Opinion
F065549
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO LEGASPI, JR., Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, David Andrew Eldridge, and Max Feinstat, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1440820)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, David Andrew Eldridge, and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Jose Francisco Legaspi, Jr. (defendant) of first degree murder for being the driver of a vehicle used in a drive-by shooting. Related gang and firearm enhancement allegations were found true. Because the crime was committed under special circumstances (intentional killing by discharge of a firearm from a vehicle), defendant was sentenced to life in prison without the possibility of parole. In People v. Legaspi (May 1, 2014, F065549) (nonpub. opn.), we vacated certain fines and fees but otherwise affirmed the judgment.
Previously, defendant challenged his conviction on the basis of evidentiary error and instructional error. We concluded the trial court made a harmless error by omitting an instruction on determining facts based on the testimony of a single witness (CALCRIM No. 301). We also determined that the trial court's admission of prior bad acts evidence was within its discretion under Evidence Code section 352. Defendant further alleged a violation of his constitutional rights based on the admission of hearsay through testimony by the People's gang expert. The hearsay claim was denied pursuant to case law predating People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
The California Supreme Court denied defendant's petition for review "without prejudice to any relief to which defendant may be entitled" following its decision in Sanchez. The remittitur issued on July 14, 2014, and Sanchez was decided two years later. In May 2019, in light of the "without prejudice" language, we granted defendant's unopposed motion to recall the remittitur to permit reconsideration of the appeal to the extent Sanchez might compel a different result. The prior opinion was vacated, the appeal was reinstated, and the parties submitted additional briefing. The People concede Sanchez error occurred but argue it was harmless beyond a reasonable doubt.
This was a close case based on circumstantial evidence linking defendant to the vehicle used in the shooting. Defendant admitted to having an altercation with rival gang members while driving a black sedan. The shooting occurred approximately one or two hours later, but the vehicle used in the crime was a green minivan. Eyewitnesses described the shooter, who had fired shots from the front passenger seat, but nobody could recall any details about the driver. The People relied on the fact defendant's mother owned a green minivan; two witnesses who were shown a photograph of her vehicle said it was the one used in the shooting. Defendant denied culpability and presented an alibi, which was supported by the testimony of defense witnesses.
The erroneously admitted hearsay alleged defendant had driven a minivan on separate occasions while committing gang-related acts of violence. In one incident, defendant was "driving around in a green minivan" immediately prior to punching a female in the face and attacking her male companion with a baseball bat. On another occasion, defendant was reportedly driving a minivan when he attempted to run over a rival gang member. In a third incident, which did not involve a minivan, defendant fired gunshots at a truck driven by perceived rivals and was later found in possession of two handguns. The prosecutor highlighted these alleged incidents during closing argument. Although the People's case was relatively strong, the jury asked to review several pieces of evidence and did not reach its verdict until the third day of deliberations. For these reasons and others discussed herein, we cannot say the Sanchez error was harmless. The judgment will be reversed and defendant will be subject to retrial.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2009, shortly before 10:00 p.m., Modesto police officers were dispatched to the intersection of Lincoln Avenue and Japonica Way at the eastern end of the city. As indicated by graffiti throughout the area, the Norteño criminal street gang had claimed this neighborhood as part of its territory. Upon arrival, the police encountered a gunshot victim, Barkho Slefo. In a dying declaration, Slefo told police he had been shot by Sureño gang members who fired on him from a green minivan. He specified the shots came from "[t]he front passenger of the vehicle."
One of the victim's friends, Andrew G., spoke to police at the crime scene. Andrew recalled seeing a Hispanic male in the front passenger seat of a "dark minivan." He estimated this person was 25 years old and had a shaved head, goatee, and mustache. Andrew also said the man was a "scrap," which is a derogatory term used by Norteños to describe Sureño gang members.
A few hours later, an investigator from the district attorney's office conducted a recorded interview with witness Ruben L. Ruben identified himself as a Norteño, claimed the victim was also a Norteño, and said their gang affiliation was the reason someone had shot at them. He believed the shooting was an act of retaliation for an incident that occurred at a fast food restaurant approximately two blocks away from the crime scene.
Ruben claimed to have gone into the restaurant at approximately 7:00 p.m. to warn a female employee that some Norteño "homegirls" were planning to attack her. The employee was targeted because of her perceived allegiance to the Sureños. Ruben was attracted to the employee and did not know if she was a true "Sureña," so he decided to give her a "'heads up.'" He advised her, "'Be safe. Have somebody pick you up.'"
At approximately 7:45 p.m., Ruben returned to the restaurant and ordered food. When he exited the establishment, a black car with five occupants drove toward him and began flashing gang signs. The car had "R.I.P. Casper" written across the back windshield, which Ruben understood as a reference to a particular Sureño gang member. He assumed the female employee had called the people in the car because Sureños "never, ever" went into that neighborhood.
Ruben "whistled" for backup, and five or six "homies" came to his aid. The Norteños converged on the black car, which shifted into reverse and hit a tree. Ruben believed the force of the impact likely dented the rear bumper. His group attempted to open the front door and extricate the driver, but the car sped away. As it departed, Ruben heard someone say, "'We'll be back.'"
Ruben and his friends laughed about the incident and began wandering through the neighborhood, "just walking around everywhere" and drinking alcohol. At approximately 8:15 p.m., they observed "three carloads" of Sureños driving "in and out" of the area. One of the vehicles, a red Honda, made a U-turn, parked, and turned off its lights. The Honda eventually drove away, but Ruben and others "started getting on the phone and calling everybody ... [e]very homie [to say], 'Hey, get out here. We got a[n] issue.'" Ruben personally called Barkho Slefo to ask for his assistance.
Slefo met up with Ruben's group. He and Ruben were standing on the corner of Lincoln and Japonica when a green and beige colored "van" appeared. A man in the front passenger seat "hung out the window" and fired two rounds from a pistol. Ruben described the shooter as a bald Latino with a goatee, approximately 25 years old and wearing a blue and white striped shirt. Ruben sketched out a drawing of the van but did not provide a description of the driver.
The police knew defendant drove a black Mazda 626 with the words "R.I.P. Casper" written in "very large" letters across the back window. People who had seen it said the lettering looked like it was done with white shoe polish. The writing appeared on defendant's car soon after the death of Lucio "Casper" Lopez, who was murdered on March 10, 2009. Lopez was reputed to be a "shot caller" for the East Side Sureños gang in Modesto.
On April 14, 2009, the day after Slefo was killed, police went to defendant's home and took photographs of his black Mazda. The car was parked in the driveway, and defendant was not present when the pictures were taken. The photographs showed damage to the vehicle's rear end. The words "R.I.P. Casper" were no longer visible, but there were "remnants of a white substance" on the back window.
Based on the descriptions provided by Andrew G. and Ruben L., police suspected the shooter was a man named Jose Nunez. On April 21, 2009, police contacted Ruben to show him a photographic lineup containing Nunez's mugshot, which they had on file from an arrest the previous year. Ruben "looked at the lineup for quite some time" and "said he wanted to say it was [photo] No. 1 or No. 3." He ultimately selected the photo of Nunez, saying, "Looks like that [guy] right there."
On February 24, 2010, defendant participated in a noncustodial interview with Detective Philip Owen at the Modesto police station. The record does not explain why police waited 10 months to question defendant about the homicide. Detective Owen testified he reached out to defendant after receiving information "that there was a threat on his life and he might not be around much longer."
Defendant spoke with Detective Owen for over an hour, but most of the time was consumed by irrelevant small talk and the detective's own narrative statements. He later explained this was a technique designed to establish a rapport with the suspect. Defendant acknowledged his prior involvement with a gang—he never specified which one—but claimed to have abandoned that lifestyle. At the time of the interview, the 19-year-old defendant was working at a grocery store and taking classes at a community college.
Defendant admitted he drove to the fast food restaurant on the night of the shooting but denied it had anything to do with a female employee. He claimed to have driven there as a favor to his "little cousins" because they and their friends were "high" and wanted to "buy munchies." Defendant identified his passengers by name, insisted none of them were gang members, and said that in terms of any gang associations, his cousins actually "kick it with Northerners."
In defendant's telling of the events, a group of strangers ran up to his car as he was approaching the restaurant. They acted hostile and were saying something about his "homie Casper." Defendant backed up to leave and crashed into a stationary object—either a sign or a tree—then drove straight home and dropped off his passengers (the cousins lived next door to him). On his way home, defendant called his older sister and told her about the car accident.
Detective Owen told defendant the police had already subpoenaed "phone records that show who you called and the location you were when you made the phone call.... [¶] ... [¶] [So] we know where you were when you made the phone calls because of the [cell] towers." This may have been a ruse, but defendant maintained he went home, examined the damage to his car, changed his clothes, and got a ride from his sister to the residence of a friend, Jaime H. When asked if Jaime was a Sureño, defendant replied, "No. He associates with them though." Defendant said he had known Jaime since childhood and emphasized, "He's a real friend. He's not like a gangster. He's not with that. He's like a friend—a real friend."
Defendant claimed to have gone to Jaime's house at approximately 8:20 p.m. to celebrate the news that Jaime's girlfriend was pregnant and Jaime was going to be a father. Defendant stayed there until sometime after 10:00 p.m., when he called his sister for a ride home. Detective Owen asked, "So you called your sister to get a ride?" Defendant answered, "Yeah. So you could check the phone records."
Neither side introduced any phone records at trial.
Detective Owen was aware Sureños identify with the number 13 and he speculated defendant's gang chose the 13th day of the month as a symbolic occasion to avenge the death of "Casper." Defendant replied "yeah" when Detective Owen said, "April the 13th would be a good day for a Sureno to kill a Norteno and would give him bragging rights, would it not?" The People would later argue defendant's reaction to the detective's theory was an "adoptive admission." However, defendant said "yeah" over 50 times in response to Detective Owen's various questions and statements about the murder. Defendant actually disagreed with the detective's theory, stating, "I don't know. Why not then every 13th somebody die or something?... [¶] ... [¶] ... I think it's a coincidence that it fell on that day." When accused of participating in the shooting, defendant denied any involvement (e.g., "I wasn't there") and said he did not know who committed the crime.
Detective Owen showed defendant a photograph of his mother's vehicle and asked, "Recognize that? [¶] ... [¶] What is it?" Defendant answered, "Yeah. [¶] ... [¶] My mom's van," but he made no admissions regarding its alleged use in the shooting. The picture had been taken a few days prior to the interview. The detective also showed defendant a photograph of the primary suspect, Jose Nunez, and asked, "Was he the shooter?" Defendant replied, "I don't think so." Detective Owen told defendant he could answer "I can't say" as an alternative to lying. Defendant sought to clarify whether "I can't say" meant the same thing as "I don't know," and Detective Owen explained the difference between the two responses. Defendant admitted knowing Nunez but said, "I don't know if he was the shooter. [¶] ... [¶] I'm not lying to you. [¶] ... [¶] I don't know if he's the shooter." He also denied calling or meeting up with Nunez on the night of the murder.
Defendant left the police station during a break in the interview. He did not tell the detective he was leaving, and he left his cell phone behind. A warrant was issued for his arrest the following day, but the police were unable to locate him. Defendant failed to show up for work or school, and efforts to surveil his family members produced no leads regarding his whereabouts.
A few days after defendant's interview, police executed a search warrant at the home of the suspected shooter, Jose Nunez. The search yielded a box of ammunition and a piece of paper containing the words "One Heart" with a line drawn through the N. According to the People's gang expert, Sureños often cross out the letter N in their writings because they consider it to be "related to the Norteños street gang." The record does not indicate whether Nunez was ever prosecuted for the death of Barkho Slefo.
In January 2012, nearly two years after his disappearance, defendant was arrested while attempting to enter the United States from Mexico. He was brought back to Stanislaus County and charged with committing first degree murder under special circumstances. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(21).) The one-count information included gang and firearm enhancement allegations. (Id., §§ 186.22, subd. (b)(1)(A), 12022.53, subd. (d).) A jury trial commenced in April of the same year.
Prosecution Case
Andrew G. and Ruben L. testified to having almost no memory of the shooting or what they had said during the homicide investigation. The prosecutor called this "gangster amnesia" and attributed it to a Norteño code of silence. Andrew and Ruben were impeached with testimony from the officers who had taken their statements. The jury was also shown a recording of Ruben's interview.
C.A. was Ruben's girlfriend at the time of the shooting. She and her sister, Amanda, accompanied Ruben to the fast food restaurant and were also present when Barkho Slefo was killed. C.A.'s account of the restaurant incident matched defendant's version and conflicted with the story Ruben had told police. Ruben said the black "R.I.P. Casper" car approached him as he was exiting the restaurant. He also claimed to have been alone at the time. C.A. testified she, Ruben, and others were walking toward the restaurant when the black car pulled up to it. Ruben and a male companion "started running toward the car," and when they reached it, "the car backed up quickly and hit the tree." When Ruben pulled opened the driver's side door, "the car sped off and almost hit [C.A.] and a couple of girls" in their group. C.A. did not hear anyone in the car say "we'll be back" or words to that effect.
C.A. testified the interval between the restaurant encounter and the drive-by shooting was approximately one or two hours. Barkho Slefo briefly met up with their group after the first incident, departed, and came back a second time, which is when he was killed. C.A. recalled seeing the "R.I.P. Casper" car return to the area about 30 minutes after the initial confrontation, but it drove off without incident. Later, a green van approached Lincoln Avenue from Japonica Way and paused at a stop sign. While stopped, the van's front passenger catcalled her and made vulgar remarks. The van "left and then it came back about 20, 30 minutes later," traveling the same route as before and, as it "roll[ed] through the stop sign," the passenger yelled more "vulgar words" at her. After seeing the van turn onto Lincoln, she heard two gunshots. Once she realized the victim had been shot, C.A. called 911.
When shown the photograph of defendant's mother's vehicle (exhibit 2), C.A. identified it as "[t]he van that pulled up next to me." She was unable to describe the van's occupants except to say the passenger appeared to be Hispanic. The prosecutor asked C.A. to review a photographic lineup containing a picture of the alleged shooter, Jose Nunez, and she testified none of the people looked familiar. Defense counsel asked her about the reports of a red Honda driving through the area, and she responded, "I don't remember that."
The testimony of C.A.'s older sister, Amanda, also portrayed Ruben as the initial aggressor outside of the restaurant. Amanda identified defendant as the driver of the "R.I.P. Casper" car and claimed to have heard him say, "'We'll be back, bitches.'" However, unlike her sister, she testified defendant's black car did not return to the area. Amanda estimated the time between the restaurant confrontation and the shooting was two hours or longer.
Amanda recalled seeing a red Honda with a single occupant drive up and down Lincoln Avenue three times, occasionally stopping to "rev up its engine really loud." The Honda finally parked and remained stationary for at least 45 minutes to an hour before driving away. Amanda observed the Honda from the corner of "Redbud," which she described as being on the opposite side of the Lincoln/Japonica intersection from where Slefo was shot. She was attending a barbeque at a house on Redbud and testified that C.A. was with her "the whole time." Amanda's testimony did not mention a green van appearing 20 to 30 minutes prior to the shooting or its passenger making vulgar comments to her sister.
Within minutes of the red Honda's departure from Lincoln Avenue, Amanda heard gunshots, ducked down, and looked up in time to see a moving vehicle. She explained: "I seen the back of it and a little bit of the back tire and the back of it. I'm sure it was a green van with silver trim, that's all I remember, and silver lining." The prosecutor questioned her about exhibit 2, but she did not identify the depicted vehicle as the one involved in the shooting.
Witness Ashley N. was out on a date with Barkho Slefo the night he died. They were driving to Salida when Slefo received a phone call and immediately turned his car around. He proceeded to the intersection of Lincoln and Yosemite, arriving there sometime between 8:45 p.m. and 9:00 p.m. Slefo initially parked in the middle of the street and got out to speak with a group of people. A few minutes later, he moved the car to a "side street" and instructed Ashley to wait there while he conducted his business. It was dark outside but the area was illuminated by street lights.
While seated in the victim's car, Ashley saw a green van enter the four-way intersection of Lincoln and Japonica. The van was moving "fast," and when it was about "[m]idway through the intersection," she heard a series of gunshots. The prosecutor asked Ashley to look at exhibit 2, and she testified, "That's the van that pulled out." When questioned about the van's occupants, she said, "I didn't see anybody."
The People's additional gang evidence is summarized in Discussion, post.
Defense Case
Defendant's sister testified she was home when defendant left to drive his friends to the fast food restaurant, and she later received a call from him regarding the damage to his car. When defendant returned, they talked some more and she gave him a ride to the home of Jaime H. She dropped him off between 8:00 p.m. and 8:30 p.m. Jaime did not take the stand, but his girlfriend (B.R.) and sister (M.L.) both testified defendant attended a party at their home on the night of the shooting to celebrate the news of B.R.'s pregnancy. B.R. and M.L. confirmed defendant was dropped off sometime after 8:00 p.m. and stayed for most of the party, which ended around midnight or 1:00 a.m.
On cross-examination, the prosecutor tried to show Jaime was a Sureño gang member and not just an associate as defendant had alleged in his police interview. The witnesses denied Jamie was part of a gang, and the prosecutor attempted to impeach them with photographs of Jaime's tattoos and material on his MySpace social networking Web site page. B.R. claimed ignorance of the tattoos' meaning, but the other witnesses opined the letters E and S, the words "East Side Modesto," and the area code 209 were merely indicative of where Jaime had grown up.
To mitigate the evidence of defendant's flight to Mexico, defense counsel briefly questioned Detective Owen. This served as a reminder that the police believed defendant's life was in danger when they interviewed him, and it further revealed someone had fired gunshots at defendant's house subsequent to the interview. Defense counsel also noted a part of the interview wherein defendant claimed to have been falsely accused of involvement in a prior homicide and was cleared after he produced work records supporting an alibi.
Defense counsel argued, "[I]t's pretty clear in this case that the van in question wasn't even [defendant]'s mom's van." Counsel pointed out that none of the witnesses had been able to provide the make, model, or even a partial license plate number to police. At best, he argued, there were generic descriptions of a green minivan and some witnesses remembered additional colors of beige or silver. Counsel further argued defendant's body language and demeanor during the interview with Detective Owen was consistent with that of someone "getting accused of something he didn't do."
Jury Deliberations and Verdict
The jury deliberated for at least 11 hours. On the first day of deliberations, jurors asked to review the testimony of C.A., Amanda, and Ashley "regarding [the] events at [the] intersection of Lincoln and Japonica." The trial court interpreted this to mean the entirety of Ashley's testimony and all testimony by C.A. and Amanda except the parts about the restaurant incident. On the second day of deliberations, jurors asked to view the recorded interviews of defendant and Ruben L. The next morning, following additional deliberations of an unspecified length, the jury returned its guilty verdict.
DISCUSSION
The People do not dispute defendant's claim of Sanchez error. In Sanchez, 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. (Sanchez, supra, 63 Cal.4th at pp. 676, 684-685.) Factual assertions are "case-specific" if they relate "to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
"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." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) The People concede testimonial hearsay was erroneously admitted at trial, so our focus is on the question of prejudice. A summary of the admissible and inadmissible gang evidence will precede the prejudice analysis.
1. Admissible Gang Evidence
Detective Robert Gumm served as the People's gang expert. He testified to his knowledge of an ongoing feud between two criminal street gangs: the Norteños and the Sureños. In addition to other signs and symbols, Norteños identify with the color red and the number 14. Sureños identify with the color blue and the number 13. Reputation and respect are very important to these gangs, and members are supposed to retaliate with violence against any acts of disrespect by a rival.
During the relevant time period, Norteños outnumbered Sureños by a wide margin in Stanislaus County. The Sureños had approximately seven or eight "subsets or subgroups" in the Modesto area, including the East Side Sureños (ESS). ESS, also known as East Side Trece, had approximately 15 to 20 members. They resided in the "Airport District" of Modesto, "which is basically Yosemite [Boulevard] south to the river, and from the airport or even Mitchell Road west to the Gallo property or Dry Creek." However, according to Detective Gumm, the "airport Norteños" claim this area as their territory and "have been entrenched there for decades."
In March 2009, Lucio "Casper" Lopez was shot to death inside the doorway of his home by a suspected Norteño assailant. Lopez "was considered a shot caller or a gang leader for ESS." When his family held a wake, Norteño gang members caused a disturbance outside of the funeral home. The next day, police conducted a surveillance operation at the burial service.
Detective Gumm watched from a distance as defendant and others attended Lopez's burial. Many of the attendees were young men in their "later teens [and] early 20s" with shaved heads and blue clothing, matching the general appearance of a typical Sureño gang member. Defendant traveled to the service with a "documented Sureño gang member" named Antonio Flores. Following their arrival, "all the males wearing the blue clothing and the shaved heads ... walked over to where [defendant] and Mr. Flores were, and they all huddled around [them]." Detective Gumm interpreted this to mean defendant "had some status in the gang."
When defendant was arrested at the international border in 2012, he was wearing a blue belt with an S-shaped buckle. Detective Gumm opined this showed a continuing affiliation with the Sureño gang. Defendant's sister testified the "S" stood for Sonny and implied it was a family nickname.
Detective Gumm's testimony was supplemented by that of Detective Sean Martin. Detective Martin had personal contacts with defendant in 2008 while investigating "a number of gang-related shootings where [defendant] was the victim." He confirmed defendant lived with his parents "within the [geographic] parameters of the airport Norteños." In October 2008, a "documented airport Norteño" fired a bullet at defendant's car and caused damage to the vehicle. This incident, which defendant reported to law enforcement, "occurred down the street from his house." A few weeks later, a group of Norteños came to defendant's home and attacked him for cooperating with the police, calling him a snitch and threatening his life. Arrests were made but the charges were dismissed after defendant refused to appear in court.
The People introduced certified court records showing defendant had previously suffered a juvenile adjudication for committing assault with a firearm. This was done to show a pattern of criminal gang activity for purposes of the gang enhancement. (See Pen. Code, § 186.22, subds. (e), (f).) The People relied on the evidence of defendant's involvement in the current case to establish a second predicate offense. (See People v. Tran (2011) 51 Cal.4th 1040, 1046 ["a predicate offense may be established by evidence of the charged 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.)
During the trial below, defendant was accused of writing "ESS X3" in pencil on the wall of an "elevator foyer area" of the courthouse. A sheriff's deputy discovered those markings while defendant was being transported from the courtroom to a holding cell during a lunch break. According to the deputy's testimony, defendant was the only person who could have been responsible for the graffiti.
2. Inadmissible Gang Evidence
Detective Gumm opined defendant was an active gang member at the time of the charged offense. He based his opinion on ten enumerated incidents, although the tenth one was confusingly referred to as "Incident No. 11." The detective lacked personal knowledge of most of the alleged incidents, but he repeated as true hearsay regarding the underlying facts. Defendant does not challenge the testimony concerning Incidents Nos. 6, 7, and 9, which we have incorporated into the above summary of the properly admitted evidence.
Defendant alleges the testimony regarding Incidents Nos. 1, 5, and 8 violated hearsay rules under state law. The People do not respond to this argument, but we conclude the testimony was cumulative of other admissible evidence of defendant's association with gang members. Our prejudice analysis is based on testimony concerning Incidents Nos. 2, 3, 4, and 11, which, as the People acknowledge, violated defendant's right to confront adverse witnesses (U.S. Const., 6th Amend.).
Incident No. 1 was defendant's alleged presence in a car with two alleged Sureño gang members in July 2004, almost five years prior to the shooting in this case. Incident No. 5 was an alleged admission by defendant in March 2008 that he "hangs out with Southerners." Incident No. 8 was an alleged traffic stop on March 17, 2009, during which defendant was again observed in the company of alleged Sureño gang members. The car was stopped on its way to the burial service for Lucio Lopez, and defendant was reportedly wearing a blue shirt.
A. Incident No. 2
On June 4, 2006, Modesto police allegedly "responded to East La Loma Park for a call of several males setting the garbage cans on fire." The investigating officers made contact with six people, including defendant and Lucio Lopez. Detective Gumm testified every person in the group was a "documented Sureño gang member[.]"
B. Incident No. 3
On October 31, 2006, the Stanislaus County Sheriff's Department allegedly investigated reports of a fight in Salida. Detective Gumm testified as follows:
"When they arrived, they located [defendant] holding a baseball bat. They contacted the other group, which was a female and a male wearing a red shirt. [¶] Their version of the events that occurred was that [defendant and another alleged Sureño] were driving around in a green minivan. They were yelling out Sureño and X3 out the door at this other group. At one point, the van stopped. [Defendant] was identified as getting out and punching the female in the face several times. They then fled in the van. The female and the male walked back to her family's residence, told them
what happened, and several of those family members then went looking for [defendant and his accomplice].
"[The victims located defendant], again, in Salida. There was another disturbance in the street. [Defendant] was alleged to pull out a baseball bat out of the van, [and] tried to strike the male wearing the red shirt several times. That male said he was able to get the bat away from [defendant]. He then struck [defendant] with the baseball bat, I believe causing a broken arm, and then [defendant] says he was able to pull the bat back away from him, and that's when the police got there. But, the bat was found with [defendant]. [¶] [Defendant's] version of it was, he admitted to the first disturbance. He didn't admit to punching the female in the face, but said that this group approached him with the baseball bat, striking him, and he was able to pull it away, and then the police showed up."
C. Incident No. 4
As previously stated, the People relied on defendant's juvenile adjudication to establish one of two required predicate offenses for the gang enhancement. The admissible testimony referred to defendant's plea to the charge of assault with a firearm. The incident occurred when defendant was 16 years old. The inadmissible testimony of Detective Gumm alleged the surrounding circumstances.
On February 15, 2007, two males drove past defendant's home in a truck. At the time, defendant and several other people were trying to extinguish a fire in his driveway. The truck slowed down, and defendant said, "What's up homes?" The truck "started to slowly drive away when [defendant] pulled out a gun and fired several rounds at the vehicle." When police came to the house, they found an incendiary device in the driveway. Defendant's sister told them "that some Norteños had just thrown something in the driveway and started a fire."
"[W]hen the officers asked [defendant] about firing at the truck, he said he didn't want to answer that question. They did a search of the house and found two handguns. One of the handguns was found in [defendant's] closet, and he was arrested for attempted murder." Police also found drawings containing Norteño imagery and jargon, which Detective Gumm described in detail and translated for the jury. For example, he explained there was "a drawing that had 'SUR 187,' which is the Penal Code for murder, [and] 'Chapas,' which is a derogatory term that Sureños use towards Norteños." In addition, police reportedly found compact discs containing "Sureño gang rap ... talking about committing acts of violence against rivals." One of the discs was colored blue and another "had a 13 on it."
D. Incident No. 11
The last incident allegedly occurred on September 22, 2009, approximately five months after the shooting in this case. Detective Gumm testified this incident involved "an admitted Norteño gang member" who was out walking "in the Airport District of Modesto." Defendant "drove by him with several other males in a van." The pedestrian gestured to defendant with "a gang hand sign Norteños use," which "made [defendant] mad." Defendant "turned around and tried to run over [the pedestrian] with the vehicle." The victim "was able to jump out of the way," but a window on "[defendant's] van" was somehow broken. Defendant stopped driving and one of his passengers "got out of the vehicle with a baseball bat and approached [the victim]." The victim ran into a store, and defendant's group drove off. Later, police contacted defendant and apparently searched his phone, finding messages with derogatory references to Norteños and a statement about "his need to get some guns."
3. Prejudice
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard described in Chapman v. California (1967) 386 U.S. 18. (See People v. Garton (2018) 4 Cal.5th 485, 507; People v. Perez (2018) 4 Cal.5th 421, 456; 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. (Chapman, supra, at p. 24.) "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" (People v. Neal (2003) 31 Cal.4th 63, 86.)
Gang evidence can have "a highly inflammatory impact on the jury" and "creates a risk the jury will ... infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams (1997) 16 Cal.4th 153, 193.) Where, as here, evidence of prior gang activity is important to the issues of motive and intent, it can be introduced despite its prejudicial nature. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167; People v. Martinez (2003) 113 Cal.App.4th 400, 413.) However, compliance with the rules of evidence is a prerequisite for admission. (See Sanchez, supra, 63 Cal.4th at p. 684 ["Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception ... [or] through an appropriate witness"].) "Erroneous admission of gang-related evidence, particularly regarding criminal activities, has frequently been found to be reversible error, because of its inflammatory nature and tendency to imply criminal disposition, or actual culpability." (People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.)
Defendant argues the erroneously admitted testimony was prejudicial because it demonstrated his criminal propensity and other negative character traits. Whereas the properly admitted evidence tended to portray him as a frequent victim of gang violence, albeit one with a juvenile record for assault with a firearm, the testimonial hearsay alleged he had "engaged in high levels of violence" (defendant's words) on multiple occasions over a period of years. Defendant further notes "this was a relatively close case" and contends the prosecutor's discussion of the hearsay during closing argument exacerbated its prejudicial effect.
The People deny there was prejudice since the jury was given a limiting instruction restricting its consideration and use of the gang evidence. This is the instruction it received:
"You may consider evidence of gang activity only for the limited purpose of deciding whether:
"The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime, enhancement, and special circumstances allegation charged;
"OR
"The defendant had a motive to commit the crime charged.
"You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
"You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
"[W]hile we do presume the jury has endeavored to follow the court's instructions [citation], we cannot always assume that those instructions are sufficient to dispel the taint of prejudicial information. A limiting instruction warning jurors they should not think about the elephant in the room is not the same thing as having no elephant in the room." (People v. Fritz (2007) 153 Cal.App.4th 949, 962.) Assuming the jury succeeded in compartmentalizing the hearsay and refrained from concluding defendant was predisposed to criminal behavior, it would have been difficult to ignore the inference of modus operandi.
"Modus operandi is generally a means of proving the identity of the perpetrator of the crime charged, by demonstrating that the defendant had committed in the past other crimes sharing with the present offense features sufficiently unique to make it likely that the same person committed the several crimes." (People v. Sam (1969) 71 Cal.2d 194, 204.) --------
The main issue at trial was whether the green minivan used in the shooting was defendant's mother's vehicle. Defendant had a black Mazda, which he drove on the night of the incident. His alibi was not especially strong but it was unrefuted, and there was no evidence he had access to his mother's van during the relevant time period. Nor was there any properly admitted evidence suggesting he had driven the van on other occasions. The gang expert had seen defendant in his mother's vehicle as a passenger, which was unremarkable considering he was a teenager who lived with his parents. The testimonial hearsay showed defendant not only had a history of driving the van, but he had operated it while committing gang-related acts of violence. Moreover, he apparently kept a baseball bat inside the vehicle for use during his encounters with Norteño gang members.
If we further assume the limiting instruction was completely effective, we must consider the fact it permitted jurors to rely on the hearsay to determine whether "the defendant had a motive to commit the crime charged." In a separate instruction, the jury was told "[h]aving a motive may be a factor tending to show that the defendant is guilty." Since motive is "'"ordinarily the incentive for criminal behavior,"'" the probative value of such evidence is generally regarded as high. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1168.) The motive suggested by the testimonial hearsay was defendant's extreme animosity toward Norteño gang members. His hatred was evidently so strong that he would punch a woman in the face merely because of a perceived Norteño affiliation and use an automobile as a deadly weapon for no reason other than the victim's display of a Norteño hand gesture.
The People argue the hearsay was cumulative of other properly admitted evidence of motive and thus insignificant. At trial, however, the prosecutor argued the evidence was essential to the People's case. Defense counsel, citing Evidence Code section 352, requested any testimony regarding Incidents Nos. 3 and 11 be "sanitized" and argued, "Those two incidents specifically involving a van being involved are highly prejudicial ...." The prosecutor opposed the request, claiming any restrictions on the evidence would present the events "out of context." In making this argument, the prosecutor said, "Yes, it's prejudicial, but the probative value is so high ...."
In closing argument, the prosecutor stressed the importance of "understanding how a gang member thinks." In one such instance, before discussing Incidents Nos. 3 and 4, the prosecutor said, "I'm going to assist you in understanding how a gang member thinks ...." The argument continued:
"... Incident No. 3: This was the green minivan on October 31st, 2006. There is a group of pedestrians wearing red. Now what does the Sureño gang member do when he sees somebody in the field wearing red colors? This is gang warfare. Assault on sight, verbal, physical. You don't let a chance meeting of a rival go by. So ... the occupants of the green minivan yell, 'Sureño and X3.' X3, of course, 13, the primary number associated with the Sureño gang for M, La Eme, Mexican Mafia and Sureño[,] the gang itself. [¶] [Defendant] gets out of the van and starts fighting with the guys in red. This is 2006. Close to three years before the murder. Start understanding the mentality of a gang member for you to understand the specific intent in [defendant]'s head, which goes to the charges and the enhancements in the case.
"Now, February 15th of 2007, Incident No. 4. ... On this day, the defendant's house is fire bombed. Remember that? [Defendant] goes outside to put the fire out. [Defendant] sees what he perceives as Norteños who did the fire bombing. [Defendant] responds like a gang member should. He pulls out the gun and he starts shooting. Now these weren't rival gang members[,] [they] happen to be people who were driving by.... [¶] ... [¶]... Remember the police went inside [defendant]'s house investigating the crime. They recover two firearms. And then in his bedroom 'E' for East; 'SUR,' S-U-R for Sureño; '13.' E SUR 13. East Side Sureño.... [¶] ... [¶]... What's going on in his head? Remember, you're determining specific intent on April 13, 2009, and you're hearing about and seeing—well you're hearing about evidence that is occurring two years before the murder. [¶] And then, quote 'SUR 187 on Chapas.' Sureño murder on Norteños. What's going on in somebody's head when they are graffiti-ing in their own house in their room, Sureño murder on Norteños?"
The test for prejudice is not whether the reviewing court would have found defendant guilty regardless of the Sixth Amendment violation, nor is it "what effect the constitutional error might generally be expected to have upon a reasonable jury." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) We must focus instead on how the error relates "'to everything else the jury considered on the issue in question, as revealed in the record' ... and whether the error might have tainted its decision." (People v. Neal, supra, 31 Cal.4th at p. 86, italics added.) "That is to say, the issue is 'whether the ... verdict actually rendered in this trial was surely unattributable to the error.'" (Ibid., quoting Sullivan, supra, at p. 279.)
As noted, the jury deliberated for approximately 11 hours over the course of three days, and possibly longer. On the first day, it asked to review the testimony of three individuals who witnessed the shooting and claimed to have seen a green minivan. On the second day of deliberations, the jury asked to watch the recorded police interviews of defendant and witness Ruben L.
"Juror questions and requests to have testimony reread are indications the deliberations were close." (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.) Lengthy deliberations typically compel the same conclusion. (See People v. Cardenas (1982) 31 Cal.3d 897, 907 [12 hours of deliberations in an attempted murder trial described as "a graphic demonstration of the closeness of this case"]; accord, In re Martin (1987) 44 Cal.3d 1, 51 [citing additional examples].) The Cardenas opinion notes the California Supreme Court "has held that jury deliberations of almost six hours are an indication that the issue of guilt is not 'open and shut' and strongly suggest that errors in the admission of evidence are prejudicial." (Cardenas, supra, at p. 907.)
In the eyes of the jury, this was a close case. The People's case was anchored upon on the testimony of two witnesses who said a photograph of a green minivan depicted the same vehicle they had seen in fleeting moments on a night three years earlier. The photo itself, which was taken several months after the shooting, showed what defendant's mother's vehicle looked like in daylight. Despite the strength of additional circumstantial evidence, at least some of the jurors were hesitant to convict defendant on the lone count of first degree murder.
The erroneously admitted hearsay was inflammatory and highly probative of defendant's guilt. If the vote of even one juror was affected by that evidence, then the error was prejudicial. (Cf. People v. Soojian (2010) 190 Cal.App.4th 491, 520 [explaining, in the context of error under state law, that a hung jury is a better result than a guilty verdict].) The circumstances of this case do not permit us to conclude the jury's verdict "'was surely unattributable to the error.'" (People v. Neal, supra, 31 Cal.4th at p. 86.) Therefore, pursuant to the foregoing analysis, the People have not shown the error was harmless beyond a reasonable doubt.
"[W]here 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; accord, People v. Story (2009) 45 Cal.4th 1282, 1296-1297.) Defendant does not challenge the sufficiency of the evidence, nor would such a challenge have merit, so he is subject to retrial. In light of the disposition, all remaining claims in this appeal are moot.
DISPOSITION
The judgment is reversed.
PEÑA, J. WE CONCUR: LEVY, Acting P.J. MEEHAN, J.