Opinion
F070901
08-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JAIMEN GOMEZ GUZMAN, Defendant and Appellant.
Matthew A. Siroka, 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, Carlos A. Martinez and Jamie A. Scheidegger, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CM7156)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Matthew A. Siroka, 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, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Jaimen Guzman of felony witness intimidation and active participation in a criminal street gang. The jury also found a gang enhancement allegation to be true. In a separate bench trial, Guzman was found to have suffered two prior serious felony convictions and to have served a prior term of imprisonment. Because of his criminal history, he was subject to increased punishment under California's Three Strikes law. The trial court sentenced him to a total prison term of 36 years to life.
Guzman challenges the gang conviction and related enhancement finding on multiple grounds, including insufficiency of the evidence. These claims have merit. He also presents claims regarding the legality of his sentence, which we reject.
There is a separate issue concerning a motion for replacement of court-appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Guzman actually filed three such motions, all of which were denied. He has demonstrated procedural error by the trial court in its handling of the second Marsden motion, namely the failure to question defense counsel regarding certain allegations of deficient performance. As a result, we must conditionally reverse the judgment with respect to the conviction and sentence for the witness intimidation charge and remand the case for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
John Doe #1 and John Doe #2 are self-described ex-Norteno gang members, aka "dropouts." On March 15, 2014, both men were attacked by unidentified perpetrators who targeted them because of their dropout status. John Doe #1 was beaten with a crowbar and sustained a dislocated knee, among other injuries. John Doe #2 suffered a head injury from being hit with a hammer. This event is referred to in the record as the "Cost Less incident."
On March 18, 2014, John Doe #1 and his girlfriend, Jane Doe #1, spent the evening and early part of the next day visiting with John Doe #2 and Jane Doe #2 at the latter couple's home in Corcoran. At approximately 1:00 a.m., as John Doe #1 was leaving the residence, he encountered three people who were walking past the house on an adjacent street. The trio consisted of Juan Alvarez, Davon Daughtry, and Jaimen Guzman. John Doe #1 was acquainted with these individuals and knew that Alvarez and Guzman were "Northerners," i.e., Nortenos.
The record contains multiple alternate spellings of this individual's first and last name. We are using what appears to be the most likely spelling of the first name, and a spelling of the last name that was provided by the prosecutor at trial.
Upon seeing John Doe #1, Alvarez called out his name and said, "Come here." John Doe #1, who was on crutches and accompanied by his toddler-aged children, refused the request and told the group to "keep walking." This prompted an angry response from Guzman, who began moving in the direction of John Doe #1 and his family. Alvarez and Daughtry stood near the edge of the property but had no further interaction with the other parties. Jane Doe #2 contacted the police as these events were happening.
Guzman moved to within a few feet of John Doe #1, referenced the Cost Less incident, and said, "If you're snitching, I am going to give you the business." John Doe #1 understood this to mean Guzman would assault and/or attempt to kill him if he identified his attackers or otherwise cooperated with police in relation to the events of a few days earlier. Guzman also repeatedly declared, "I will do a life sentence for my homeboys [i.e., fellow gang members] if you're snitching." As he made these statements, Guzman "fiddled" with an object concealed in the front pocket of his hooded sweatshirt.
Guzman was still accosting John Doe #1 when officers from the Corcoran Police Department entered the neighborhood. Alvarez and Daughtry fled as the patrol car approached the residence. Guzman remained in front of the house, but removed a knife from his sweatshirt and flung it into the air. He was arrested at the scene. The knife was recovered following a search of the area.
The Kings County District Attorney charged Guzman with committing witness intimidation against John Doe #1 by means of force or fear (Pen. Code, § 136.1, subd. (c)(1); count 1); making criminal threats against Jane Doe #1 (§ 422; count 2); and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). Counts 1 and 2 included gang enhancement allegations pleaded pursuant to section 186.22, subdivision (b). Guzman was further alleged to have suffered two prior strike and serious felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and to have served a prior prison term (§ 667.5, subd. (b)). The case went to trial in December 2014.
Unless otherwise specified, all statutory references are to the Penal Code.
At trial, the alleged victims and other percipient witnesses testified to the facts summarized above. To prove the gang charge and related enhancement allegations, the prosecution relied on the testimony of an expert witness and an official from the Kings County Jail. A more detailed summary of the gang evidence is provided in our Discussion, post.
Guzman was convicted on counts 1 and 3, but acquitted of making criminal threats against Jane Doe #1 as alleged in count 2. The jury returned a true finding on the gang enhancement allegation for count 1 (§ 186.22, subd. (b)(4)(C)). The allegations concerning the prior convictions and prior prison term were found true in a bifurcated bench trial.
The witness intimidation conviction qualified as a third strike offense. Guzman was therefore sentenced on count 1 to an aggregate prison term of 36 years to life (25 years to life plus consecutive five-year terms for the prior serious felony convictions and a consecutive one-year term for the prior prison term enhancement). The same sentence was imposed for count 3 and stayed pursuant to section 654. This timely appeal followed.
DISCUSSION
Evidentiary Error
Some of Guzman's legal arguments are supported by the holdings of People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which were decided while this appeal was pending. These cases announced significant changes in the law with respect to the admissibility of incriminating statements made during jail intake interviews (Elizalde) and the use of hearsay in expert witness testimony (Sanchez). "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." (People v. Welch (1993) 5 Cal.4th 228, 237.) Accordingly, despite being raised for the first time on appeal, we address the claims of evidentiary error on the merits. Because these claims involve questions of law concerning whether the admission of certain evidence infringed upon appellant's constitutional rights, they are subject to de novo review. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
We note that Guzman's arguments are presented under the guise of ineffective assistance of counsel. This was done in anticipation of a forfeiture problem, but his approach is untenable for two reasons. First, a trial attorney "does not render ineffective assistance by failing to make motions or objections that [he or she] reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387 (Price); accord, People v. Anderson (2001) 25 Cal.4th 543, 587 (Anderson).) Second, in order to prevail on an ineffective assistance claim, Guzman would need to demonstrate that, but for the allegedly deficient performance, he would have achieved a more favorable outcome at trial. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland); People v. Johnson (2015) 60 Cal.4th 966, 980.) Had the appropriate objections been made, the trial court would have been obligated to overrule them in accordance with then-controlling case law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject the ineffective assistance of counsel claims.
Additional Background
Investigator Refugio Aguirre of the Corcoran Police Department testified as the People's gang expert. The expert had arrested Guzman in 2007 for writing gang-related graffiti on the walls of the Corcoran YMCA. He testified to overhearing Guzman claim membership in a "Norteno set" called Varrio Perry Heights, aka VPH, when he was booked into the Kings County Juvenile Hall for that offense. Investigator Aguirre's personal knowledge of Guzman's gang activity was limited to this one incident, which had occurred approximately seven years prior to the charged offenses.
Investigator Aguirre opined that Guzman was still an active gang member in 2014. His opinion was based largely on hearsay, i.e., the contents of police reports and information obtained from conversations with other police officers. In testifying to the basis for his opinion, he relayed hearsay concerning approximately 10 separate incidents wherein Guzman had allegedly engaged in criminal activity and/or associated with known gang members.
The expert also provided testimony that was essential to the People's effort to establish the "pattern of criminal gang activity" required for the gang participation charge and related enhancements. (§ 186.22, subd. (f); see further discussion, post.) He was asked to review three sets of certified Kings County court records before answering questions about the events to which each pertained. These documents were identified and admitted into evidence as People's Exhibits Nos. 2, 3, and 4.
People's Exhibit No. 2 shows that Guzman was convicted in 2012 of felony vandalism (§ 594, subd. (b)(1)) and active participation in a criminal street gang. The documents do not identify Guzman's specific gang affiliation. Based solely on his review of a police report, which was not in evidence, Investigator Aguirre testified to the underlying factual circumstances of these crimes and claimed Guzman was an active Norteno gang member at the time of their commission.
People's Exhibit No. 3 concerns S.L., who was under the age of 18 during the relevant time period of 2012-2013. S.L. suffered a juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)). The original wardship petition contained additional counts and allegations, including gang enhancements, but those charges were ultimately dismissed. The exhibit does not identify the gang with which S.L. was allegedly involved. Investigator Aguirre, again relying exclusively on his review of police reports, testified to the underlying factual circumstances and opined that S.L. was an active Norteno gang member at the time of the offense.
People's Exhibit No. 4 reflects that someone named Cameron Hernandez pleaded nolo contendre to charges of robbery (§ 211) and active participation in a criminal street gang in connection with events that occurred in 2011. The exhibit does not identify Hernandez's specific gang affiliation. Based on his review of a police report and a conversation with the arresting officer, Investigator Aguirre opined that Hernandez was an active Norteno gang member at the time of the offense. Sanchez
In Sanchez, supra, the California Supreme Court held that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. Here, a significant portion of Investigator Aguirre's testimony constituted inadmissible hearsay. For the reasons that follow, we conclude the admission of this evidence was prejudicial error.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination. (Id. at p. 59.)
Prior to Sanchez, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620; People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert witness's "basis testimony" to be compliant with the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
The Sanchez opinion holds that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the Sixth Amendment right of confrontation. (63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
"The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) However, the hearsay rule does apply to testimony regarding "case-specific facts," meaning "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) Unless subject to a statutory exception, such hearsay is inadmissible under state law. (Id. at pp. 674, 698; Evid. Code, § 1200, subd. (b).)
Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Sanchez, supra, 63 Cal.4th at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.) In light of these principles, it is clear that Investigator Aguirre related testimonial hearsay to the jury.
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
As alluded to in our synopsis of the gang evidence, Guzman was prejudiced by Investigator Aguirre's testimony regarding People's Exhibits Nos. 2, 3, and 4. In order to establish liability under section 186.22, a prosecutor must show the existence of a criminal street gang whose members "engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f); People v. Vasquez (2016) 247 Cal.App.4th 909, 922 (Vasquez) [" 'The existence of a criminal street gang is unquestionably an element of both the enhancement and the substantive offense.' "].) "A gang engages in a 'pattern of criminal gang activity' when its members participate in 'two or more' statutorily enumerated criminal offenses (the so-called 'predicate offenses') that are committed within a certain time frame and 'on separate occasions, or by two or more persons.' " (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
Despite the expert's hearsay testimony, People's Exhibit No. 2 was likely sufficient to establish one of the two predicate offenses required by the gang statute. A certified copy of an official record of conviction falls within a statutory exception to the hearsay rule (Evid. Code §§ 452.5, subd. (b), 1280), and the exhibit proved Guzman committed the qualifying offense of felony vandalism (see § 186.22, subd. (e)(20)) while actively participating in a criminal street gang. The same cannot be said of the other two exhibits. People's Exhibit No. 3 merely informed jurors that S.L. was adjudicated of committing assault with a deadly weapon. The allegedly gang-related nature of that crime and S.L.'s purported Norteno affiliation was conveyed through Investigator Aguirre's hearsay testimony. Similarly, People's Exhibit No. 4 revealed only that a member of an unidentified gang had committed a qualifying offense; the prosecution relied on its expert's hearsay testimony to prove the perpetrator was a Norteno.
The crimes reflected in People's Exhibits Nos. 2, 3, and 4 were used to establish the "pattern of criminal gang activity" element for count 3 and the gang enhancement under count 1. Without Investigator Aguirre's inadmissible testimony, the jury had no basis upon which to conclude that at least two of those crimes were committed by members of the same gang. We thus find prejudice under both the Chapman and Watson standards. In other words, there is a reasonable probability that Guzman would have achieved a more favorable result on the gang charges but for the erroneous admission of hearsay.
Our analysis might be different if the People had elected to use the charged crime of witness intimidation (i.e., count 1) as another predicate offense. It is settled that prosecutors can rely on evidence of the defendant's commission of a currently charged offense to satisfy the "pattern of criminal gang activity" requirement in section 186.22. (People v. Tran (2011) 51 Cal.4th 1040, 1046; People v. Loeun (1997) 17 Cal.4th 1, 10.) It is enough to show that a predicate crime was committed; proof of a conviction is unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524 (Garcia).) Witness intimidation in violation of section 136.1 is listed as a qualifying offense in section 186.22, subdivision (e)(8). Between the evidence of Guzman's guilt on count 1 and the certified record of his conviction of another qualifying offense committed less than three years earlier, the prosecution could have demonstrated that a member of the gang with which Guzman was allegedly affiliated had committed the required number of predicate offenses.
The problem for the People is that the prosecution's theory for the pattern of criminal gang activity requirement was strictly limited to the crimes documented in the exhibits. This self-imposed restriction was highlighted in closing argument and repeated in the jury instructions. The jury was instructed with a modified version of CALCRIM No. 1401, which stated, in pertinent part, "A criminal street gang is any ongoing organization ... [t]hat has, as one or more of its primary activities, the commission of felony vandalism in violation of Penal Code section 594(b)(1); attempted murder [sic] in violation of Penal Code section 245(a)(1); and robbery in violation of Penal Code section 211...."
The jury instructions confusingly omitted the statutory definition of a "pattern of criminal gang activity," which is ordinarily included in instructions based on CALCRIM No. 1401, but did contain the language of the pattern instruction that advises, "If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved." The inclusion of this sentence does not change our analysis. It would be unreasonable to assume jurors considered the count 1 offense to determine the existence of a criminal street gang when (1) the "pattern of criminal gang activity" element was not adequately explained to them and (2) the instructions only identified as qualifying offenses the crimes at issue in People's Exhibits Nos. 2, 3, and 4. Moreover, an appellate court cannot uphold a verdict pursuant to theories that were not presented at trial. (See People v. Kunkin (1973) 9 Cal.3d 245, 251 (Kunkin); People v. Lara (2017) 9 Cal.App.5th 296, 331; Garcia, supra, 224 Cal.App.4th at p. 525; People v. Smith (1984) 155 Cal.App.3d 1103, 1145 ["It would deprive the defendant of his right to a jury trial if an appellate court could [affirm a conviction] on a theory not presented to the jury ... ."].)
We find no prejudice as to the witness intimidation conviction. The material facts were uncontroverted and multiple eyewitnesses provided testimony that established each element of the offense. It is evident, beyond a reasonable doubt, that the jury's verdict for count 1 would have been the same regardless of its exposure to the inadmissible hearsay.
In summary, Guzman's count 3 conviction and the jury's true finding on the section 186.22, subdivision (b) enhancement under count 1 must be reversed because of Sanchez error. Turning to the issue of remedy, "where the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial." (Lockhart v. Nelson (1988) 488 U.S. 33, 34.) We must determine whether, regardless of prejudicial error under Sanchez, the prosecution presented substantial evidence to support the gang participation and enhancement charges. As explained later in the opinion, we agree with Guzman's argument that the gang evidence was insufficient in light of the California Supreme Court's decision in People v. Prunty (2015) 62 Cal.4th 59 (Prunty). Elizalde
Briefly, the Elizalde case instructs that questions about gang affiliation posed to an arrestee while processing him or her into jail do not come within the so-called "booking exception" to the requirements of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). (Elizalde, supra, 61 Cal.4th at pp. 531-535.) While it is permissible for jail officials to ask questions about gang affiliation during the booking process, the answers to such questions are inadmissible in a criminal trial unless they were preceded by Miranda admonitions and a waiver of the right to remain silent. (Elizalde, supra, 61 Cal.4th at p. 541.)
Guzman complains that the jury heard "several pieces of evidence derived from [his] jail classification interviews that should have been suppressed." Investigator Aguirre did testify to being informed that Guzman had admitted gang membership when booked into juvenile hall and the county jail. The prosecution also elicited testimony from a "detentions sergeant" at the Kings County Jail, Sheri Henderson, who claimed to be "familiar with Mr. Guzman due to past incarcerations" and have knowledge "of his gang affiliation prior to the most recent [arrest and] booking." Sergeant Henderson testified as follows: "I have known [Guzman] to be a Northerner claiming the set VPH, Varrio Perry Heights out of Corcoran. I know his moniker to be Shadow. And there were circumstances pertaining to him particularly that I needed to speak with him regarding his housing. ... [T]here was certain information that I was concerned about his status as a Northerner...."
The record does not indicate whether Guzman received contemporaneous Miranda warnings when he made the booking admissions or if Sergeant Henderson's knowledge of his gang affiliation was based on those admissions or obtained under other circumstances. It is unnecessary to resolve the questions of error and prejudice on this issue given our conclusion that reversal for evidentiary error is required under Sanchez. Were we to assume the existence of Elizalde error, we would find the error harmless as to count 1 for the reasons stated in our earlier prejudice analysis.
Sufficiency of the Evidence
Guzman contends that the evidence is insufficient to support his section 186.22 conviction and sentencing enhancement. The claim is well taken in two respects. Reversal is warranted under Prunty, supra, which holds that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.) There are independent grounds for reversal of count 3 under People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), which explains that a conviction for active participation in a criminal street gang requires proof of felonious conduct committed by at least two gang members. (Id. at p. 1132.) Neither of Guzman's companions were shown to have committed a felony during his encounter with John Doe #1.
Standard of Review
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) This analysis applies to every element of the offense. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.) In considering the record as a whole, we " 'must accept logical inferences that the jury might have drawn from the circumstantial evidence.' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.) " 'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work." ' " (People v. Raley (1992) 2 Cal.4th 870, 891.)
Analysis
Section 186.22, subdivision (a) criminalizes active participation in a criminal street gang. The offense has three elements: "First, active participation ... in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130.) Section 186.22, subdivision (b) is an enhancement provision that applies to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
As noted, the existence of a specific "criminal street gang" must be proven in order to establish liability for the substantive offense and enhancement provisions of section 186.22. (Vasquez, supra, 247 Cal.App.4th at p. 922; see Prunty, supra, 62 Cal.4th at p. 72, fn. 3.) The statute defines 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, or (31) to (33), 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." (§ 186.22, subd. (f).)
1. Prunty
In Prunty, supra, the California Supreme Court addressed the issue of "what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (62 Cal.4th at p. 67.) The defendant in that case self-identified as a " 'Northerner,' or a Norteno gang member, and described his membership in the Detroit Boulevard Norteno 'set.' " (Id. at p. 68.) The prosecution's theory vis-à-vis a section 186.22 enhancement allegation was that the defendant acted to benefit a larger Norteno gang entity comprised of multiple "subsets." (Id. at pp. 67-69.) To establish the existence of this "umbrella" organization, a gang expert testified to a pattern of criminal gang activity by members of different Norteno subsets in the Sacramento area. However, "[b]esides [the expert's] testimony that these gang subsets referred to themselves as Nortenos, the prosecution did not introduce specific evidence showing these subsets identified with a larger Norteno group. Nor did [the expert] testify that the Norteno subsets that committed the predicate offenses shared a connection with each other, or with any other Norteno-identified subset." (Id. at p. 69.)
The high court reversed the Prunty defendant's gang enhancement for insufficient evidence. It did so despite the expert's testimony that (1) Nortenos "share common names, signs, and symbols, including names derived from 'the north, Nortenos, [and] northerner,' the letter N, the number 14, and the color red;" (2) Nortenos share a common enemy in the Sureno street gang; and (3) Nortenos have a " 'street gang association' " with the Nuestra Familia prison gang. (Prunty, supra, 62 Cal.4th at p. 69.) For our purposes, the key holding of Prunty is as follows:
"[W]here the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. ... Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same 'group' that meets the definition of section 186.22(f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under section 186.22(b). But it is not enough ... that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Id. at pp. 71-72, italics added.)
In this case, Investigator Aguirre testified that Nortenos identify with the color red, the letter N, and the number 14, and are connected to the Nuestra Familia prison gang. The prosecution sought to prove the existence of "the Norteno criminal street gang," but Investigator Aguirre used plural nouns in some of his testimony, i.e., "Norteno street gangs" or "Norteno gangs." When questioned about the concept of gang subsets, the expert explained, "The Nuestra Familia is the main gang, prison gang. Nortenos fall under their umbrella so to speak. So there is thousands of Norteno sets, different gangs throughout the State of California, but they all fall under them, they are just different sets, but they're all united." On the topic of Guzman's membership in Varrio Perry Heights, aka VPH, Investigator Aguirre testified that VPH is "a gang out of Corcoran." When asked if VPH was part of a larger gang, he replied, "It is -- they are a Norteno set, so they are Nortenos."
The import of Investigator Aguirre's testimony is that all Nortenos are members of gang subsets, which are themselves part of a larger organization. This is consistent with the testimony of John Doe #1, who claimed to have once been part of the "same structure" as Guzman. He then clarified, "Norte. We were both Nortenos. We weren't in the same gang, but we were homies. ... [W]e were actually Northern homeboys, [i.e.,] friends, homies." (Italics added.)
Despite introducing the concept of subsets and alleging that Guzman belonged to a particular gang called VPH, neither the prosecutor nor Investigator Aguirre attempted to establish the required connection between VPH and the supposed overarching Norteno gang entity. The predicate offenses reflected in People's Exhibits Nos. 3 and 4 were allegedly committed by "Norteno gang members," but there was no evidence of the subset(s) to which the perpetrators belonged. Likewise, Investigator Aguirre testified (based on hearsay) that Juan Alvarez was a Norteno gang member, but there was no indication of whether he and Guzman belonged to the same subset.
To reiterate, the gang evidence in Prunty was deemed insufficient because the prosecution's expert had "simply described the subsets by name, characterized them as Nortenos, and testified as to the alleged predicate offenses. He offered no additional information about their behavior or practices that could reasonably lead the jury to conclude they shared an identity with a larger group. The jury was consequently left with no way to connect the subsets that committed the predicate offenses to the larger Norteno group the prosecution claimed [the defendant] acted to benefit." (Prunty, supra, 62 Cal.4th at p. 83, fn. omitted.)
Here, the People's evidence failed to "indicate whether the specific subsets involved in committing the predicate offenses have any ongoing relationship—the kind of relationship that amounts to being part of the same group—with the entity defendant sought to benefit." (Prunty, supra, 62 Cal.4th at p. 83.) Indeed, the subsets were not even identified for two of the three predicate offenses. As for VPH, the required associational connection to a larger Norteno gang was not established by Investigator Aguirre's conclusory statement that all Norteno sets are united under one umbrella organization. (Id. at pp. 84-85.) Therefore, under Prunty, Guzman's conviction for violating section 186.22, subdivision (a) and the true finding on the section 186.22, subdivision (b) enhancement allegation must be reversed for insufficient evidence.
2. Rodriguez
In Rodriguez, supra, the California Supreme Court determined that the Legislature enacted section 186.22, subdivision (a) "to punish gang members who acted in concert with other gang members in committing a felony." (Rodriguez, supra, 55 Cal.4th at p. 1138.) The statute "speaks of 'criminal conduct by members of that gang,' " with the phrase "that gang" referring to the gang in which the defendant is an active participant. (Id. at pp. 1131-1132.) Therefore, the crime of active participation in a criminal street gang "requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Id. at p. 1132.)
Guzman claims the People failed to prove that another gang member besides himself engaged in felonious conduct on the night in question. We agree. Guzman was accompanied by two individuals, Juan Alvarez and Davon Daughtry, and only Alvarez was alleged to be a gang member. The evidence showed Alvarez called out to John Doe #1, asking him to "come here," and remained at the scene when Guzman subsequently committed acts of witness intimidation in violation of section 136.1. Mere presence at the scene of a crime is not alone sufficient to establish criminal liability. (People v. Strickland (1974) 11 Cal.3d 946, 958.) Viewing the record in the light most favorable to the judgment, Alvarez's behavior cannot be construed as the direct perpetration of a felony.
The prosecution presented its case as if the elements of the offense were satisfied so long as Guzman committed a felony in the presence of another gang member. Respondent adopts the same position on appeal, submitting that "appellant knew he was in the presence of another gang member when he intimidated John Doe #1," and arguing "there was no evidence that appellant acted alone." These arguments cannot be squared with the holding of Rodriguez: "The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members...." (Rodriguez, supra, 55 Cal.4th at p. 1132.)
Although the evidence was weak, an argument could be made that Alvarez committed a felony by aiding and abetting Guzman's acts of witness intimidation. The problem, however, is the prosecutor explicitly told the jury during closing argument that aiding and abetting was not part of the People's theory of liability for count 3. Furthermore, the jury was not instructed on the concept of aiding and abetting.
If the jury's verdict on count 3 was to be based on a finding that Alvarez aided and abetted Guzman's commission of a felony, the jury needed to be instructed on the applicable legal principles. (See People v. Delgado (2013) 56 Cal.4th 480, 488 ["instructions delineating an aiding and abetting theory of liability must be given when such derivative culpability 'form[s] a part of the prosecution's theory of criminal liability...."].) The required instructions were not given. Again, we cannot uphold a verdict based on theories that were never presented to the trier of fact. (Kunkin, supra, 9 Cal.3d at p. 251 [appellate courts "cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule."]; Garcia, supra, 224 Cal.App.4th at pp. 525-526 [gang enhancement reversed where jury not instructed on the only viable legal theory supporting its verdict].)
Cumulative Error
Under the cumulative error doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Guzman raises the issue of cumulative error, which is moot with regard to count 3 and the gang enhancement for count 1. As to the conviction for violating section 136.1, based on our review of the record as a whole, we conclude all actual and alleged errors described in Guzman's briefing are collectively harmless.
Sentencing Issues
Dual Use of a Prior Conviction
Guzman asserts that the trial court made improper dual use of a prior conviction to impose a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement (§ 667.5, subd. (b)). The claim is based on the holding of People v. Jones (1993) 5 Cal.4th 1142 (Jones). Respondent concedes error. For the reasons that follow, we cannot accept the concession.
The People's evidence established the relevant criminal history: In 2012, in Kings County Superior Court Case No. 12CM7045 (Case No. 12CM7045), Guzman was convicted of felony vandalism and active participation in a criminal street gang. Using the vandalism conviction as the base term, the trial court sentenced him to two years in prison and also imposed a consecutive eight-month term for the gang offense (one-third of the middle term). In early 2014, in Kings County Superior Court Case No. 13CM7695, Guzman suffered a felony conviction for making criminal threats.
The trial court found the prior serious felony allegations to be true based on Guzman's 2012 conviction for active participation in a criminal street gang and the 2014 conviction for making criminal threats. He was also found to have served a prior prison term based on "the conviction for violating Penal Code Section 594(b) and Penal Code Section 186.22(a) [in] Kings County Superior Court Case No. 12CM7045." At sentencing, the trial court imposed two prior serious felony enhancements and a consecutive prior prison term enhancement without specifying the conviction upon which the latter was based.
In Jones, supra, the California Supreme Court condemned the use of a single prior conviction to impose both a prior serious felony enhancement and a prior prison term enhancement. "[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Jones, supra, 5 Cal.4th at p. 1150, italics added.) Guzman assumes his prior prison term enhancement was based on the gang participation conviction rather than the felony vandalism conviction. We, on the other hand, must view the record in the light most favorable to the judgment. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Making criminal threats and active participation in a criminal street gang qualify as serious felonies under the relevant statutory scheme (§§ 667, subd. (a)(4), 1192.7, subd. (c)(28), (38)), but vandalism does not. Assuming the trial court imposed the one-year enhancement based on the prior prison term served for the vandalism conviction in Case No. 12CM7045, Guzman's sentence does not violate the dual use prohibition described in Jones. (See People v. Ruiz (1996) 44 Cal.App.4th 1653, 1666-1671 (Ruiz); People v. Brandon (1995) 32 Cal.App.4th 1033, 1055.) "There was no requirement that the underlying convictions be based on charges which were 'brought and tried separately,' nor that appellant served 'separate prison terms' for those convictions." (Ruiz, supra, 44 Cal.App.4th at p. 1671.) In short, error has not been shown.
Cruel and Unusual Punishment
Guzman correctly observes that reversal of the gang conviction and enhancement finding is of little practical benefit to him since he must still serve 36 years to life under the Three Strikes law and other recidivism statutes. He thus implores us to find his sentence constitutes cruel and unusual punishment. "A defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Guzman's claim is forfeited, and we decline to exercise discretion to address it on the merits.
Since the issue was not raised below, Guzman alternatively presents his arguments in the context of ineffective assistance of counsel. We have already explained that an appellant must establish two things in order to prevail on an ineffective assistance claim: (1) the performance of his or her attorney fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland, supra, 466 U.S. at p. 687; Anderson, supra, 25 Cal.4th at p. 569.) "Prejudice requires 'a reasonable probability that a more favorable outcome would have resulted ..., i.e., a probability sufficient to undermine confidence in the outcome.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
As used in the Eighth Amendment to the federal Constitution, the phrase "cruel and unusual punishments" refers to "extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) The California Constitution forbids cruel or unusual punishment (Cal. Const., art. I, § 17), which precludes a sentence that is " 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) Our state's Three Strikes law has been upheld as constitutional in cases where its application resulted in sentences far more extreme than the one imposed against Guzman. (E.g., Ewing v. California (2003) 538 U.S. 11, 18, 30-31 (Ewing) [25 years to life under California's Three Strikes law for the theft of three golf clubs worth $399 apiece]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1086, 1093-1094 [third strike punishment of 25 years to life for stealing a pair of pants and attempting to make a fraudulent return for a refund].)
"Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494; see Ewing, supra, 538 U.S. at p. 21 [outside the context of capital punishment, cruel and unusual sentences are found only in " 'extreme' " and " 'exceedingly rare' " cases].) It follows that the defense attorney below could have reasonably determined that making sentencing objections would be an exercise in futility. (See Price, supra, 1 Cal.4th at p. 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile."].) Guzman also fails to show prejudice, as there is nothing in the record to suggest the trial court might have declined to impose the statutorily mandated sentence had his attorney objected on constitutional grounds.
Our conclusion is reinforced by the fact that Guzman purports to rely on cases addressing the legality of sentencing juvenile offenders to death or life without the possibility of parole. (E.g., Miller v. Alabama (2012) 567 U.S. 460; Graham v. Florida (2010) 560 U.S. 48; Roper v. Simmons (2005) 543 U.S. 551.) Since he was 21 years old at the time the offense and will be eligible for parole in his mid-50s, these cases do not assist him. We also reject as meritless all arguments that application of the Three Strikes law and/or section 667, subdivision (a) violates double jeopardy principles. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520 ["Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution."].) Marsden Claim
Guzman assigns error to the trial court's denial of a request for new counsel in the face of allegations that his attorney had not made sufficient efforts to locate and interview a potential defense witness. The witness was Davon Daughtry. According to Guzman, Daughtry was able and willing to provide exculpatory testimony on his behalf.
The issue of defense counsel's purported lack of effort to make contact with Daughtry was raised in two separate Marsden hearings. After careful consideration of the record, we conclude the trial court did not make an adequate inquiry regarding counsel's performance at the second hearing. The appropriate remedy is conditional reversal of the judgment and a remand for further proceedings.
Additional Background
1. First Marsden Hearing
Guzman's first Marsden motion was made on November 10, 2014, at a trial confirmation proceeding. A closed hearing followed, during which Guzman complained of being uninformed about his case and expressed general dissatisfaction with his court-appointed attorney. Defense counsel attempted to explain the main issue with better clarity, which led to the following exchanges:
Counsel: We had a prior trial confirmation where Mr. Guzman shared a witness with me the day of trial confirmation. The witness was mentioned in the police reports, but nobody could find him. I shared this witness's name with the People, advised them that he was in the police reports, but that after speaking with Mr. Guzman, I had to
make a good effort to contact him. The People agreed. We continued the case.
I provided Mr. Guzman today [with] a second copy of discovery from [the] one I provided him months ago. This one is redacted, I cannot provide him the names and addresses of the people in the reports. We're ready to go to trial.
Trial Court: And this individual that you were supposed -- or you were going to try and find, did you find that individual?
Counsel: We did not. The People did.
Trial Court: All right. And did they provide you any information?
Counsel: No. They're not going to call him as a witness.
Trial Court: All right. So you're ready for trial?
Counsel: I am ready for trial.
Trial Court: Mr. Guzman, anything else?
Guzman: So how's he not going to be a witness if he was there with me? That makes no sense.
Trial Court: Just because he's a witness doesn't mean that he's going to be called or that he should be called.
Guzman: Well, on their behalf. But [on] my behalf, yeah. Because he's my -- he's a witness, he the one --
Counsel: This is the witness that Mr. Guzman told me[,] at our last [trial confirmation hearing,] that he knew where he was [and] he was going to be here for trial. I said give me his address, I have to contact him. And he said, 'Nah, he's going to be here, don't worry about it.' I don't know what to say to that. I mean, I can't go contact some spirit or apparition out in the middle of Hanford somewhere.
We attempted to contact this witness for Mr. Guzman[.] ... [W]e are ready for trial.
Trial Court: Well, this witness that Mr. Guzman wanted you to talk to, what would this witness say? Best case scenario?
Counsel: My belief, according to Mr. Guzman, is that he would say the victim and the victim's family instigated offensive contact between the parties, and that Mr. Guzman had nothing to do with it, that he didn't threaten them, that he didn't assault them, that he never told them he would go to prison for life for his homies, that these people were just the instigators of the entire incident.
Trial Court: And the District Attorney knows where these people are at?
Counsel: Yes.
Trial Court: And you made no effort to contact them to confirm this?
Counsel: [The prosecutor] just told me this morning that she knew where they were.
Trial Court: All right, okay, so you just received this information. Is there any indication that these people are going to be at the trial? Did they subpoena [this] individual?
Counsel: I did not ask [the prosecutor]. ... I will certainly do that when she returns.
Trial Court: Well, this case was continued so that you could locate this witness and you -- Mr. Guzman --
Counsel: We couldn't.
Trial Court: Right, and because Mr. Guzman would not give you the address of this person.
Counsel: That's right.
Next, the trial court questioned Guzman about the accuracy of counsel's statements. Guzman acknowledged saying that he expected the witness to show up for trial, but denied withholding contact information. He explained: "I don't even know his address. I been telling him I don't know his address. He lives down the street from me. That's all I know." The trial court asked if defense counsel had been informed that the witness lived in Guzman's neighborhood, and Guzman responded affirmatively. The proceedings continued:
Counsel: I don't recall that statement. I know that they are friends. And Mr. Guzman told me he would be here. I advised Mr. Guzman [at] our last court appearance and today that saying a person is going to be here is not good enough for me to provide to the People; I need the person's name, birthday, I need to interview this person, determine if they have any prior criminal convictions, see if there's a bias involved. And the response was 'he'll be here. Don't worry, he'll be here.'
Trial Court: Is that true, Mr. Guzman?
Guzman: He's saying that he's ready but --
Trial Court: No, sir. Did you tell your attorney that -- that don't worry about this, that --that he will be at trial?
Guzman: I told him that he will come to trial.
Trial Court: Okay, just on his own.
Counsel: He's going to come in because he told my mom.
Trial Court: Okay. Very good. So there's no reason to continue this case?
Guzman: Well, I don't feel that he's going to -- like I don't feel like he's putting the effort in this. My life is on the [line] right here.
Trial Court: I understand that, sir, but we're talking about a witness. What's the name of this witness?
Guzman: His name is Von.
Trial Court: Von?
Guzman: Davon.
Trial Court: Davon. Okay. And you've talked to Davon?
Guzman: I haven't talked to him.
Trial Court: So you just like -- how do you know he's going to be here?
Guzman: He talked to my family.
Trial Court: Okay. So --
Guzman: He's a good friend. He's a good friend.
Trial Court: So you assured [defense counsel] that Davon would be here for your trial?
Guzman: Yeah.
Trial Court: Okay, so that's not an issue...
...
Trial Court: ... So now the reason why you want [defense counsel] to be relieved is [what]?
Guzman: ... Because I been like -- like before we even had all this talk, [and even before the trial was continued], I had told him to talk to this individual. But then that day came. A day before, what was it, like a day before I came to -- I don't know what day it was, but he had told me, he's like, 'Do you want me to talk to anybody?' I had jury selection or like trial confirmation or like what I'm having today, ... and he had told me do you want me to talk to anybody? I was like, 'Yeah, talk to these people. I been trying to tell you.' So that's why [the trial date was continued].
He just -- because he told me himself, he's like, wanted me to just take a deal. I'm like, 'No, I didn't do nothing, why should I take a deal?'
The reporter's transcript uses the alternate spelling of "Devon."
The hearing concluded with the trial court asking if Guzman had provided his attorney with a list of potential witnesses. Defense counsel acknowledged that Guzman had identified two individuals, one of whom was Davon. The motion was thereafter denied: "Mr. Guzman, [defense counsel] has been an attorney in this courtroom for ... [f]ive years. He's an excellent trial attorney. ... You better, you know, when he asks you for your witnesses, you need to give them to him, not 'they live down the street' or, you know. You could have made arrangements, apparently you were in contact with your family, you could have just asked your family, 'Hey, what's the address?' You had plenty of time to do this. But you seemed assured that this witness is going to appear, which maybe, maybe not. But you didn't give your - your - the information to the attorney so that he could track it down. ... I am denying your Marsden request and we are going to be confirming for trial."
2. Second Marsden Hearing
On December 8, 2014, the first day of trial, Guzman again moved for substitute counsel. A closed hearing was held. The proceeding commenced as follows:
Trial Court: Mr. Guzman, why don't you tell the Court why you feel as though your attorney is not properly representing you.
Guzman: Well, like I been telling for like statements and he says that there are statements made, but then he told me yesterday that there was never no statement made by these individuals. The person that was with me, he said the People found him, they got a statement, but then he is like, 'there is no statement ever made.'
Trial Court: Okay.
Guzman: He is like -- continues to lie to me about a lot of stuff.
Trial Court: What else? So you're saying that there is a witness [named Davon]?
...
Guzman: ... Yes, ma'am.
...
Trial Court: This person is not on the witness list that I can see.
Guzman: I told him yesterday.
Trial Court: Well, what does that mean? Is that a witness for you?
Guzman: Yeah. I told him the witnesses, that they were going to come. ...
...
Trial Court: [Counsel,] [r]efresh my recollection, is this the case where you're -- Mr. Guzman would not tell you the names of these people, that they were just going to mysteriously show up?
Counsel: Yes, same case.
Trial Court: All right, so, Mr. Guzman, you were told at that hearing that what those people are going to testify [to] need[ed] to be disclosed to your attorney so that he can tell the prosecution.
Guzman: I stated the names to him. I never said --
Trial Court: And you didn't tell [your attorney] how to get in touch with them, or what they were going to say, correct?
Guzman: That is what his private investigators are supposed to do their job, go talk to them. I don't know where they lived at.
...
Trial Court: ... What are the names of your witnesses?
Guzman: Davon.
Trial Court: Davon what?
Guzman: I don't know his last name.
...
Trial Court: All right, and you don't know Davon's last name?
Guzman: No.
Trial Court: What will happen, sir, is when and if I will state these names for the record, and I will also tell [the prosecutor], but if these people show up, we'll go from there. I don't know if they will testify or not, but we'll have a hearing on that.
Guzman: Can you read this?
Guzman provided the trial court with a handwritten letter, which further explained his reasons for wanting different representation. The letter identified a number of seemingly frivolous grievances. For example, Guzman claimed to have not "consented" to a continuance that was previously granted because his attorney had fallen ill. The letter also accused defense counsel of giving "confidential information" to the prosecutor. The latter complaint was connected to the issues regarding Davon Daughtry: "I had told my lawyer about a possible witness, concerning my case that I wanted him to send [an] investigator[.] Since that day my lawyer told the D.A. about a possible witness, in return the D.A. sent out investigators [and] police officers that have [harassed] and intimidated the witness. That is against my due process. They have taken pictures of him and discriminated against him and try to profile him because he is African. Now my lawyer is claiming that said witness never made a statement? Yet on my last court date ... he stated he did?" In addition, Guzman accused defense counsel of "refus[ing] to call any witnesses I may be requesting."
Elsewhere in the record, Davon Daughtry is described as an African-American male.
After reading Guzman's letter, the trial court focused on the allegation concerning disclosure of confidential information, attempting to explain that the law does not allow for surprise witnesses at trial. Next, the issue of the prior continuance was briefly addressed and impliedly rejected as meritless. The court then remarked that there was nothing improper about the district attorney's office sending investigators out to talk to witnesses. The hearing concluded with the following statements:
Trial Court: ...[A]ny other basis for your request to have [defense counsel] relieved as your attorney? Mr. Guzman, anything else?
Guzman: I don't know, ma'am, like --
Trial Court: Anything else?
Guzman: It is like everything I am saying doesn't even matter.
Trial Court: Well, sir, it seems you do not like what you're hearing, but I can't change that. We'll have this letter marked as an exhibit, it will be made part of the Marsden hearing. ... [Defense counsel], any comments?
Counsel: No.
Trial Court: Mr. Guzman, I am going to [--] based on what you have told the Court, I am going to deny your Marsden request, and we're going to proceed to the trial....
3. Third Marsden Hearing
Guzman also made a post-trial Marsden motion, which was heard on January 12, 2015. We make note of this event only to provide a complete procedural history. The motion was denied, and the issues raised therein do not impact our analysis of Guzman's claim on appeal.
Analysis
Criminal defense attorneys have a duty to " 'investigate carefully all defenses of fact and of law that may be available to the defendant, and if [counsel's] failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he was entitled.' " (In re Williams (1969) 1 Cal.3d 168, 175.) Put differently, "[c]ounsel's primary 'duty is to investigate the facts of his client's case ....' " (People v. Doolin (2009) 45 Cal.4th 390, 423.) There is an obligation "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Strickland, supra, 466 U.S. at p. 691.) "[A] defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation. [Citations.] California case law makes clear that counsel has an obligation to investigate all possible defenses and should not select a defense strategy without first carrying out an adequate investigation." (In re Edward S. (2009) 173 Cal.App.4th 387, 407 (Edward S.).)
An attorney's investigative efforts need not be exhaustive, and the threshold for effective assistance will depend on various factors such as "the strength of the government's case and the likelihood that pursuing certain leads may prove more harmful than helpful." (Strickland, supra, 466 U.S. at pp. 680-681; In re Andrews (2002) 28 Cal.4th 1234, 1254, 1256-1257.) "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." (Strickland, supra, 466 U.S. at p. 691.) However, the defendant's self-defeating behavior, including failure to cooperate with counsel, does not eliminate the requirement of " ' "diligence and active participation in the full and effective preparation of his client's case." ' " (People v. Ledesma (1987) 43 Cal.3d 171, 221-222; Edward S., supra, 173 Cal.App.4th at p. 416.)
If a defendant believes he or she is receiving ineffective assistance from counsel, the defendant may move to have counsel discharged and a new attorney appointed. (Marsden, supra, 2 Cal.3d at pp. 123, 125.) "Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity." (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman), italics added; accord, People v. Panah (2005) 35 Cal.4th 395, 432 ["Inquiring of counsel is necessary for the trial court to evaluate the defendant's request and for appellate review."]; People v. Turner (1992) 7 Cal.App.4th 1214, 1219 ["Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney."]; People v. Hill (1983) 148 Cal.App.3d 744, 753 (Hill) [same].)
Disapproved on an unrelated point as stated in People v. Sanchez (2011) 53 Cal.4th 80, 90, footnote 3.
A trial court's contingent duty to question counsel was first recognized in People v. Groce (1971) 18 Cal.App.3d 292 (Groce). (Hill, supra, 148 Cal.App.3d at p. 754.) The Groce opinion essentially holds that when a defendant asserts "specific important instances of alleged inadequacy of his representation," such as the failure to secure potentially exculpatory evidence, a Marsden motion cannot be denied without inquiry into the reason behind counsel's acts or omissions. (Groce, supra, at pp. 295-297.) Despite any practical likelihood that the motion is without merit, an inquiry is necessary to determine whether the challenged behavior constitutes "a matter of discretion or neglect." (Id. at p. 296.)
Guzman points out that his trial attorney represented him at the preliminary hearing on May 20, 2014, during which testimony was given regarding the first names of the non-victim eyewitnesses, i.e., Juan and Davon. The trial judge also presided over that earlier proceeding. Guzman calls into question defense counsel's statements at the first Marsden hearing when he claimed to have only learned about Davon at a trial confirmation appearance, and seems to suggest the trial court erred by failing to scrutinize counsel's actions from May 2014 onward. The trial court is also alleged to have erred by accepting without question counsel's blanket statement that he tried to locate the witness and was unable to do so. Guzman argues the trial court should have at least obtained assurances regarding counsel's commitment to further efforts in light of the prosecution's recent discovery of Davon's whereabouts.
We cannot fault the trial court for having no independent recollection of Davon's name being mentioned at a hearing held almost six months earlier. The judge properly ascertained the potential nature of the witness's testimony and asked questions sufficient to determine the current status of defense counsel's efforts to find him. It was permissible to accept counsel's representations at face value given (1) trial was still a month away and (2) very recent disclosures suggested there were other avenues of investigation yet to be pursued. Counsel specifically committed to having additional discussions with the prosecutor, at least to determine if the witness had been subpoenaed for trial.
The critical time period was the one-month interval between the first and second Marsden hearings. As things stood at the conclusion of the first hearing, Guzman was heading into trial with virtually no defense to the witness intimidation charge (save taking the witness stand, which defense counsel admittedly did not want him to do). His lack of cooperation with defense counsel did not absolve counsel of the duty to continue to make a reasonably diligent investigation into the existence and availability of an exculpatory witness. This was especially true given the prosecutor had not only located that individual, but also made a decision not to call him as a witness for the People. Pursuant to the authorities cited above, Guzman correctly argues that his attorney was not at liberty to simply abandon all efforts to contact Davon Daughtry.
According to defense counsel's statements, Guzman had not previously told him Davon lived "down the street" from his residence. If this was newly acquired information as of the first Marsden hearing, counsel was obligated to act accordingly, e.g., send an investigator to Guzman's neighborhood to see if Davon could be located. The first Marsden hearing also revealed that Guzman's mother had spoken to Davon about appearing at trial. If this constituted new information, the attorney could have asked the mother if she knew how to reach him. The trial court assigned that responsibility to Guzman, which may have been proper if and when the attorney was ignorant of the mother's contacts with Davon, but counsel could not subsequently ignore that information. Counsel could have also inquired of the prosecutor's willingness to provide the witness's contact information. These are merely examples. Defense counsel may have done some or all of these things, or taken other steps that satisfied his duty to investigate. The facts are unknown to us, and were also unknown to the trial court.
The prosecutor was not necessarily obligated to comply with such a request. The People have a statutory duty to provide, among other things, "[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial" and "[a]ny exculpatory evidence." (§ 1054.1, subds. (a), (e).) Of course, federal due process requires the prosecution to disclose evidence that is favorable to the accused and material to issues of guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87; People v. Burgener (2003) 29 Cal.4th 833, 875.) The duty to disclose such evidence is wholly independent of the prosecutor's obligation under section 1054.1 (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244) and encompasses both impeachment and exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676). --------
At Guzman's second Marsden hearing, he repeatedly complained of being told conflicting information by his attorney regarding whether the prosecution had obtained a statement from Davon. He also alleged having made a prior request to have a defense investigator contact Davon. When the trial court sought to confirm Guzman's failure to tell defense counsel "how to get in touch with [him] or what [he] was going to say," Guzman argued that contacting witnesses was the job of a defense investigator. In light of the facts and allegations presented at the first Marsden hearing, Guzman's complaints were "sufficient to raise a question about counsel's effectiveness" and thus warranted the questioning of defense counsel to ascertain whether effective assistance had been rendered. (Eastman, supra, 146 Cal.App.4th at p. 695.)
Failing to question defense counsel left open the issue of why an (allegedly) exculpatory witness had not been included on the defendant's witness list. Further, there was no resolution of the allegations concerning whether or not the prosecutor had obtained a statement from that witness. If Davon did provide a statement to the prosecution, was counsel aware of whether it had exculpatory or impeachment value? Guzman's complaints should have triggered an inquiry into whether defense counsel had made any further effort to locate Davon since the prior hearing. The trial court's lack of knowledge in that regard precluded it from making an informed ruling on the Marsden motion. Guzman has thus carried his burden of demonstrating error.
We are not unsympathetic to the reality of what occurred here. The trial court was presented with an unnoticed motion on the first day of trial and had little time to refresh its recollection of the pertinent facts. The motion was presented in an inarticulate fashion and supplemented by a handwritten document that only served to obfuscate the issues. It is understandable that the judge may have been distracted by the number of trifling complaints set forth in the letter. Nevertheless, Guzman's statements called into question defense counsel's trial preparation and fulfillment of the duty to investigate, which necessitated a direct inquiry into counsel's performance.
Remedy
The denial of a Marsden motion is ordinarily reviewed for abuse of discretion. (People v. Smith (2005) 135 Cal.App.4th 914, 926.) However, if the trial court commits procedural error in ruling on the motion, reversal is required unless the record establishes beyond a reasonable doubt that the error was harmless. (See Marsden, supra, 2 Cal.3d at p. 126; People v. Reed (2010) 183 Cal.App.4th 1137, 1148-1149 [reversal warranted given possibility that further judicial inquiry could have revealed ineffective assistance of counsel]; Eastman, supra, 146 Cal.App.4th at p. 697.) " 'Failure to inquire adequately into a defendant's complaints results "in a silent record making intelligent appellate review of defendant's charges impossible." ' " (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) As stated in Eastman, supra, "[b]ecause we do not know what [appellant] might have shown had he received a full hearing on his Marsden motion, we cannot say the error was harmless." (146 Cal.App.4th. at p. 697.)
Conditional reversal and remand is the appropriate remedy for a pre-trial Marsden error that potentially failed to expose ineffective assistance by appointed counsel. (People v. Minor (1980) 104 Cal.App.3d 194, 200 (Minor); cf. People v. Moore (2006) 39 Cal.4th 168, 174 [citing Minor with approval in a different context].) Originally employed by the First District Court of Appeal in Minor, supra, this remedy is based on the reasoning of an earlier case, People v. Vanbuskirk (1976) 61 Cal.App.3d 395: "[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand." (Id. at p. 405.) Our District has followed the procedures outlined in Minor on other occasions (e.g., People v. Lopez (2008) 168 Cal.App.4th 801, 815-816 (Lopez); People v. Maese (1985) 168 Cal.App.3d 803, 806, 808-810), and will do so again here.
We conditionally reverse the judgment and remand the case for a new Mardsen hearing, which is to be conducted in light of this opinion and the authorities cited herein. If the trial court determines that good cause for appointment of new counsel has been shown, it shall appoint new counsel and set the matter for retrial of the witness intimidation charge. If the trial court determines that good cause has not been shown, it shall reinstate the judgment as to the verdict and sentence for count 1 and all findings made in the bifurcated bench trial. (See Lopez, supra, 168 Cal.App.4th at p. 815; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400-1402; Minor, supra, 104 Cal.App.3d at p. 200.)
In closing, we echo the sentiments expressed in People v. Kelley (1997) 52 Cal.App.4th 568: "Nothing about our conclusion should indicate [appellant's] motion has merit. After inquiring of [appellant] and counsel, the court may determine his claims are not credible or counsel's actions were within the acceptable range of attorney conduct and strategy. We rule only that the court must [fully] consider the claim and exercise its discretion." (Id. at p. 580.)
DISPOSITION
Appellant's conviction for violating section 186.22, subdivision (a) is reversed. The true finding of enhancement allegations made pursuant to section 186.22, subdivision (b) is also reversed. Double jeopardy principles bar retrial of either charge.
As to the count 1 verdict and sentence for violation of section 136.1, the judgment is conditionally reversed and the matter remanded with instructions to the trial court to hold a new Marsden hearing pursuant to, and consistent with, the views expressed herein. If the trial court determines that good cause for appointment of new counsel has been shown, it shall appoint new counsel and set the matter for retrial of count 1. If the trial court determines that good cause has not been shown, it shall reinstate the judgment as to the verdict and sentence for count 1, including all related findings made in the prior bench trial.
If the judgment is reinstated, the trial court shall prepare an amended abstract of judgment reflecting the reversal of the section 186.22 conviction and enhancement finding, and send a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
MEEHAN, J.