Opinion
C080282
03-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL AGUILERA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F06897)
A jury found defendant Jose Manuel Aguilera guilty of attempted murder and sustained a firearm and a gang enhancement in connection with the offense. It was unable to reach a verdict as to two other counts of attempted murder of two other victims, as to which the trial court declared a mistrial. Pursuant to the gang enhancement, the court sentenced defendant in August 2015 to state prison for a minimum indeterminate life term of 15 years, as enhanced with a minimum indeterminate life term of 25 years for the firearm violation. Defendant appealed in September 2015; the case was fully briefed (including supplementary briefing requested by the court) in February 2018.
On appeal, defendant maintains that there is insufficient evidence to support the gang enhancement under the criteria for proving the associational ties of predicate offenses under People v. Prunty (2015) 62 Cal.4th 59 (Prunty), and also contends People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which bars admission of expert testimony involving case-specific hearsay as a violation of the right to confrontation, excludes proof of the predicate offenses in this case. He also argues that prosecutorial misconduct in closing argument requires reversal. In supplementary briefing, the People concede that recent amendments to the firearm enhancement effective in 2018 have retroactive effect in defendant's pending appeal, requiring remand for resentencing. We shall affirm the judgment of conviction as modified (striking the gang enhancement) and remand to the trial court for resentencing on the firearm enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
This is an unfortunate tale of violence arising out of seemingly innocuous interactions between rival criminal gangs centered respectively in Northern and Southern California. Defendant does not challenge the sufficiency of the evidence to support his underlying conviction or the enhancement for personal use of the firearm, so we provide a limited overview of events mainly to give context to his arguments. We will incorporate facts relevant to the gang enhancement in the Discussion.
The victim of the count for which defendant was convicted of attempted murder was at a gathering watching a football game in August 2011. After arguing with a girlfriend, he walked to a nearby convenience store to get a cigar. He was attired with a hat, jersey, and belt in colors associated both with the football team he favored and with Norteños, the northern gang, although at trial he demurred to anything more at present than being "affiliated [with the gang] by family." He had been sharing a fifth of some type of Paul Masson liqueur, along with beer. The victim's residence accessed an alley behind it leading to the street and the nearby convenience store.
In the store, the victim noticed two unfamiliar men wearing clothing in the color of Sureños, the southern gang, staring hard at him in a manner unbefitting strangers. These were defendant and a superior member (two years older) of the Sureños with which gang both associated. (Defendant had been earlier associated with one subset that "ended up falling apart," but now was part of a different subset.)
Defendant picked up on the fact that the victim was associated with the Norteños. Although he had never seen the victim before, defendant decided the victim might have been part of a group from that gang that had recently beaten up his younger cousin, because the victim was "hella old" and his tattoos matched a description defendant had heard about one of the attackers.
When the victim walked out of the store, he saw defendant and his companion get into a car. As the car drove past the victim, defendant and his companion—who were both passengers—made gestures at him associated with the Sureños. The victim replied with his own hand gestures, claiming at trial it was only a rude gesture with his middle finger; defendant's companion apparently perceived a reference to the victim's subset. The victim turned down the alley to his home. He sat down on a concrete bench and passed out.
Defendant and his superior had been passengers in a car, along with defendant's girlfriend, on their way to a party. Another woman, who was driving, had known the superior as a friend for a long time. After stopping at the convenience store (where the women used the bathroom), they drove off. The superior told the driver to head down the street to the alley. He and defendant got out of the car. The driver heard shots, and the two men came running back to the car. The driver got onto the freeway and drove the men home.
The mother of the victim's girlfriend had come outside to look for him, knowing that he usually went to sit on the bench in the alley after an argument with her daughter. She saw two men walk into the alley who looked suspicious because their hands were under their shirts. Concerned, she ran back to the gathering and asked people to go retrieve the victim from the alley. A group of them rushed into the alley, awakening the victim. The victim looked down the alley and saw defendant and his superior. The victim got up from the concrete bench and took a couple of steps toward them, challenging them. Others in the group also possibly shouted challenges (at least in defendant's account).
Defendant began shooting at the victim with a gun he had tucked in his waistband, ostensibly because his superior told him to " 'buck 'em.' " One of the people coming to the victim's aid sustained a severe gunshot wound to his abdomen. He and another member of the group (the victim's sister-in-law, who died from cancer before trial) were the victims in the mistried counts.
Defendant called several witnesses to attest to his fragile mental state. Defendant was submissive toward his superior, and felt the need to comply with any order his superior gave him. He did not want to continue to participate in his gang, but members in general and his superior in particular would coerce his cooperation, as they did with others. As a result, he was in constant fear of retaliation. Defendant twice was committed to the county's mental health facility for suicide threats in 2007. As a result, through 2009 he was both under the supervision of a psychiatrist and consulted with a licensed therapist. Both concurred that defendant suffered from posttraumatic shock syndrome, with symptoms of sleepless nights, nightmares, and a fear of leaving the house because he might encounter either the rival gang or his own. Some of the symptoms of his syndrome were "exaggerated startled response" and "hypervigilance," leading to an unreasonably heightened need for self-protection in the presence of metaphorical "triggers." The syndrome cannot be cured, but it can be managed. Defendant did not make any mention of this in the course of his police interview in the present case, or during a police interview in October 2008.
DISCUSSION
1.0 The Evidence Is Insufficient to Support the Gang Enhancement
1.1 Expert Testimony
The area in which the shooting took place was the territory of a subset of the Norteños—Franklin Boulevard. It was to this subset that the victim purportedly referenced with his hand gesture, in defendant's account.
The Sureños had its genesis in a prison gang that dates back to the 1960's. The only connection the expert described between the prison and street gang was the use of common insignia. There are a number of different subsets of the Sureños that associate with particular geographic areas in Sacramento, sharing the insignia. There are far fewer members of the Sureños present in Sacramento than their rivals, so they are not as strictly associated with these particular areas, and "they do have to cooperate and hang out with each other kind of for mutual support and protection" from the mutual threat of the Norteños.
In an earlier police contact with defendant, he claimed affiliation with the Sureños, and had various insignia corroborating his claim. In a traffic stop in January 2009, defendant was in a car with his superior. In his interview in the present matter, defendant asserted, "I ain't a scrap I'm a Sureño." At the time of the present offense, defendant continued to have a number of indicia of his affiliation with the Sureños. The expert believed the present offense which defendant committed at the urging of his superior was for the benefit of the Sureños generally because his particular subset was so small. The expert was not aware of any particular subset to which defendant's superior belonged. The expert also opined that the crime was committed in association with the Sureño criminal street gang because two members of the gang committed the crime.
The expert described other predicate offenses committed by Sureños. Two members of a different Sacramento Sureño subset committed an assault with a firearm in March 2010. A gang member not associated with any particular subset but identifying with the Sureños killed a Norteño gang member with a knife during a fight in May 2009 in Sacramento. These offenses are in addition to defendant and his superior both participating in the present offenses for the benefit of the Sureños.
1.2 Analysis
Among the elements of a gang enhancement is the requirement of evidence that a defendant committed an offense for the "benefit" of (or in "association with") a criminal gang. (Pen. Code, § 186.22, subd. (b)(1).) This necessarily requires proof of the existence of the criminal gang, which involves evidence of three or more persons associating under a common name or insignia with a primary activity of committing at least one criminal act specified in the statute, and—as is pertinent here—evidence that members of this association engage (alone or together) in a "pattern of criminal gang activity" involving two or more of the specified "predicate" criminal acts. (Prunty, supra, 62 Cal.4th at pp. 71, 74; People v. Gardeley (1996) 14 Cal.4th 605, 617; § 186.22, subds. (e) & (f).)
Undesignated statutory references are to the Penal Code. --------
Departing from the majority view previously prevailing (including our own decision in Prunty), the Supreme Court concluded that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organization connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.)
Prunty described our opinion as upholding a gang enhancement based solely on evidence that a defendant (who declared his "identification" with the larger association) espoused being part of a particular subset and invoked the name of the larger association in a confrontation with a rival gang member (as well as slurs for the rivals commonly used among those affiliated with the larger association), while a different subset committed the predicate offenses at issue; the only evidence of the connection among subsets was shared gang signs, symbols, colors and names. (Prunty, supra, 62 Cal.4th at pp. 67-69, 72, 76, 83-84.) "[T]he Court of Appeal reasoned [that] evidence of 'a common name . . . and common identifying signs and symbols . . . ' coupled with the existence of 'a common enemy . . . ' is sufficient to show that a criminal street gang exists." (Id. at p. 70.)
Prunty concluded this was not sufficient. There must be proof of more than merely "a common ideology that appears to be present among otherwise disconnected people." (Prunty, supra, 62 Cal.4th at p. 76, italics added.) Prunty offered "illustrative examples" of the manner in which to prove disparate subsets are in fact connected such that the actions of one can be attributed to another. (Ibid.) Even absent a formal hierarchy, different subsets can be connected if controlled by the same "hub" entity through leaders in the subset who answer to it, if the subsets provide financial support to it, or if they are subject to similar rules of conduct that the larger organization prescribes. (Id. at p. 77.) Acting in concert with other subsets, professing loyalty to one another, intermingling socially, expressly recognizing mutual affiliation, or having interchangeable membership also permits a rational inference of at least an informal connection. (Id. at pp. 77-79.) Prunty seems to have also suggested that it would be a sufficient connection if the other subset "self-identifies" with the same larger organization with which a defendant and his subset self-identify (although finding an absence of any direct or circumstantial evidence on this point in the expert's testimony regarding the other subset). (Id. at pp. 79, 83.)
A number of cases have found deficient evidence in light of Prunty. (People v. Cornejo (2016) 3 Cal.App.5th 36, 48-49 [shared ideologies insufficient absent particular evidence of behavior demonstrating connection]; People v. Franklin (2016) 248 Cal.App.4th 938, 950-951 ["no evidence whatsoever" of associational connections other than generalized testimony about link between larger organization and subsets not tied to predicate-offense subset]; People v. Nicholes (2016) 246 Cal.App.4th 836, 845-848 [control over subsets generally is insufficient; "[a]t a minimum, Prunty requires that the prosecution, in a case involving Norteños and testimony that Norteños operate through subsets, introduce evidence specific to the subsets at issue" (italics added)]; People v. Ramirez (2016) 244 Cal.App.4th 800, 815-816 [gang expert's testimony that subsets "aligned" with larger organization insufficient absent specific evidence that the subsets were connected to one another or to the overarching Sureño gang].)
Cases which have been able to affirm prosecutions litigated in ignorance of the criteria that Prunty would impose involve testimony of particular facts of organizational connection. (People v. Miranda (2016) 2 Cal.App.5th 829, 841-842 [detailed evidence of pyramid-like structure of larger organization and subsets in a jail setting, the rules imposed on members of various local subsets, working in concert in commission of crimes in the jail]; People v. Vasquez (2016) 247 Cal.App.4th 909, 924-926 [testimony and photos on social media that show associations between subsets at issue; evidence of fluid membership, joint commission of crimes]; People v. Ewing (2016) 244 Cal.App.4th 359, 372 [Prunty does not apply because the predicate offenses and the charged crimes were not committed by members of a subset, but rather by members of the umbrella gang], 374-376 [in any event, evidence that subset acted at direction of larger organization, which issued rules, required contributions, and controlled leaders; members also socialized together].)
Defendant argues the evidence is insufficient here because it did not establish any organizational connection among the Sacramento subsets of the Sureños, or between the subsets and the umbrella gang entity. The People concede there is insufficient evidence to show a link among subsets in the present case beyond shared ideology and uniting to fight a common enemy (which Prunty, supra, 62 Cal.4th at pp. 74-75 found insufficient). Therefore, the 2010 firearm assault cannot be a predicate act. Although the People allude to the 2009 stabbing, the present case does not have any evidence showing an organizational connection between the Sureños and its subsets other than ideology, and therefore a stabbing that someone committed who was aligned in an unspecified manner with the Sureños cannot be a predicate act; in any event, the People are quick to abandon any reliance on this offense as well. Instead, they focus on the claim that the enhancement can be upheld because defendant's attempted murder and his superior's uncharged offenses of abetting the three attempted murders can be the two predicate acts because both men were associated with the same subset and therefore Prunty does not apply.
In the first place, the People misstate the evidence. The gang expert specifically stated that he had not been able to narrow down the subset with which the superior was associated. Therefore, the superior's uncharged offenses suffer from the same lack of proof of an organizational connection as the 2009 and 2010 offenses. That defendant deferred to his superior does not establish the superior's role in the hierarchy of defendant's particular subset.
Moreover, the information and the verdict alleged in the gang enhancement that the offense was committed to further the overall gang, not defendant's particular subset. Therefore, even if the superior were part of defendant's subset, the absence of any connection beyond ideology between that subset and the Sureños defendant allegedly intended to benefit leaves the enhancement unsupported.
In short, we cannot press the evidence in this pre-Prunty case into the Procrustean Prunty criteria, as the People's opposition indicates. We therefore must strike the gang enhancement and modify the sentence for the attempted murder. 2.0 The Sanchez Issue Is Moot
Defendant contends proof of the gang enhancement rested in part on testimonial case-specific hearsay on the part of the gang expert, in violation of Sanchez, supra, 63 Cal.4th 665, and as a result the enhancement is infirm. We do not need to develop this argument further, or explain the holding in Sanchez in any detail beyond this generalized categorization. As we are striking the gang enhancement for insufficient evidence otherwise, this argument is moot.
3.0 Prosecutorial Misconduct Is Not a Basis for Reversal
3.1 Reference to "Process"
Defendant first challenges the following argument. "Think about the process that's being afforded here to [defendant], and think about what process [defendant] was affording [to the victim on] the night of [the shooting]. [¶] [Defendant] basically said well, we were in the same area, the dude had a red hat and a red belt and he kind of looked old with tattoos, so yeah, I can't let that happen to family, it's on. I mean judge, jury, executioner. Just like that." Defendant did not object. He now contends this argument somehow impugns his exercise of the right to a jury trial in an appeal to the "passions and prejudices" of the jury.
Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a "ritual[ized] incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant has not established futility on the present record. Defendant similarly fails to particularize why the prosecutor's argument could not have been the subject of an effective admonition. The argument is thus forfeited.
Defendant's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than a perfunctory analysis of how the failure to object in each instance did not meet objective professional standards; "[t]his will not suffice" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis]).
As we are not obliged to respond on the merits, it suffices to observe that we do not find anything untoward about the challenged argument. Defendant's characterization defies the manner in which a reasonable juror would perceive it. The prosecutor simply contrasted defendant's decision to take matters into his own hands, without any proof, with the manner in which society adjudicates guilt through the criminal justice system. There was not the slightest suggestion that the jury should find defendant guilty simply because he put the People to their proof. This forfeited argument is consequently baseless.
3.2 Reference to Burden of Proof
The second challenge involves the following argument. Alluding to defendant's attribution of his behavior to posttraumatic shock syndrome, the prosecutor initially stated that "it shocks the conscience" such a claim "should excuse him from shooting into a crowd of innocent people who had done nothing physical toward him." The prosecutor then pointed out that in any event defendant never mentioned having this condition in his interview with detectives. Had defendant done so, he could have called "[a] great [medical] witness" to corroborate the syndrome's effects. "Do we have any . . . indication whatsoever that he was suffering any of these issues during the time this occurred. No, we don't. [¶] You know what would have been helpful is we could have had some witnesses—now, again, they don't have to call anybody. They don't have to do anything. But if you wanted to establish that not in 2009, but in 2011 . . . ," at which point defense counsel objected. After a brief sidebar, the trial court overruled the objection. "I don't find it to entail any form of burden shifting to comment on the absence or failure to call logical witnesses. And the jury has been advised by counsel in his comments that the defense has no burden of proof on this issue." Defendant renews his objection on appeal that this argument was an effort to shift the burden of proof to him. He also contends this misstated the evidence at trial, because there was in fact medical testimony that he suffered from the syndrome and that it was incurable.
Given the expert testimony we summarized above, which did state that defendant suffered from the syndrome two years before the shooting, and its effects on defendant, and that it was incurable, the prosecutor misstated the evidence as to defendant's failure to establish he still suffered from the syndrome in 2011. (On the other hand, it was fair comment that defendant had never asserted in his police interview in the present case that he in fact acted out of an unreasonable reaction to any trigger for the syndrome.)
However, we presume the jury heeded the admonition of the trial court that the remarks of counsel are not evidence. Having heard the expert testimony for itself about defendant's diagnosis with an ongoing mental condition, the jury was perfectly capable of disregarding the prosecution's inaccurate claim that there was not any evidence of defendant's tendency to overreact in 2011. We therefore reject this argument.
3.3 Misstating the Elements of Self-defense
Defendant's third challenge is to rebuttal argument. After asserting that defendant came upon the scene looking for people who had hurt his family, the prosecutor stated, "He didn't just happen upon this group and be surprised into acting. That's what is required for self-defense. If they were out in the world and came [a]cross one another and this reaction happened, different story, maybe. . . . [¶] If they were out in the world at a mall . . . or somewhere where the defendant hadn't brought the fight to them, maybe we would be . . . in a different spot. . . . [¶] This isn't some chance meeting between groups that would shock somebody into a reaction. . . . Where we are is this defendant admitting he's in that area because he's looking for people who hurt his family. So he can't then be surprised when he produces the gun that he took from the car in the first place." (Italics added.) Defendant did not object. He now contends the prosecutor's conduct was "deceptive and reprehensible" and that his argument misstated the elements of self-defense.
Again, defendant fails to establish that this purported "misconduct" was irremediable, or that it would have been futile to object, or that it would violate professional norms to leave it unchallenged. Absolved as a result of the duty to provide any extensive analysis of the merits of this claim, we simply observe that while the prosecution was somewhat maladroit in communicating the concept, a reasonable juror would understand not that "surprise" was somehow an element to be incorporated into the trial court's instructions, but that one cannot claim self-defense when seeking out the victim and employing deadly force in the first instance. Furthermore, defendant does not overcome the presumption that the jury heeded the trial court's admonition that it must follow the court's instructions, not argument of counsel. (People v. Morales (2001) 25 Cal.4th 34, 47.) The underlying claim is consequently without merit.
3.4 Absence of "Cumulative" Error
Defendant claims a violation of his right to due process resulting from the cumulative effect of prosecutorial misconduct, unspecified ineffective assistance of counsel, and unspecified "trial errors." As we have not identified any errors other than the insufficiency of the evidence to support the gang enhancement under the criteria of Prunty, we reject the argument.
4.0 Resentencing Is Necessary for the Firearm Enhancement
In addressing members of defendant's family who spoke in his behalf at the sentencing hearing, the court stated, "I have no doubt that [defendant] regrets it. . . . I have no doubt that he wishes he could go back in time and change that day." However, "[t]he law gives me no discretion in changing the punishment in this case. It is severe, and there is nothing I can do about that, and there is arguably nothing I should do about that, given his conduct." In later addressing counsel, the trial court again emphasized that "I do not have discretion in imposing the [40-year-to-life] sentence" in granting a defense request for a continuance to determine if there a possibility that the court might have any discretion in imposing sentence. Defendant made a lengthy statement to the court in which he expressed his regret for the choices he had made in his life and the suffering he had inflicted on the victim, noting that he had abjured any further gang involvement during his lengthy presentence custody and had resolved to improve himself while in prison. The court responded that it did not have any doubt that defendant was not the same person who had committed the crime; "you have clearly and quite frankly unexpectedly . . . turned a corner," and "in terms of an expectation of change . . . you've fully and completely convinced me," but that it did not "have the ability to change the law." After listening to counsel's arguments, the court stated, "the penalties at those crossroads [of attempted murder with firearm and gang enhancements] are extremely harsh," but said it was clear that the statutory directives were mandatory. It then imposed a consecutive indeterminate term of 25 years to life for the firearm enhancement pursuant to section 12022.53.
Effective 2018, the Legislature amended section 12022.53, which now provides in pertinent part, "The court may, in the interests of justice . . . and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Id., subd. (h); see Stats. 2017, ch. 682, § 2.)
In other pending appeals, the People have conceded that the amendment applies retroactively to judgments that are not final. In our request for supplementary briefing, we asked the People whether they believed a retroactive application required remand for resentencing. The People did not dispute the retroactive application of the amendment, and (in light of the remarks quoted above) believed there was at least the reasonable probability that the trial court might exercise its discretion to strike the enhancement. Given that the discretionary power is for the trial court to exercise in the first instance and not this court (Collateral Loan and Secondhand Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1041, fn. 7) unless the operative facts compel a result as a matter of law, we accept the People's concession and will remand for resentencing on the firearm enhancement.
DISPOSITION
The gang enhancement is vacated. Defendant's sentence for attempted murder is modified to impose a minimum indeterminate life term of seven years. As so modified, the judgment of conviction of attempted murder is affirmed. The firearm enhancement is vacated and remanded for the trial court to consider exercising its discretion to strike or dismiss it. Upon its resolution of that matter, the trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
BUTZ, Acting P. J. We concur: MURRAY, J. RENNER, J.