Opinion
F070637
08-14-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYNA MARIE FLORES, Defendant and Appellant.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF281017B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Rayna Marie Flores appeals her conviction on one count of shooting at an inhabited dwelling (Pen. Code, § 246), with the special allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. (§ 186.22, subd. (b).) Prior to sentencing, appellant admitted to having one prior strike pursuant to sections 667 and 1170.12. In this appeal, appellant argues we must reverse the gang enhancement and her underlying conviction due to the improper admission of evidence regarding her status as a gang member. In particular, appellant contends the court improperly admitted statements she made during booking which violate her Fifth Amendment right against self-incrimination and opinion testimony regarding her and her companion's gang status based on testimonial hearsay that violated her Sixth Amendment right to confront witness. Appellant also raises ineffective assistance of counsel claims regarding the admission of this evidence. Finally, appellant claims the trial court violated her Fourth Amendment right to due process by failing to advise her of the potential consequences of admitting the alleged prior strike. For the reasons set forth below, we affirm in part and reverse in part.
All future references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2013, at around 3:30 a.m., a car drove down K Road in Visalia, Tulare County. The car stopped in front of the house of a known Sureño gang member who was part of the South Side Kings. A tall, heavyset, Hispanic male got out of the car from the driver's side, leaned over the car, and fired several shots at the house, striking the door at least twice. The gunshots caused a woman in the home to wake up. She ran to the window in time to see the shooter place the gun in his waistband and get back into the car. As the door opened, the woman was able to tell that the car was full. After the shooter got into the car, the group drove off.
A short time later, responding to a call about the shooting, City of Visalia Police Officer Tim Conners noticed a car with its lights off exiting a driveway onto K Road. He initiated a traffic stop. Appellant was driving. With her were three men, Alex Flores, Jacob Elms, and minor Manuel V. When questioned, appellant initially denied knowing anything about a recent shooting and claimed she had just dropped off a friend at a house. A search of the car uncovered a nine-millimeter pistol with a warm barrel, a bullet in the chamber, and one bullet remaining in the magazine. The warm barrel indicated someone might have fired the gun recently.
Appellant then identified Manuel V. as the shooter. At trial, appellant explained that she and Elms were roommates. On the night of the shooting, Elms called her, asking whether she would drive him home in his car because he had been drinking. Appellant agreed and went to where Elms was located. At first Elms and Flores, whom appellant knew from school, got into the car. Shortly thereafter, Manuel V. and another minor named Gabriel got in the car. Appellant claimed she had not met Manuel V. before that night and did not know he had a gun. She thought she was dropping him off near his home when he asked her to stop at the house on K Road. After the shooting, she panicked and drove off, eventually turning down an alley and dropping off Gabriel.
The People disputed appellant's claims that she did not know a shooting was going to occur. Rather, the People argued at trial that appellant was a Norteño gang member, who was assisting other gang members in carrying out the shooting. In support of this theory, the People called, as an expert witness, City of Visalia Police Officer Shane Logan, a member of the department's gang suppression unit. Officer Logan provided substantial testimony on gangs generally and on his opinion of appellant's gang membership and gang-related actions specifically.
Generally, Officer Logan provided a history of the Norteño and Sureño gangs, his experience with them, and gang culture in general. He explained how Norteños make money through criminal activities and identified certain markers of gang membership, including use of the color red and the numbers 4 and 14. Officer Logan noted, however, that recent trends have gang members attempting to hide their gang membership, cover up their tattoos, or avoid clear signs of gang affiliation in order to avoid police contacts. He also explained how members gain status through participation in gang activities and how members obtain monikers or nicknames.
With respect to gang member behaviors, Officer Logan explained that Norteños are generally required to inform other gang members when they have a gun, to allow for all members to act knowing a gun is present (either for personal safety, avoidance of the police, or to provide protection in criminal activities). Officer Logan also explained that Norteños have a no drive-by policy, although it is not universally enforced. Under this policy, a shooter must always have at least one foot on the ground when engaged in a shooting. Such shootings, particularly when focused on rival gang members' homes, Officer Logan testified, are ways to gain substantial respect within the gang, and all members in the car at the time of the shooting have a specific role to play. Officer Logan stated that Norteño gang members generally do not participate in activities with nongang members because the consequences of the criminal conduct are too high to commit the crimes with people you do not trust.
When it comes to classifying people as gang members, Officer Logan described a general 10-factor checklist that uses known information about the individual to determine whether they are a gang member. These factors include admitting gang membership; admitting gang membership in a custodial facility; associating with gang members; being named as a gang member by a reliable source such as a court; being involved in gang-related crime; having gang-associated tattoos; wearing gang clothing or attire; corresponding with gang members; possessing gang photos; and possessing gang material. According to Officer Logan, there are three general ways a gang expert will use these factors to conclude an individual is a gang member. First is admitting gang membership and satisfying any of the other factors. Second is admitting gang membership in a custodial facility, where concerns about protection and proper housing make a mere admission sufficient due to the threat of violence if wrongly classified. Third is meeting three or more factors without admitting membership.
Officer Logan then applied his checklist to appellant and the members of her car to provide a specific opinion on whether they were active gang members at the time of the shooting. Officer Logan opined that the four people found in the car were active Norteño gang members.
Concerning Elms, Officer Logan explained he had spoken with other officers about Elms, read reports about him, and researched police reports and field identification cards concerning Elms. Officer Logan opined Elms was an active gang member and later noted Elms satisfied three factors, associating with gang members, admitting to gang membership in a custodial facility, and being involved in gang-related crime. With respect to Flores, Officer Logan testified he relied on the same types of information and opined Flores was an active gang member who met four of the relevant factors, admitting gang membership in a custodial facility, associating with gang members, wearing gang clothing or attire, and being involved in gang-related crime. As to Manuel V., Officer Logan opined he was a member of both the Norteños and of the more exclusive North Side Visa Boys gang. Officer Logan based his opinion on multiple prior contacts with Manuel V.
Officer Logan provided a more detailed opinion regarding appellant's gang membership. In his opinion, appellant met seven of the factors for gang membership, admitting gang membership generally, admitting gang membership in a custodial facility, associating with gang members, being involved in gang-related crime, having gang-associated tattoos, wearing gang clothing or attire, and being named as a gang member by a reliable source. Officer Logan noted he relied on discussions with other officers, police reports, and field interview cards in reaching his opinion.
Officer Logan testified appellant's first gang-related contact was in October 2002, when appellant was 12, at which time she called another person a "scrap, which is a derogatory term for Sureño gang members" and had a red bandana hanging out of her pocket. He then identified two of appellant's current tattoos, a thug life tattoo and a North Star tattoo, as gang tattoos; explaining with respect to the North Star tattoo that several Norteño gang members had identified that type of tattoo to him as a gang tattoo. Officer Logan then identified several of appellant's former tattoos, now covered up or removed, as gang affiliated. Continuing in his analysis, Officer Logan noted appellant had previously admitted to an officer of the gang department that her moniker was Little Killer and that such a nickname suggested she was a violent criminal within the gang. Officer Logan further explained that appellant had been ordered to register as a gang member by the courts in 2005. On cross-examination, Officer Logan explained that appellant's admission in a custodial facility factor was satisfied because he learned appellant's jail housing was in an active Norteño unit. Further questioning suggested this placement had occurred due to appellant's responses to booking questions about known enemies.
A hearsay objection was raised and sustained following this line of questions. However, the People made no motion to strike any testimony and there was no admonition to the jury.
Having provided his opinion that appellant and her companions were active gang members, Officer Logan responded to a hypothetical question asking whether a group of Norteños shooting at the home of a rival Sureño's home would promote, further, or assist the Norteño criminal street gang in any way. Officer Logan stated it would, by increasing the status of the gang members involved in the shooting. On cross-examination, Officer Logan explained appellant's status would increase by acting as the driver because her acts conceal and assist everyone in the car, making her what is known as a "solid homeboy."
Finally, in testifying that the Norteño street gang is currently engaged in criminal activities, Officer Logan described two criminal cases, one involving a stabbing and the other involving a shooting, committed by Norteño gang members. When describing these crimes, Officer Logan relied upon conversations with officers involved in their investigation, reports from the cases, and conviction records to support his opinion.
In her trial testimony, appellant contended she had ceased claiming gang membership before she turned 18 and that she no longer associated with gang members. According to appellant, she claimed gang membership when she was around 12 or 13 to gain respect and belong to something. Appellant alternatively claimed that she was a gang member at that time and had admitted so to the police and that, although she claimed membership, she never actually joined the gang. Appellant testified that, while she had stopped putting in any work for gangs and began removing her gang tattoos around age 17, she could not avoid running into gang members in her community. With respect to her tattoos, appellant stated that, while some could consider her North Star tattoo gang-related, to her the tattoos represented things like family and heritage and were not gang related. On cross-examination, appellant admitted to the facts surrounding the "scrap" incident in 2002, including her contact with police at the time. Several pictures showing appellant in red clothing and showing her various tattoos were admitted into evidence and discussed with appellant.
Following the trial, the jury returned a guilty verdict on the shooting at an inhabited dwelling charge and found true the gang enhancement allegation. Prior to the jury reaching its verdict, appellant admitted to the prior strike allegation. In the admission colloquy, the court informed appellant of her right to have a jury decide the strike allegation, her right to compel witnesses to testify regarding the issue, and her right to cross-examine and confront witnesses on that allegation. Appellant acknowledged and gave up those rights. Appellant was ultimately sentenced to a term of 30 years to life, plus five years.
This appeal timely followed.
DISCUSSION
Appellant raises several constitutional and procedural issues. We do not need, however, to reach each issue to resolve this appeal. This is so because appellant's main objections relate to the allegedly improper introduction of certain evidence regarding her gang affiliations. In our analysis, infra, we identify a core set of evidence on this issue that is admissible or uncontested on appeal. Based on this evidence we conclude any error resulting from introducing the contested evidence is harmless with respect to appellant's conviction on the underlying offense of shooting at an inhabited dwelling. With respect to the gang enhancement, we find reversible error based on the improper admission of evidence regarding the alleged predicate offenses. Finally, we find reversible error with respect to appellant's prior strike admission. Confrontation Clause Challenges
In doing so, we assume appellant is correct that her custodial admission of gang membership was improperly introduced into evidence in light of People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde). Upon remand, the trial court should independently apply this precedent should the People seek to introduce appellant's custodial admissions.
Appellant's confrontation clause challenges relate to a large portion of Officer Logan's testimony. Appellant argues Officer Logan relied on testimonial hearsay to opine that appellant and the members of the car were all active gang members. Appellant contends Officer Logan's opinions on this point were based wholly on research and not on personal knowledge. Appellant also challenges Officer Logan's opinion regarding the gang enhancement's predicate offense requirement. Appellant concedes that the People properly admitted conviction records related to the identified offenses, but claims critical details related by Officer Logan come from unidentified conversations with other officers and police reports.
Standard of Review and Applicable Law
"The Sixth Amendment to the federal Constitution guarantees a defendant's right to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Harris (2013) 57 Cal.4th 804, 839-840.) Under federal confrontation clause jurisprudence, as interpreted by our California Supreme Court, at least two factors must be considered to determine whether a statement is testimonial. "First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (People v. Dungo (2012) 55 Cal.4th 608, 619.) However, "[i]t is evident that Sixth Amendment jurisprudence following the Supreme Court's decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) remains in considerable flux." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395.) Indeed, courts have spent significant effort collecting and summarizing the various permutations of the doctrine. (See, e.g., People v. Barba (2013) 215 Cal.App.4th 712, 714-733.)
In the course of this appeal, several aspects of this doctrine solidified in California, as expressed in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Sanchez considered "the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion." (Id. at p. 670.) Sanchez reasserted the historical distinction between case-specific hearsay and the general hearsay relied upon by experts to detail general knowledge in the expert's field of expertise. (Id. at pp. 675-678.) In doing so, it clarified that "[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Id. at p. 684.)
Having established this baseline, the court then considered whether certain types of hearsay evidence in gang cases are testimonial in nature and thus within the purview of Crawford's constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at p. 687.) The court detailed its understanding of the present evolution of what constitutes testimonial hearsay, explaining as a precursor, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.) It then recounted various permutations of the primary purpose test, before applying the overarching doctrine to certain evidence relied upon in reaching the gang conclusions in that matter. (Id. at pp. 689-694.) In its application, the court found that police reports are generally testimonial in nature, as are field identification cards written during the course of an active investigation. (Id. at pp. 695-697.) The court concluded the admission of such testimonial hearsay violates the confrontation clause. (Sanchez, at pp. 695-698.)
" ' " 'Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 873.) " 'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).)
We review whether the proffered evidence violated the confrontation clause and whether any such error was prejudicial, issues of law, de novo. (See People v. Stamps (2016) 3 Cal.App.5th 988, 992.)
The Issue Was Not Forfeited
Appellant's counsel did not object to Officer Logan's testimony. The People argue appellant therefore forfeited these claims. While the People's argument is tenable given that the Supreme Court had taken up Sanchez at the time of appellant's trial, we reject this argument given the state of the law at the time of trial. (See People v. Welch (1993) 5 Cal.4th 228, 237 ["Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence."].) Sanchez itself recognized that the paradigm in existence at the time held that an expert's testimony could relate facts typically considered hearsay provided the jury received a proper limiting instruction. (Sanchez, supra, 63 Cal.4th at p. 679.) The court then wholly rejected that paradigm and set forth the current test. At the time of appellant's trial, an objection under the confrontation clause would have been futile because the expert's testimony would not be subject to a hearsay objection and, thus, the evidence could not be testimonial hearsay. Accordingly, we will excuse appellant's lack of objection and review her contentions on the merits.
Portions of Officer Logan's Testimony Were Inadmissible
Given the guidance provided by Sanchez, it is apparent that some of the evidence introduced through Officer Logan was testimonial hearsay and inadmissible. For example, when discussing appellant's gang affiliation, Officer Logan relied upon police reports and notes generated when appellant was contacted after calling another person a scrap and throwing rocks. With respect to appellant's moniker, Officer Logan explained he learned of it based on contacts appellant had with a former member of the gang unit. On cross-examination, counsel demonstrated that this fact had to come from one of two contacts, either the scrap incident or a later contact leading to appellant's 2005 court ordered gang registration. As such, the record is minimally sufficient to demonstrate that these facts arose out of police investigations regarding criminal conduct. The facts contained in the reports and field identification cards are, therefore, testimonial hearsay and were inadmissible through Officer Logan. (Sanchez, supra, 63 Cal.4th at pp. 684, 695-698).
Likewise, Officer Logan relied upon police reports, related conversations, and unidentified gang information when detailing facts related to the predicate offense requirement of the alleged gang enhancement. The only independent evidence supporting the existence of these predicate offenses were the admitted records of conviction. These documents, however, did not contain any information regarding which gangs the defendants were associated with when committing the offenses. Thus, the evidence concerning the gangs involved in these predicate offenses was inadmissible testimonial hearsay.
However, contrary to appellant's claims, Officer Logan did not rely exclusively on inadmissible testimonial hearsay when recounting his opinion that appellant and the other members of the car were active gang members. Although appellant's counsel demonstrated her alleged gang affiliation contacts were related to police investigations, there was little to no evidence concerning how Flores or Elms had encountered the police. To the extent any evidence exists, it comes from Officer Logan explaining that many contacts with potential gang members are simply part of normal policing activities unrelated to crimes under investigation. The record is not sufficient with respect to these contacts to determine whether the hearsay evidence identified from them is testimonial. (See People v. Ochoa (2017) 7 Cal.App.5th 575, 584.) Appellant has thus failed to meet her burden of demonstrating error with respect to Officer Logan's opinions of Flores and Elms. (People v. Gamache (2010) 48 Cal.4th 347, 378; Ochoa, at pp. 584-585.)
The limited record also makes it impossible to determine whether counsel's performance was below acceptable standards, as there could be tactical reasons for failing to object and counsel was not asked for an explanation for not objecting on the record. (See People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).)
As to Manuel V., Officer Logan testified to having multiple prior contacts with Manuel V. and that, based on those personal contacts, he classified Manuel V. as a gang member. As Officer Logan based his opinion on personal information and was subject to cross-examination, his opinion that Manuel V. was a gang member was proper. (See Sanchez, supra, 63 Cal.4th at pp. 676, 680.)
Finally, with respect to Flores and Elms, Officer Logan told the jury he based his opinion, in part, on the fact that both had self-identified as gang members for classification purposes while in custody. This court has previously found that such statements, made by coconspirators and codefendants, are not testimonial hearsay because "from the perspective of either the person asking the questions or the person answering them," the primary purpose of asking such questions is not "to create an out-of-court substitute for trial testimony or to otherwise contribute to a criminal investigation or prosecution." (People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) As in Leon, the evidence adduced here shows that the primary purpose of the questions was to "further institutional security objectives, i.e., to ensure the safety of inmates and jail personnel." (Ibid.) As such, it was proper for Officer Logan to opine Flores and Elms were gang members based on their custodial admissions.
The Error Was Not Harmless With Respect to the Gang Enhancement
Appellant alleges the introduction of testimonial hearsay affected both her conviction under the gang enhancement and the underlying charge. We consider the gang enhancement first. In this analysis, determining if appellant suffered prejudice from the erroneous introduction of testimonial hearsay requires us to examine the "elements of the gang enhancement and the gang expert's specific testimony." (Sanchez, supra, 63 Cal.4th at p. 698.).
In order to convict appellant of the gang enhancement, the statutory scheme requires the People demonstrate the relevant gang engages in a pattern of criminal gang activity, proof of which requires the existence of at least two predicate offenses committed by members of the gang. (§ 186.22, subds. (b)(1), (e), (f); (People v. Loeun (1997) 17 Cal.4th 1, 8, 10 [predicate offense requirement can be shown through commission of current offense].) On appeal, the People rely exclusively on the two prior offenses described by Officer Logan to satisfy this requirement. The nonobjectionable evidence introduced regarding these offenses, however, does not contain any evidence they were committed by Norteño gang members. These offenses, therefore, cannot prove that appellant's criminal conduct was part of a pattern of Norteño criminal behavior. (See People v. Prunty (2015) 62 Cal.4th 59, 71 [when offenses are committed by different gang subsets, evidence must show the various subsets are related].) Accordingly, we cannot conclude the error in admitting evidence of the gangs involved in the predicate offenses was harmless beyond a reasonable doubt.
The Error Was Harmless With Respect to the Underlying Offense
In supplemental briefing filed in this matter, appellant argues we must also reverse her underlying conviction for reasons similar to the gang enhancement, specifically that there was no evidence of current gang membership and, thus, the jury could not have convicted without the evidence of her custodial admissions and related gang history. Appellant was convicted based upon an aiding and abetting theory. In her supplemental briefing, appellant argues her conviction turned on whether or not the jury accepted that the shooting was gang related, as all other evidence regarding her participation supported appellant's testimony that she did not know Manuel V. was going to commit the shooting when she dropped him off at the house.
Assuming appellant's factual contentions are correct and that the jury could not have convicted her absent a finding that she was an active gang member, we find the erroneous introduction of appellant's custodial admission and the improperly introduced testimonial hearsay evidence, discussed supra, regarding her gang affiliation, were harmless beyond a reasonable doubt. Officer Logan provided a legitimate opinion that appellant had gang tattoos, was associating with gang members, and was participating in gang-related criminal activity. With respect to that latter conclusion, Officer Logan properly detailed his opinion that the three identified members of appellant's car were all gang members, including based on personal interactions with the shooter Manuel V. Officer Logan also properly presented general expert testimony regarding gang rules and expected conduct regarding shootings, including a description of how Norteños require shootings to occur outside of cars, which matched the witnesses' description of the shooting in this case, and the fact that gang members would not normally participate in shootings with nongang members. All of this was strong circumstantial evidence that all members of the car were part of the same gang and provided evidence for the three factors, exclusive of any form of admission, that are required under Officer Logan's checklist to classify appellant as an active gang member. In addition, appellant herself admitted to previously being a member of the gang. Coupled with the evidence she was associating with gang members and the evidence that such shootings would not occur with nongang members present, the jury had before it multiple strongly supported bases for accepting Officer Logan's opinions, which were independent of the improperly introduced evidence. Ineffective Assistance of Counsel Claims
Although we did not independently analyze appellant's assertion of error on this point, assuming the evidence was erroneously introduced under Elizalde, we recognize that a determination of prejudice under both appellant's Fifth and Sixth Amendment challenges requires considering whether improperly admitted evidence could have swayed the jury in light of the evidence properly admitted. (Neal, supra, 31 Cal.4th at p. 86; Elizalde, supra, 61 Cal.4th at p. 542.) As such, we consider appellant's custodial admission to be improperly admitted evidence in our present analysis.
In light of our decision to consider appellant's claims on the merits, appellant's alternative arguments concerning ineffective assistance of counsel for failing to raise her constitutional claims are moot. However, appellant has raised one ground for ineffective assistance of counsel that requires additional consideration, whether she received ineffective assistance of counsel when her counsel failed to object under Evidence Code section 352 to the evidence relied upon by Officer Logan. We conclude she did not.
To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
" 'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' " (Hart, supra, 20 Cal.4th at pp. 623-624.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
On this record, we see no evidence counsel's failure to object under Evidence Code section 352 fell below an objective standard of care. The record does not demonstrate why appellant's counsel failed to object, but this is not a case where there is no potential satisfactory answer as to why.
"[E]vidence is substantially more prejudicial than probative within the meaning of Evidence Code section 352 if ' "it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." [Citation.] "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." ' " (People v. Paniagua (2012) 209 Cal.App.4th 499, 517.)
While there is some prejudice to the admission of nontestimonial hearsay evidence in the course of an expert explaining their opinion, such as the gang affiliation admissions of those in appellant's car, this evidence was only one factor in Officer Logan's analysis. It does not appear so prejudicial, on its face, that "its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (Evid. Code, § 352.) In light of the difficulty in succeeding on such an objection, trial counsel, in deciding not to lodge an Evidence Code section 352 objection, may have taken into consideration the likelihood that such an objection would have been overruled. Prior Strike Admission Claim
Appellant argues we should vacate her prior strike admission because she was not properly advised of the penal consequences of the plea. The California Supreme Court has explained that a defendant has a right to a trial on factual issues raised by the denial of a prior conviction allegation and, therefore, forgoing this basic protection must be done knowingly and intelligently. (People v. Cross (2015) 61 Cal.4th 164, 173 (Cross).) This requirement mandates that the defendant be advised of the privilege against compulsory self-incrimination, the right to a trial by jury, the right to confront one's accusers, and the full penal effect of a finding of the truth of an allegation of a prior conviction. (Id. at pp. 170-171.) An error in providing the necessary advisements is not reversible per se and the admission will be upheld " 'if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (Id. at p. 179.) In this analysis, we review the whole record, including any previous experience in the criminal justice system relevant to the defendant's knowledge and sophistication regarding her legal rights. (Id. at p. 180.)
The record demonstrates that appellant did not receive the full complement of admonitions required under Cross. While appellant was informed of her constitutional rights, she was not advised of the full penal effect of her admission. The record does not show appellant was aware her base term would double or that she would receive an additional five years under the sentence enhancements triggered by her admission. The People do not dispute this fact, but argue appellant was not admitting every fact necessary to trigger the enhancements—because she was not admitting the conviction on the underlying offense—and therefore was not entitled to the complete set of advisements. We do not agree.
Cross explains that one admits to the facts necessary to trigger sentencing enhancements when the admission covers " 'every fact necessary to imposition of the additional punishment other than conviction of the underlying . . . offense.' " (Cross, supra, 61 Cal.4th at p. 174.) In this instance, there were no additional facts, other than conviction on the underlying offense, needed to trigger the relevant enhancements once appellant entered her plea. Thus, the question becomes whether the plea was knowing and intelligent despite the lack of formal advisement. We conclude it was not.
It is true that the record contains affirmative evidence that appellant was aware of some of the consequences of admitting her prior conviction, including both the express admonitions given and the fact she made her admissions near the end of trial, showing she was aware of many of her constitutional rights. However, the penal consequences in this instance were neither minor nor obvious. We see nothing in appellant's knowing waiver of her constitutional rights to confront witnesses, receive a trial, or avoid self-incrimination, or in her prior penal history, which demonstrates she was knowingly and intelligently accepting the penal consequences of her prior conviction, which included doubling her primary sentence and adding another five years, if she was convicted following her admission. The People make no argument to the contrary.
As we find the admonitions were insufficient and the record does not demonstrate appellant's admission was knowingly and intelligently made, we find the admission ineffective.
DISPOSITION
The judgment is affirmed in part and reversed in part. The jury verdict on the gang enhancement is vacated, as is appellant's admission to having a prior strike. The underlying conviction is affirmed. The matter is remanded for further proceedings consistent with this opinion.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SMITH, J.