.App.5th at p. 401.)
Defendant does not contend that this constituted ineffective assistance. --------
Jones further held, however, that a Dueñas error may be held harmless if the record demonstrates that the defendant could not have shown inability to pay. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) In the case before it, it was clear that the defendant could pay the fines out of his prison wages; therefore, the error was harmless. (Ibid.)
The same is true here. As Jones noted, a prisoner can earn at least $6 a month, net after certain deductions. (People v. Jones, supra, 36 Cal.App.5th at p. 1035; see also Cal. Dept. of Corrections and Rehabilitation, Operations Manual, ch. 5, art. 12, § 51120.6, p. 347 (Jan. 1, 2020) https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2020/03/2020-DOM-02.27.20.pdf, as of May 29, 2020.) The fees imposed here totaled only $140. As defendant has been sentenced to 57 years to life in prison (after our modification), we are satisfied that he has the ability to pay.
VII
THE FIREARM ENHANCEMENT IN LIGHT OF SENATE BILL NO. 620
Defendant contends that he is entitled to a remand so the trial court can consider whether to strike the firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620).
SB 620 became effective on January 1, 2018. (Stats. 2017, ch. 682.) It amended section 12022.53 so as to give a trial court discretion to strike a firearm enhancement under that section. (§ 12022.53, subd. (h).)
When defendant was sentenced, on June 1, 2018, SB 620 was already in effect. His counsel did not ask the trial court to strike the firearm enhancement. Thus, he forfeited any contention that it should be stricken. (People v. Askey (1996) 49 Cal.App.4th 381, 388; see generally People v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant argues that his trial counsel rendered ineffective assistance in this respect. However, he cannot show prejudice, because it is not reasonably likely that the trial court would have stricken the firearm enhancement. The trial court imposed the upper term on count 2 and on the gang enhancement to that count, and ran every term consecutively; thus, it imposed the maximum sentence. Clearly it did not think defendant deserved any mercy.
Defendant points out that he "only shot one time" and "had been smoking methamphetamine." The trial court was well aware of both facts when it imposed the maximum sentence. Moreover, these facts are not strongly mitigating. Shooting only once could even be viewed as aggravating, because it suggests a cold and calculated act. And as the prosecutor pointed out in closing argument, defendant was not too high to wrap up the body, put it in the trunk of Acosta's car, drive to a remote area, dump it, and get rid of the gun.
Defendant also argues that the trial court may have been unaware of its discretion under SB 620. However, "[a]s a general rule '"a trial court is presumed to have been aware of and followed the applicable law."' [Citations.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.) In particular, "it is presumed that the trial court was aware of its sentencing discretion." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) On this record, we must assume the trial court did consider striking the firearm enhancement and simply decided not to.
VIII
PRIOR PRISON TERM ENHANCEMENTS IN LIGHT OF SENATE BILL NO. 136
Defendant contends that, under newly enacted legislation, his five prior prison term enhancements must be stricken. The People concede the point. We agree.
Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136), effective January 1, 2020, amended section 667.5, subdivision (b) so as to eliminate all prior prison term enhancements, unless the prior prison term was for a sexually violent felony. Defendant's were not. As an ameliorative statute, SB 136 applies to all defendants whose conviction is not yet final. (People v. Cruz (2020) 46 Cal.App.5th 715, 739; see generally In re Estrada (1965) 63 Cal.2d 740, 744-748.) Hence, we will strike the prior prison term enhancements and modify the sentence accordingly.
IX
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is modified by striking the five prior prison term enhancements. This reduces defendant's total determinate term to 7 years, and it reduces his total sentence to 57 years to life. The judgment with respect to the sentence, as thus modified, is affirmed. The superior court clerk is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.