Opinion
E065207
01-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO AVILA RAMOS, Defendant and Appellant.
Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1200877) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther (retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and John G. Evans, Judges. Affirmed. Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
This case involving defendant and appellant Antonio Avila Ramos comes to this court for a second time after he was found guilty of attempted robbery, false imprisonment, assault with a firearm and being an active member of the Varrio Coachella Rifa (VCR) gang at a second trial. Defendant was on parole in March 2012 and was wearing a court-ordered ankle bracelet that was tracked by the use of GPS technology. On the night of March 7, 2012, just before 11:30 p.m., defendant was driving a Dodge Charger and forced another car with two occupants to the side of the road. The passenger in the Charger, Luis Chapa, a fellow VCR gang member, yelled "Coachella" and formed a "C" with his hand. Once the other car came to a stop, Chapa exited the Charger carrying a shotgun. He demanded money from one of the occupants of the other car.
Defendant defended the charge in his first trial by presenting an opening statement and cross-examining witnesses on his theory that, although the GPS on his ankle monitor showed he was in the area at the time of the crime, at the exact time of the crime, he was one mile away from the scene. Defendant relied on discovery that his ankle monitor showed he was down the street in a grocery store at the time that the 911 call was received at 11:23 p.m. However, near the end of the first trial, the prosecution found newly discovered evidence that the 911 call was received between 11:17 p.m. and 11:20 p.m., showing that the crime had actually occurred while defendant was near the scene.
Defendant's counsel moved to have the evidence excluded. The trial court refused to exclude the evidence as it would be a "lie" to have the jury believe that the 911 call was made at 11:23 p.m., and granted a mistrial. The trial court denied defendant's motion to bar a second trial. Defendant filed a petition for writ of mandate and/or prohibition in this court (case No. E059541) (writ) arguing that double jeopardy principles barred a retrial. This court summarily denied the writ and a second trial was conducted.
Defendant now contends on appeal as follows: (1) his retrial violated double jeopardy principles of the state and federal Constitutions because the mistrial was declared without his consent and there was no legal or manifest necessity for granting a mistrial; and (2) the instructions on expert testimony and gang expert opinion were conflicting and confusing warranting reversal.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an information filed on July 16, 2012, with attempted robbery (Pen. Code, §§ 664, 211; count 1). It was further alleged as to count 1 that defendant personally used a firearm (§ 12022.53, subd. (b)); a principal was armed with a firearm during the commission of the crime and used the firearm for the benefit of a gang (§ 12022.53, subd. (e)); and that he committed the violent offense for the benefit of and at the direction of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He was additionally charged with false imprisonment (§ 236; count 2) with the special allegation he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)); assault with a firearm (§ 245, subd. (a)(2); count 3) with the special allegation he committed the serious offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)); and active participation in the VCR gang (§ 186.22, subd. (a); count 4). It was additionally alleged as to all counts that he had suffered a serious and violent prior offense (§§ 667, subd. (a), (c)-(e)(1), 1170.12, subdivision (e)(1)) and had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On June 14, 2013, in the middle of the first trial, the trial court declared a mistrial. Defendant filed his writ on September 5, 2013, and it was summarily denied on November 6, 2013. In the second trial, defendant was found guilty of all counts and the enhancements for those counts were found true by the jury. The trial court found the prior convictions true in a bifurcated proceeding. Defendant was sentenced to 19 years to be served in state prison.
The jury was only instructed as to count 1 that a principal used a firearm and the jury only submitted verdicts on the principal armed enhancement under section 12022.53. subdivision (e).
B. FACTUAL HISTORY
1. THE ATTEMPTED ROBBERY
In March 2012, Anna Diaz was a student at California State University San Bernardino. On March 7, she had been at school late and drove home with her boyfriend, Cesar Romero. They both lived on Avenida Manzana in Desert Hot Springs. As they were nearing home, driving on Avenida Manzana, Cesar saw his father, Juan, walking in the street. Cesar stopped for a moment to talk to Juan. Cesar continued driving and Juan continued walking; Juan observed a dark blue Charger traveling behind Cesar.
The Charger moved into Cesar's lane and forced him and Diaz to the side of the road. Cesar could see that the passenger, Luis Chapa, had a rifle. Chapa yelled "Coachella" and made a "C" with his hand. Chapa exited the passenger's side of the Charger carrying the rifle. He yelled at Cesar to exit the vehicle. Cesar complied and held his hands up. Chapa told Cesar "Give me your money," and "I'm the devil." Cesar pulled out his wallet but only had one dollar. Chapa laughed and said, "Just get the fuck out of my face." Cesar and Diaz quickly drove off. The Charger appeared to be following them. That lasted a few seconds. Diaz never saw the driver. A few seconds later, Diaz called 911.
Diaz and Cesar identified an overview map of where the crime occurred on Avenida Manzana.
Romero was recalled by defendant and stated the Charger that stopped him had been traveling toward him and made a "wild" U-turn to pull behind him.
Jessica Rodriguez was dating Chapa in March 2012 and knew defendant through Chapa. She had spent time at defendant's house and knew defendant's wife.
On March 7, she was a passenger in the Charger, which belonged to Chapa. On that night, Chapa had been drinking so his friend "Tony," who she insisted was not defendant, was driving the Charger. At some point that night, Tony stopped the Charger next to another vehicle. Chapa exited the Charger for approximately 10 seconds and then got back in. He had a dark object in his hand but Rodriguez did not see what it was. She did not observe what occurred outside the car. They drove off and dropped Tony at his house.
Rodriguez commenced driving the Charger and the police pulled them over. Rodriguez never saw Chapa holding a shotgun but the police found one in the back seat when they were pulled over that night.
Riverside County Sheriff's Deputy Victor Ramirez said he received a call at approximately 11:23 p.m. regarding a "brandishing of a weapon" incident. When he arrived at the scene, he spoke with Juan. Juan gave a description of the Charger. The Charger was located; Rodriguez and Chapa were inside. Rodriguez told Ramirez that Tony was driving the Charger earlier in the night. She told him that they had pulled up to another car. Chapa got out of the car with a dark object in his hand. He pointed the object at the other driver. He then got back in the vehicle and they drove off. They dropped Tony off. The loaded shotgun was in the back seat in plain view.
Three cellular telephones were found in the car. Rodriguez gave Deputy Ramirez a phone number for the person she identified as Tony. The phone number belonged to defendant.
Riverside County Sheriff's Deputy Tristan Baraness was assigned to the Coachella Valley Violent Crimes Gang Task Force. He attempted to show Rodriguez a six-pack photographic lineup to identify defendant but she refused to look at it. She explained that Chapa was a gang member and she did not want to be labeled as a snitch. She was afraid.
2. GPS AND 911 EVIDENCE
In March 2012, California Department of Corrections Parole Agent Manuel Ortiz supervised parolees in the Coachella Valley. His parolees, who were all documented gang members, were fitted with GPS ankle monitors. The monitors tracked every movement of the parolee. The ankle monitors were monitored by a service called "Satellite Tracking of People" (STOP). The movements of the parolee were archived by STOP.
In January 2012, Agent Ortiz was assigned to supervise defendant when he was released on parole. Defendant was fitted with an operational ankle monitor. At the time he was released on parole, defendant did not ask to formally appeal his gang conditions although such a process was available.
Agent Ortiz was asked to check the GPS records for defendant's whereabouts on March 7. Defendant was in the area of the crime at Avenida Manzana and Camino Campesino between 11:17 and 11:19 p.m. on March 17. The GPS device "gives a pinpoint" every minute of the GPS's location so it was possible to tell the direction of travel and whether a person was walking or driving. Defendant was driving slowly in the area. After 11:19 p.m. he headed north and stopped at a Vons grocery store in Desert Hot Springs from 11:22 to 11:26 p.m.
Ashley Fuller was employed by STOP. The ankle monitors used satellites and cellular telephone tower networks to track the location of parolees. She received a request to analyze the data received from defendant's ankle monitor. The ankle monitor was recorded as being in the area of Avenida Manzana and Camino Campesino on March 7, 2012, at 11:17 p.m. and 11:18 p.m. The track points were close together. It was accurate within 50 feet. Speed was calculated by the distance between the two points that were reported. The monitor moved after 11:20 p.m. at a higher rate of speed.
"Magic" is a Verizon system, which logs every 911 call that comes into the Riverside County Sheriff's Department. Magic showed that Diaz called at 11:19 p.m.
3. GANG EVIDENCE
Deputy Baraness had previously testified approximately seven or eight times as a gang expert. Baraness found a blue bandana in Chapa's residence. Chapa had a tattoo on the back of his head that said "Cochela" and "52." Defendant did not discuss his gang affiliations with Agent Ortiz.
Defendant had the initials "VCR" on his stomach and Coachella on his hand. He had "5" and "3" tattoos. He had a symbolic Aztec "13" on his wedding ring finger, which was associated with the Mexican Mafia prison gang. Defendant had been classified as a prison gang associate before he was released on parole.
Deputy Baraness had personally interviewed gang members who lived in the Coachella Valley and also had interviewed a member of the Mexican Mafia gang. In his numerous discussions with gang members, the most important concepts to them were loyalty, and instilling fear and intimidation in the public.
Deputy Baraness explained that gang members gain a reputation by doing "work" committing crimes. Gang members committed crimes together so that the member who actually committed the crime could be observed and the other gang members would witness and report that the member had done work for the gang. It benefitted the gang to commit crimes that instilled fear in the community. Gangs would commit crimes outside of their territory to show that the gang could go wherever it wanted to commit crimes. The member committing the crime would "yell" his gang name in order to take credit for his gang.
If a victim reported the crime to the police, the gang would mark that person as a snitch and harm the person. Gang members showed pride by wearing the gang's colors, clothing and tattoos.
The VCR gang had been created in the 1960s; its membership was increasing. He had personally spoke with many members. The primary crimes committed by VCR members were grand theft automobile, carjacking, burglary and robberies. Their symbols included the numbers 52 and 53, and the letters VCR. They also associated with the colors blue and black. Members got tattoos with the letters VCR and the numbers 52 and 53. The word "Cochela" was used as a tattoo; it was a historically significant spelling. VCR gang members formed a hand into a "C" as a symbol of the gang.
A known member of the VCR gang had previously committed a carjacking. The official certified court documents were admitted reflecting the crime. Another member had committed robbery with a knife at a store. The certified documents were admitted showing the robbery conviction. In a third case, three VCR gang members were involved in a police pursuit and yelled "Coachella" at the officers while shooting at them. One of the participants was convicted of assault with a deadly weapon and being an active participant in a gang. The record of conviction was admitted.
Deputy Baraness reviewed Chapa's parole report, which detailed his tattoos. Chapa had the "Cochela" tattoo on the back of his head. He had the word "three" tattooed on his leg. Chapa admitted he was a VCR gang member to a Palm Springs Police detective during a prior crime investigation.
A photograph of defendant, Rodriguez, and Chapa was found on Chapa's phone. Chapa was forming the letter "C" with his hand in the photograph. In Deputy Baraness's experience, this was a VCR gang sign. Defendant was "throwing up the number three" in the photograph and Chapa was "holding up 5." This was a clear display of gang signs affiliated with the VCR gang.
Deputy Baraness had personally been present when defendant was asked in another investigation on April 10, 2012, if he was still a gang member. Defendant responded "Yeah." He also said the word "Eme" which was a common name for the Mexican Mafia. The fact that Chapa said "Coachella" and made a "C" during the crime here, was indicative of him being an active VCR member.
Deputy Baraness had noted that in a photograph on Chapa's phone, defendant had a VCR tattoo on his stomach and was displaying the hand sign "C." He had the symbolic "Cochela" on his hand and the Aztec symbol for 13 on his ring finger, which was a Mexican Mafia identifier. There was a photograph on Chapa's phone showing defendant with his wife, Stephanie; Defendant was forming the hand sign "C"; Stephanie was "holding up three." There was another photograph of both defendant and Chapa forming the hand sign "C."
Based on his review of the police report; the review of witness testimony in court; the review of the background, including tattoos; defendant's admission; and the hand signals thrown during the crime, Deputy Baraness believed the attempted robbery was committed for the benefit of the VCR gang. It was committed to enhance the reputation of the gang as it was committed in a rival gang's territory and two gang members were together.
Deputy Baraness was of the opinion defendant was an active member of VCR at the time of the attempted robbery based on his tattoos and being tracked going to the Coachella area, even though he was required to avoid his gang area and gang members as a condition of his probation. Further, Chapa and defendant being together throwing gang signs showed they were together acting for the VCR gang.
Ryan Monis was an investigator employed by the Riverside County District Attorney's office. He worked in the gang enforcement unit. Investigator Monis had spent hours speaking with Coachella Valley gang members. He had testified as an expert on gangs "hundreds" of times. The Mexican Mafia was started in prison to protect Hispanic gang members from Black and White gang members. The Mexican Mafia evolved into running the street gangs for the Mexican Mafia's benefit. An associate of the Mexican Mafia could have an "Eme" tattoo or a form of the number 13.
Defendant had tattoos that were commonly associated with the Mexican Mafia and he had the VCR tattoos. Investigator Monis spoke with defendant while defendant was in custody in the Indio jail on May 1, 2012. Defendant did not deny that he was a member of the Mexican Mafia. He told Monis he was an "Eme" associate. Monis surmised that defendant was an active member of the Mexican Mafia. In his experience, a member of the Mexican Mafia would not disassociate from his street level gang.
DISCUSSION
A. DOUBLE JEOPARDY
Defendant contends the trial court erred by granting a mistrial against his wishes and denying his subsequent motion challenging the mistrial. Further, this court erred by summarily denying his writ. He insists that his retrial violated the double jeopardy provisions of the federal and California Constitutions.
1. ADDITIONAL FACTUAL BACKGROUND
During the opening statement by defendant's counsel before the first trial, he argued that the GPS evidence would show that defendant was one mile from the crime scene when it occurred. Defendant claimed he and his wife were in the area but were in their own car looking for a friend's dog. Moreover, defendant's counsel argued that the evidence from the GPS ankle monitor did not match witness testimony. He insisted that at the minute the robbery was occurring, defendant was inside the Vons grocery store.
During cross-examination of the People's witnesses, defendant's counsel focused on the timing of the robbery. Diaz was asked if she recalled calling 911 at 11:23 p.m.; she could not recall the exact time. Diaz had testified she called 911 immediately after pulling away from the attempted robbery. Romero believed that the Charger made a U-turn to pull behind them and there were two males in the car. Defense counsel inquired of Romero the exact timing of the 911 call; he estimated the time. Deputy Ramirez initially testified he received the call about the incident at approximately "11:20 pm." and he arrived at 11:35 p.m. Defendant's counsel then clarified with Deputy Ramirez that the call was received at 11:23 p.m. according to his police report.
Agent Ortiz and the GPS expert, Ashley Morgan, testified the GPS ankle monitor placed defendant inside the Vons Market at 11:23 p.m. Ortiz and Morgan tracked defendant's location on his GPS monitor, which showed that between 11:17 p.m. and 11:20 p.m. he was in the area where the crime occurred.
In the middle of Morgan's testimony, defendant's counsel asked Morgan to generate additional Google Earth photo maps to detail the area around the crime scene. Court was adjourned for the day in order for Morgan to obtain these maps. She was ordered to turn them over to the prosecutor as soon as possible.
The following morning, on June 14, 2013, defendant's counsel brought to the court's attention that it had just received in the prior two minutes a new report from the prosecutor regarding the precise time of the 911 call by Diaz. Defendant's counsel noted that it had relied upon the dispatch log originally provided to him, which now was being represented as incorrect.
The prosecutor explained it had continued to investigate the timing of the 911 call during trial. The prosecutor explained he was advised by the Riverside County Sheriff's Department there was another system used by the Department, the Magic system, which tracked 911 calls. It showed the 911 call by Diaz was received at 11:19 p.m. The new information was discovered June 13th at around 10:30 p.m.; he turned it over to defense counsel immediately the next morning.
The trial court noted the discovery was late and was looking at possible remedies for the defense. It stated, "I'm trying to see how some of the bells that have been rung already by you, in your opening statements, by counsel in his assertions of defense, in his opening statements, cannot be un-rung." The trial court found that the evidence was "an atom bomb." The prosecutor represented that he had not been aware of the Magic system prior to this case.
The prosecutor objected to the evidence being excluded because advising the jury that the crime occurred at 11:23 p.m. was a lie. The prosecutor offered that a late discovery instruction could be given to the jury. The prosecutor also recognized a mistrial was an option but it was not preferred. Finally, a continuance was another remedy but would impact the jury. The trial court stated that a continuance would normally be its first choice of remedy but a continuance would not change the opening statements and theory of the defense. Further, it was concerned that a mistrial would present issues regarding double jeopardy.
The prosecutor rejected that a mistrial would bar a subsequent trial. The trial court found that there was no bad faith in providing the late discovery.
Defendant's counsel stated "this case cannot go forward with this evidence." The evidence should be excluded. The trial court asked defendant's counsel the possible remedies and he responded, "Exclusion." Defendant's counsel did not agree that the 11:23 p.m. time for the crime was a "lie." The report "magically" appearing was not necessarily the "truth." The prosecutor believed the new evidence was accurate.
The trial court continued to be concerned about double jeopardy barring a second trial but noted, "I think there's an obligation on the part of the People, having been met by disclosing this to the Court, that this case should not go forward, not with this jury." The trial court took a break to consider the proper remedy.
The trial court returned and initially stated that it "respected" defense counsel's request for a mistrial, and was planning to grant the mistrial. Defense counsel responded that he was "absolutely not" asking for a mistrial. Defense counsel stated, "I believe that it would be a miscarriage of justice to go forward, but I believe that a mistrial would put [defendant] in serious jeopardy. And he does not want a mistrial. He's already stood his trial, your Honor."
The trial court ruled, "My obligation is to make sure that justice is done to citizens and the people of this state and nation. And I see no other alternative available to the Court than to grant the mistrial even though it's not requested. And I specifically find that it's not been requested by the Defense, but I find justice has a manifest necessity that this mistrial be declared." Defendant's counsel again argued that the report offered did not necessarily represent the truth and that the case could go forward without the evidence. The trial court rejected that the evidence was not the truth and declared a mistrial.
Defendant brought a memorandum in support of a finding that the mistrial and discharge was without his consent and without legal necessity. In the motion, defendant acknowledged that the defense strategy was that the crime occurred at 11:23 p.m., and at that time he was at the Vons, not the scene of the crime. He had cross-examined witnesses trying to buttress this claim. Defendant argued that there was no legal necessity requiring a mistrial. Defendant contended that double jeopardy barred a second trial. Defendant did not consent to the mistrial.
The People filed opposition to defendant's motion to bar prosecution based on double jeopardy principles. The People argued that the second trial was not barred by double jeopardy principles because the mistrial was declared solely for defendant's benefit and was based on legal necessity.
Defendant objected, arguing that he did not consent to the mistrial. If the mistrial had not been granted, defendant could have argued to the jury in the first trial that the newly discovered evidence was not dispositive.
The motion was heard on August 5, 2013, before the same trial judge who granted the mistrial. Defendant entered a "plea of once in jeopardy and of not guilty." The trial court had considered the briefs filed by the parties. Defendant's counsel reiterated that defendant objected to the mistrial. The mistrial was granted despite his objection and there was no legal necessity. Arguments made during opening statement and cross-examination did not constitute legal necessity. A defense was possible. The prosecutor argued that although defendant's counsel objected to the mistrial, he did not agree to proceed with the evidence admitted. Counsel's failure to ask for a mistrial when the only defense was eviscerated was ineffective assistance of counsel. Defendant's counsel argued there were defenses, such that no witness stated defendant was in the car and the ankle bracelet would still show he was not at the crime scene at the exact time of the robbery.
The trial court noted, "The evidence that was newly discovered as to this state of facts and the defense and prosecution of this case was literally not just a bombshell, it was an atom bomb in the court. It completely eviscerated [defense counsel]'s defense and assertions to the jury in the Court's opinion." The trial court stated that it had researched the options available and decided that "there was no way to unring this bell." Moreover, excluding the evidence would be intellectually dishonest. The trial court concluded there was a legal necessity to declare a mistrial because "this new evidence was of such a huge affect and impact on the trial that the Court was left with no other choice." The motion for double jeopardy to attach was denied.
On September 5, 2013, defendant filed his writ in this court seeking an order barring his second trial. The writ was summarily denied on November 6, 2013.
2. ANALYSIS
"The Fifth Amendment to the United States Constitution provides that '[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .' This guarantee is applicable to the states through the Fourteenth Amendment. [Citations.] Similarly, article I, section 15, of the California Constitution provides: 'Persons may not twice be put in jeopardy for the same offense.' " (People v. Saunders (1993) 5 Cal.4th 580, 592-593.)
" 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' " (Larios v. Superior Court (1979) 24 Cal.3d 324, 329.)
" ' "The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . ." ' [Citation.] Courts 'have disparaged "rigid, mechanical" rules in the interpretation of the Double Jeopardy Clause. [Citation.]' [Citation.] 'The exaltation of form over substance is to be avoided.' [Citation.] The standards for determining when a double jeopardy violation has occurred are not to be applied mechanically." (People v. Saunders, supra, 5 Cal.4th at p. 593)
Federal law provides that "[t]he prosecutor must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant. [¶] The words 'manifest necessity' appropriately characterize the magnitude of the prosecutor's burden." (Arizona v. Washington (1978) 434 U.S. 497, 506, fn. omitted; see U.S. v. DiFrancesco (1980) 449 U.S. 117, 130; Illinois v. Somerville (1973) 410 U.S. 458, 463-464.) The reviewing court must ensure that the trial judge exercised " 'sound discretion' in declaring a mistrial." (Arizona, at p. 514.)
California has adopted the rule that "Once jeopardy has attached, discharge of the jury without a verdict is tantamount to an acquittal and prevents a retrial, unless the defendant consented to the discharge or legal necessity required it." (Stone v. Superior Court (1982) 31 Cal.3d 503, 516, italics added.)
"In California, legal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity." (Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714, italics added.) However, these above reasons are not the only reasons a mistrial can be granted for a legal necessity. (See In re Carlos V. (1997) 57 Cal.App.4th 522, 527 [disagreeing that legal necessity is narrowly defined to include only those reasons stated in Curry].) At least three courts have held that ineffective assistance of counsel may, in "extreme circumstances" constitute legal necessity for a mistrial including in People v. Coleman (1992) 9 Cal.App.4th 493 (Coleman). (Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1525-1526.)
In Coleman, the defendant moved for substitution of counsel after opening statements pursuant to People v. Marsden (1970) 2 Cal.3d 118. The defendant claimed that his counsel had misstated the evidence in her opening statement that he had pointed the gun at the victim; the defendant advised the trial court he did not point the gun at the victim and it accidently discharged. The defendant insisted that if he testified at trial, the jury would view him as a liar based on the opening statement. (Coleman, supra, 9 Cal.App.4th at pp. 494-495.) Defense counsel opposed the substitution of counsel and argued that a motion for mistrial should be granted. Rather than declare a mistrial, the court appointed substitute counsel and the trial continued. The trial court admonished the jury to disregard the opening statement. The defendant was found guilty. (Id. at pp. 495-496.)
On appeal, the defendant argued that the trial court erred by denying his motion for mistrial arguing that "legal necessity required a mistrial when the defense counsel misstated the evidence in her opening statement." (Coleman, supra, 9 Cal.App.4th at p. 496.) The court first recognized that "absence of counsel" qualified as legal necessity for granting a mistrial. (Ibid.) The court further stated, "In [People v. McNally (1980) 107 Cal.App.3d 387], the court held that legal necessity required a mistrial when the defendant's attorney learned on the third day of trial that a conflict of interest existed such that he could no longer represent the defendant. [Citation.] The court concluded that since the conflict could prejudicially [e]ffect the defendant's right to effective counsel, the defendant's consent to the mistrial was unnecessary. [Citation.] Because legal necessity required the mistrial, a retrial was not barred. [Citation.] [¶] Here, defense counsel's misstatement of the evidence in her opening statement undermined [the defendant]'s credibility and created a conflict of interest. This event caused a breakdown in the relationship between [the defendant] and his counsel and frustrated the realization of a fair trial. [Citation.] As in McNally, supra, the conflict between [the defendant] and his counsel amounted to legal necessity for a mistrial; [the defendant]'s consent was unnecessary." (Id. at pp. 496-497.)
The Coleman court concluded, "While the trial court recognized the conflict of interest and hence substituted counsel, that remedy was inappropriate given the facts here. The prejudice to [the defendant] of his prior counsel's opening statement was incalculable. The admonition to the jury to disregard the opening statement of [the defendant]'s prior defense counsel could not have cured the harm. As substituted counsel argued below, the jury was understandably left with the impression that [the defendant] had changed stories between defense counsel." (Coleman, supra, 9 Cal.App.4th at p. 497.)
The mistrial motion here was properly granted whether considering "manifest necessity" or "legal necessity." Here, in defense counsel's opening statement, he argued the GPS data and 911 call would show defendant was not at the scene at the time the robbery occurred. Defendant's counsel relied upon the discovery that the 911 call was received at 11:23 p.m., the exact time defendant's ankle monitor placed him inside the Vons grocery store. However, four days into trial, dispatch records related to the 911 call were produced showing defendant could have been at the scene of the robbery because it showed the 911 call was received at 11:19 p.m., the time that defendant was in fact near the scene of the robbery. Defendant's counsel had already made the opening statement and had cross-examined witnesses based on the theory that records would show defendant was not at the scene. Defendant's counsel had essentially admitted that defendant was at the scene of the crime at the exact time that the crime occurred.
There simply was no other remedy that the trial court could invoke to dispel the prejudice to defendant. Defendant's counsel declared it would be a "miscarriage of justice" to admit the evidence. It is entirely unclear what defendant's counsel could have done if the first trial went forward. By advising the trial court that the admission of the evidence was a miscarriage of justice, and failing to provide any other remedy to the court, the trial court properly concluded that to go forward with the evidence would "prejudicially affect the defendant's right to effective counsel." (Coleman, supra, 9 Cal.App.4th at pp. 496-497.) Based on the evidence and statements before the jury, the trial court properly determined this was an "extreme circumstance" requiring a mistrial.
Defendant contends the trial court was concerned that the People would not be afforded a fair trial. The trial court was concerned that excluding the evidence would result in a "lie" to the jury as to the time of the 911 call. In turn, it was concerned that defendant had relied on the initial time and that it was an "atom bomb" to the defense. The mistrial was clearly made in favor of defendant.
Here, defendant's counsel stated that admission of the evidence would constitute a miscarriage of justice. Despite this statement, he did not move for mistrial. The trial court determined that no other course of action short of a mistrial would remedy the admission of what it termed the "atom bomb" of new evidence. We cannot find the grant of mistrial was an abuse of the trial court's discretion or an error of law.
In again rejecting defendant's claim on appeal, we need not address if this court erred by summarily denying the writ.
B. INSTRUCTIONAL ERROR
Defendant insists that the instructions on expert testimony and gang expert opinion were conflicting and confusing; specifically, instruction with CALCRIM Nos. 332 and 360. CALCRIM No. 332 first told the jurors that they must decide if the information relied upon by the gang experts, including statements, was true and accurate; but then they were told not to consider statements relied upon by the gang experts as proof such statements were true. CALCRIM No. 360 undermined the effectiveness of instructing the jury it must determine if the information relied upon by the experts was true and accurate. Such instructional error requires reversal.
1. ADDITIONAL FACTUAL BACKGROUND
There was no discussion of the instructions on the record; defendant never objected to the instructions.
The jurors were instructed on limited purpose of evidence. They were advised, "During the trial, certain evidence was admitted for a limited purpose. You must consider that evidence only for that purpose and for no other." The jurors were further instructed with CALCRIM No. 332 on expert witness testimony, which informed the jury, "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.
"You must decide whether information on which the expert relied was true and accurate.
"You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
"An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and give an opinion based on the assumed facts.
"It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
The jury was also instructed with CALCRIM No. 360: "Deputy Baraness and Investigator Monis testified that in reaching their conclusion as an expert witness, they considered statements made by many others. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."
The jurors were also instructed on the crime of participating in a criminal street gang as charged in count 4. They were instructed the People had to prove that defendant actively participated in a criminal street gang; when defendant participated in the gang, he knew that members of the gang engaged in or have engaged in a pattern of criminal gang activity; and that defendant willfully assisted, further or promoted felonious criminal conduct by members of the gang by either directly or actively committing a felony offense or aiding and abetting a felony offense. The jurors were advised two or more members of the gang must be involved in the crime. They were also instructed on the gang enhancements for counts 1, 2 and 3, that they must find defendant had committed the crimes for the benefit of, or at the direction of, a criminal street gang.
2. ANALYSIS
Defendant insists that the instructions were confusing because the jury was advised first that it must decide the truth of the information relied upon by the gang experts, including statements; it was then told not to consider unidentified statements relied upon by the gang experts as proof such statements were true.
Initially, the People contend that defendant waived this claim by failing to object or seek a modification of CALCRIM No. 360 in the trial court. We note that on June 30, 2016, after the trial in this case, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Prior to that time, CALCRIM No. 360 had been approved by the California Supreme Court. (See People v. Vega-Robles (2017) 9 Cal.App.5th 382 (Vega-Robles).)
Defendant does not address Sanchez until his reply brief.
Sanchez involved the testimony of a gang expert to support a finding that a crime was committed for the benefit of or at the direction of a criminal street gang within the meaning of section 186.22. The expert relied upon contacts with the defendant reported by other officers, field identification cards that were filled out by other officers, and reports prepared by other officers. This evidence was not admitted through any other witnesses. The gang expert testified regarding the details of the other officers' reports and field identification cards and relied on those statements in reaching his opinion that the defendant was a gang member and committed the crime for the benefit of the gang. (Sanchez, supra, 63 Cal.4th at pp. 671-673.)
The Sanchez court clarified what an expert could testify about under Evidence code section 802. "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests." (Sanchez, supra, 63 Cal.4th at pp. 685-686.) It continued, "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Evidence Code section 802 provides, "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." --------
The court then adopted the following rule: "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. It cannot logically be maintained that the statements are not being admitted for their truth." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) "With respect to the hearsay rule, the Supreme Court in Sanchez drew a distinction between 'an expert's testimony regarding his general knowledge in his field of expertise,' and 'case-specific facts about which the expert has no independent knowledge.' [Citation.] The former is not barred by the hearsay rule, even if it is 'technically hearsay,' while the latter is." (Vega-Robles, supra, 9 Cal.App.5th at p. 408.)
The Sanchez court also addressed the instructions given in this case. In Sanchez, the jury was instructed with CALCRIM Nos. 332 and 360. The jurors were instructed as to the specific statements. The Sanchez court concluded, "Jurors cannot logically follow these conflicting instructions. They cannot decide whether the information relied on by the expert 'was true and accurate' without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true. 'To admit basis testimony for the nonhearsay purpose of jury evaluation of the experts is . . . to ignore the reality that jury evaluation of the expert requires a direct assessment of the truth of the expert's basis.' " (Sanchez, supra, 63 Cal.4th at p. 684; Vega-Robles, supra, 9 Cal.App.5th at p. 417.)
Under Sanchez, decided after the trial in this case, the California Supreme Court found these instructions were confusing and conflicting. As such, we will review defendant's claim that the instructions were misleading and confusing.
Defendant claims that it cannot be shown beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, or even under the state standard of reasonably probable a better result would have been reached under People v. Watson (1956) 46 Cal.2d 818, 836, that the jury would have found him guilty of the gang-related charge and enhancements if not confused by the instructions. Advising the jurors that they must decide if the information relied upon by the gang experts was true and accurate, but not if such information consisted of unidentified statements made by "many others" to the experts, was prejudicial. He contends that if CALCRIM No. 360 had been correctly worded to be more specific, such as identifying the statements, he would have received a more favorable verdict.
No prejudice appears under any standard of harmless error. (See Vega-Robles, supra, 9 Cal.App.5th at p. 431.) A defendant has the burden to show error and resulting prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972.)
In Vega-Robles, the jury was similarly instructed with CALCRIM Nos. 332 and 360. It found the instructions harmless. It concluded, "To the extent this instruction referred to persons who did not testify from personal knowledge, it was erroneous. However, given the extensive testimony by former gang members and associates of Phillips, Delatorre, and defendant, there is no reasonable probability of a different result in the absence of the instructional error. [Citation.] Indeed, in our view, the errors in this case were harmless beyond any reasonable doubt as to every finding and verdict returned by the jury." (Vega-Robles, supra, 5 Cal.App.5th at p. 417.) Similarly, in Sanchez, the court examined the non-testimonial, non-hearsay evidence that supported the verdict in discussing prejudice. (Sanchez, supra, 63 Cal.4th at pp. 698-700.)
Defendant has made no attempt to identify which statements should have been included in CALCRIM No. 360. Moreover, Sanchez stated such instruction is not properly given as it confuses the jury. Defendant has not identified any statements admitted, which would be considered hearsay under Sanchez. "Determining prejudice requires an examination of the elements of the gang enhancement and the gang expert's specific testimony." (Sanchez, supra, 63 Cal.4th at p. 698.) We will not make defendant's arguments for him and find that defendant has failed to meet his burden of showing prejudice.
Moreover, ample non-testimonial, non-hearsay evidence was admitted to support the gang allegations. Deputy Baraness testified that he was present when defendant admitted that he was a gang member and a "Eme." Baraness also testified about photographs showing Chapa and defendant displaying VCR gang signs. In his experience, these gang signs were used by VCR gang members, a properly admitted opinion. Both defendant and Chapa had gang tattoos. Finally, they were together during the robbery wherein Chapa yelled "Coachella" and formed a "C" with his hand, both symbols of the VCR gang. Finally, Rodriguez refused to look at a six-pack photographic lineup because she was afraid since Chapa was a gang member. This was ample evidence to support the substantive crime in count 4 and the gang allegations. Defendant's broad argument that his due process rights and rights to a fair trial were violated does not support reversal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. FIELDS
J.