Opinion
A144920
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A. APOLINARIO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. SC081796A, SC081796B, SC081796D)
A jury convicted Michael A. Apolinario, Jordy Diego Bernal, and Daniel Garcia (collectively, defendants) of active street gang participation (Pen. Code, § 186.22, subd. (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The jury found defendants committed the vehicle theft for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the jury convicted Apolinario of felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury convicted Garcia of assault with a firearm on a peace officer (§ 245, subd. (d)(1)) and found he personally and intentionally used a firearm in the commission of that crime (§ 12022.53, subd. (c)). The jury also found true Apolinario's prior conviction allegations. The trial court found true the allegations that Apolinario had prior strike convictions, including a Texas conviction (§ 667). The court sentenced defendants to state prison.
Undesignated statutory references are to the Penal Code. We recite the verdict and sentence only as relevant to the issues raised on appeal.
Defendants appeal, raising numerous claims of error. We conclude the court erred by determining Apolinario's prior Texas conviction constituted a serious felony under California law. Accordingly, we remand for retrial on that conviction. We remand Garcia's case for the court to exercise its discretion regarding whether to strike the section 12022.53 enhancement. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
The prosecution charged defendants with the following crimes arising out of a May 2012 incident: active street gang participation (§ 186.22, subd. (a)); conspiracy to commit first degree murder (§§ 182, subd. (a)(1), 187, subd. (a)); attempted murder (§§ 664, 187, subd. (a)); assault with a firearm upon a peace officer (§ 245, subd. (d)(1)); and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The prosecution also charged Apolinario with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)).
The information alleged numerous sentencing enhancements, including—as relevant here—that defendants committed the vehicle theft for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that Garcia personally and intentionally discharged a firearm in the course of assaulting a peace officer with a firearm (§ 12022.53, subd. (c)). Finally, the information alleged Apolinario had eight prior convictions, including three "aggravated assault" convictions from Texas (Tex. Pen. Code, § 22.02, subd. (a)(2), § 667).
The May 2012 Incident
T.A. joined the Barrio Norteño Locos (VNL) subset of the Norteño gang in approximately 2006. T.A. met Apolinario in 2007 or 2008, when Apolinario joined VNL. Apolinario was an admitted gang member. T.A. also knew Bernal and Garcia. Bernal was a Norteño, and he associated with VNL. T.A. dropped out of VNL in 2011 or 2012. He made disparaging remarks about VNL and its leader, Andrew Delgadillo.
On May 24, 2012, Apolinario texted Garcia about selling drugs and "peep[ing]" a "steelo," a stolen vehicle. The next day, May 25, Apolinario called T.A. Apolinario was angry. He asked T.A. "why [he] was talking shit about the hood." That same day, Delgadillo texted Bernal about orders to "hit" T.A., and to "[g]et shit ready. Straps. Mask. Gloves. Lil homies." Bernal recruited people to help with the hit and indicated he was going to Oakland.
A "strap" is a slang term for firearm.
Apolinario texted Garcia about "hitting [T.A.] tonight" and asked him, "Can you get shit ready?" Garcia asked Apolinario to come to Oakland around 6:00 p.m. Apolinario agreed and asked for a ride; Garcia responded that he was on his way. Cell phone mapping showed Garcia's phone near Apolinario's residence. Around 7:00 p.m., cell phone mapping showed Garcia's phone moving towards Oakland. Later that evening, a green Saturn (Saturn, or car) was stolen in Oakland.
At 1:41 a.m. on May 26, 2012, San Bruno Police Officer Matthew Perencin responded to a call regarding a disturbance between possible gang members. Perencin drove around the area and saw the Saturn leaving a "closed business," which seemed unusual. Several people were in the Saturn. The car ran two stop signs and accelerated to 50 miles per hour in a residential area. Perencin activated his emergency lights and pursued the Saturn, which ran another stop sign and "continued at the same rate of speed." Eventually, the Saturn approached an elementary school and began slowing down. Three men—including the driver—jumped out of the car and fled on foot. The front passenger ran southbound, around the front of the school.
The driver and the rear passenger fled eastbound, through an alleyway between the school and the surrounding neighborhood. Perencin sprinted after the two men, repeatedly yelling "Police. Get on the ground." One man jumped over a fence; the other ran in the street. Perencin followed the man running in the street, yelling, "Police. Get on the ground." The man did not comply. Instead, he turned back toward Perencin and fired two shots, one of which narrowly missed Perencin's head. Perencin returned fire, but then slipped and fell to the ground. The man continued running.
Another police officer saw Apolinario run from the school. That officer chased Apolinario and ordered him to stop, but Apolinario did not comply. At 3:37 a.m. on May 26, Apolinario called Delgadillo and the two men spoke for several minutes. Later that day, Delgadillo texted the girlfriend of VNL's former leader: " 'Can you pick up what they tossed?' " The police later found Apolinario hiding in a nearby garage. He had a plastic baggie containing methamphetamine. On his face and right hand were particles consistent with gunshot residue. The presence of these particles "ma[d]e the conclusion that a firearm was discharged. It could have been discharged by" Apolinario, or he "could have somehow . . . come into contact with" the gunshot residue.
Delgadillo called Christian L. a few days after the incident. Delgadillo said he thought Bernal "had gotten into something" and told Christian L. to look around the elementary school to see if defendants had "dropped the guns or threw them away."
The police found Bernal in the backyard of a nearby house. He was wearing a red belt with a "N" on the belt buckle. Red is a color "commonly worn by Norteño gang members." Bernal had gang tattoos, and his cell phone contained images of Norteño "gang members making a gang sign wearing gang clothing." Bernal told the police he had driven a stolen vehicle from Oakland to San Bruno.
In the early morning hours of May 26, 2012, Garcia knocked on the window of a man who lived near the school. Garcia said he had shot at the police. He begged the man to let him inside the house. The man refused. Garcia left the house, but a few minutes later, he texted the man: "Don't speak on what happened. Take to your [tomb]." That same morning, Garcia called another person and said he had shot at the police and was " '[o]n the run.' " That evening, police arrested Garcia. On his right hand and face were "many consistent particles" of gunshot residue.
The elementary school's walls and windows had bullet holes. Police found a loaded .38-caliber revolver in the bushes in front of the school. A neighbor found another .38-caliber revolver in his backyard. The Saturn was crashed into a school gate. In the ignition was a shaved key, typically used "to steal vehicles." The car belonged to an Oakland resident who had not given Delgadillo or defendants permission to take it. A beverage container with Apolinario's DNA was on the Saturn's front passenger floorboard.
Police found gloves with Apolinario's DNA near the elementary school; they also found a hat with Bernal's DNA. In Bernal's house, police found .38-caliber bullets matching those found in the revolver found at the elementary school. In Apolinario's house, police found gang writings and drawings, and a document showing Apolinario was an admitted VNL member.
Gang Expert Testimony
Inspector Jaime Draper testified as a gang expert to the following:
1. The Norteños
The Norteños are the predominant criminal street gang in Northern California. The Norteños claim the color red; their common signs and symbols include the number 14, roman numerals XIV, and the words Norte, Norteño, and Northerner. The Norteños are governed by the prison gang Nuestra Familia. Local subsets of the Norteños form alliances, and they sometimes commit crimes together. There are between 1,000 to 1,500 Norteño gang members in San Mateo County.
Respect and disrespect "are major factors in almost every gang crime." A gang member—and by extension the gang—gains respect by "committing violent acts." Respect entails instilling fear in "rivals, . . . junior members of the gang, people in the neighborhoods, [and] potential witnesses." Gang members often commit crimes together, to boost the reputation of individual gang members and to elevate the gang as a whole. The Norteño gang's primary activities include murder, attempted murder, assault with a deadly weapon, robbery, narcotics sales, possession of narcotics for sale, and firearms possession.
2. Predicate Offenses
Draper testified regarding the following 13 predicate offenses committed between 2007 and 2012 by various people Draper identified as gang members, and the court admitted the certified records of conviction:
(1) Apolinario's conviction for allowing a loaded firearm in his vehicle and a gang enhancement; and Jeremy Azama's conviction for assault with a firearm and gang enhancements, both of which arose out of a 2007 shooting; (2) Delgadillo's conviction for carrying a concealed loaded weapon on his person; (3) Garcia's conviction for possessing cocaine for sale and possession of a firearm by a prohibited person; (4) Ruben Villasenor's conviction for possessing methamphetamine for sale; (5) Ariel Cabeza's conviction for attempted murder, with a great bodily injury allegation; (6) Gregario Guzman's conviction for possessing narcotics for sale; (7-10) convictions for Robert Herrera, Daniel Bustos-Mendez, Andrew Marquez, and Ronald Resendenz for various felonies arising out of an attempted robbery, with gang enhancements; (11) Harry Bermudez's conviction for manufacturing methamphetamine, with gang and firearm enhancements; (12) Gualberto Figuero's conviction for possessing drugs for sale; and (13) Raymond Garcia's conviction for assault with force likely to cause great bodily injury, with gang and great bodily injury enhancements.
Draper investigated the incident that led to Apolinario and Azama's convictions. From the police reports and in speaking with other investigators, Draper learned that Apolinario and Azama traveled in a car in San Bruno, and that someone in the car fired a gun at several suspected Sureños standing on the street. Police stopped Apolinario and Azama in the car and recovered a firearm. Draper opined Azama was a Norteño gang member because he had numerous gang tattoos and was an admitted gang member, and because the targets of the shooting were rival gang members. Draper opined Apolinario was a Norteño when he committed the offense because he had a gang tattoo on his chest and "was involved in the case with Mr. Azama, another known and admitted member of the Norteño gang." Draper also personally investigated an incident in February 2005 where Apolinario was shot by a "possible rival . . . gang member." "[A]n arrest was never made in [that] case."
3. Defendants' Contacts with Law Enforcement
Draper reviewed police reports, jail reports, and field identification records and related their contents as follows:
a. Apolinario
During a 2006 traffic stop, Apolinario admitted previous membership in The Mob, a Norteño gang. Apolinario claimed he was no longer a member of that gang, but he was wearing red clothing. Jail reports from 2008 and 2009 documented the following: (1) a fight between Apolinario and a Sureño; (2) Norteño gang writings and educational materials found in Apolinario's jail cell; and (3) documents showing Apolinario held a rank within the Norteño gang. A 2010 incident report generated by the Department of Corrections validated Apolinario as an associate of the Northern Structure prison gang, a part of the Norteño gang hierarchy. In classification documents generated when Apolinario was arrested in connection with the May 2012 incident, Apolinario stated he was a validated member of the Northern Structure.
b. Bernal
A 2010 police report documented Bernal wearing gang clothing on a school campus. When questioned by police, Bernal denied gang membership but admitted he dressed like a Norteño and that rival gang members would believe he was a Norteño. In other 2010 police reports, Bernal was in the presence of Norteño gang members and admitted to being a Norteño. In 2011 police reports, Bernal was assaulted by someone who accused him of being a Norteño; Bernal admitted, "I'm a Northerner." Another 2011 police report documented Bernal's arrest, for burglary, with two Norteños. 2011 and 2012 police reports documented Bernal wearing gang clothing and admitting Norteño membership.
c. Garcia
In a 2006 police report, Garcia stated "he used to bang Crips." A 2008 police report documented a probation search of Garcia's bedroom, where police recovered a handgun, cocaine packaged in a manner consistent with sales, and several writings indicative of membership in ESB, a gang that associated with VNL. Garcia was convicted of possession of narcotics for sale as a result of that search. A 2010 police report documented Garcia's altercation with a Sureño. In 2010, law enforcement contacted Garcia, who wore Norteño colors.
4. Draper's Expert Opinion
The prosecutor described a hypothetical with facts similar to the present case. Then the prosecutor asked Draper whether the hypothetical people fitting defendants' descriptions: (1) were active participants in a criminal street gang when they committed the actions; and (2) whether they committed those actions in association with, for the benefit of, or at the direction of, a criminal street gang. Draper answered affirmatively. As to the hypothetical gang member mirroring Apolinario, Draper based his opinion on the presence of gang tattoos, validation of the gang member within the prison system, the person's prior convictions for gang crimes, and the person's admissions of gang membership. As to the hypothetical gang member mirroring Bernal, Draper based his opinion on the presence of gang tattoos, the person's wearing gang clothing in the company of other gang members, the person's admission of being a gang member, and involvement in this case with other active gang members. As to the gang member mirroring Garcia, Draper based his opinion on the presence of gang tattoos, the text messages the person sent after the crime, and the person's "quasi admissions" to past gang membership.
In Draper's opinion, all three gang members committed the crimes together. The crimes were directed by orders from the hypothetical leader mirroring Delgadillo, and some of the crimes were to benefit the gang by doling out retribution to a dropout. The concepts of respect and loyalty factored into Draper's opinion. According to Draper, gang members rely on other gang members to back each other up during crimes and to resist law enforcement; gang members also vouch for each other to accrue respect within the gang. Shooting at a police officer enhances the shooter's level of respect within the gang.
Other Gang Evidence
San Bruno Police Corporal Joe Valiente had numerous interactions with Bernal before May 2012. When Valiente met Bernal, he associated with the Sureños. Later, however, Bernal associated with the VNL subset of the Norteños. Bernal repeatedly told Valiente he was trying to get out of the gang. Bernal also said he was stabbed by a rival gang member in 2010.
Draper identified Apolinario as a Norteño based on pictures of Apolinario's tattoos. From 2007 to 2012, Apolinario acquired more tattoos, which Draper opined "indicates a continual membership" in the Norteños. Draper also identified Garcia as a gang member based on his tattoos.
Verdict and Sentence
The jury convicted defendants of active street gang participation (§ 186.22, subd. (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The jury found true the allegation defendants committed the vehicle theft for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury convicted Apolinario of possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury convicted Garcia of assault with a firearm on a peace officer (§ 245, subd. (d)(1)) and found true the allegation he personally discharged the firearm in the commission of the crime (§ 12022.53, subd. (c)). The jury also found true Apolinario's prior felony conviction allegations.
The court sentenced defendants to the following prison sentences: (1) Apolinario to 20 years and four months, which included a five-year enhancement for one of Apolinario's Texas prior convictions (§ 667, subd. (a)(1)); (2) Bernal to six years; and (3) Garcia to 29 years, which included 20 years on the enhancement for personally discharging a firearm in the commission of the assault on a peace officer (§ 12022.53, subd. (c)).
DISCUSSION
I.
No Prejudicial Error Under State Hearsay Law
or the Confrontation Clause
Defendants contend their conviction for active street gang participation, and the gang enhancement, must be reversed because Draper related inadmissible, case-specific testimonial hearsay from various documents, including police reports. The Attorney General argues defendants have forfeited this claim. We consider the claim on the merits.
A. Relevant Legal Principles
Active participation in a criminal street gang has "three elements: (1) participation in a street gang that is more than nominal or passive; (2) knowledge the gang's members engage in, or have engaged in, a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal conduct by members of that gang." (People v. Velasco (2015) 235 Cal.App.4th 66, 73; § 186.22, subd. (a).) " 'Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with any criminal street gang.' " (People v. Ochoa (2017) 7 Cal.App.5th 575, 581 (Ochoa).)
" 'To establish that a group is a criminal street gang . . . , the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity.' " (Ochoa, supra, 7 Cal.App.5th at p. 581.) " 'A "pattern of criminal gang activity" is defined as gang members' individual or collective "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" enumerated "predicate offenses" during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons.' " (Ibid., fn. omitted.)
After defendants' convictions, the California Supreme Court articulated a " 'paradigm shift' regarding how out-of-court statements used as expert testimony basis evidence are treated under California hearsay law." (Ochoa, supra, 7 Cal.App.5th at p. 588; People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).) "Sanchez held 'case-specific out-of-court statements conveyed by the prosecution's gang expert constituted inadmissible hearsay under state law and, to the extent they were testimonial, ran afoul of Crawford.' " (People v. Mooring (2017) 15 Cal.App.5th 928, 936.) Sanchez bars an expert from relating "as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) "Sanchez reiterates that an expert 'may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . . There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.' " (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1283 (K.W.).) " 'If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay.' " (People v. Mooring, supra, 15 Cal.App.5th at pp. 936-937.)
B. Harmless Error
Apolinario argues Draper related "significant amounts" of case-specific hearsay from various documents, including police reports and prison classification documents (collectively, police reports). We assume for the sake of argument Draper related case-specific hearsay in violation of Sanchez and conclude the error was harmless. As discussed in detail below, it is not reasonably probable Apolinario would have obtained a more favorable result in the absence of the improperly admitted testimony because ample admissible evidence established the elements of the active gang participation charge and the gang enhancement. (See Ochoa, supra, 7 Cal.App.5th at pp. 588, 589; K.W., supra, 13 Cal.App.5th at p. 1286.)
Draper testified about the Norteños' operations, primary activities, and pattern of criminal activities, all of which was unrelated to defendants or the May 2012 incident and which mirrored the permissible background testimony the expert gave in Sanchez. (Sanchez, supra, 63 Cal.4th at p. 698.) Thus, under state law after Sanchez, Draper was permitted to testify about general background information about the Norteños, even if based on hearsay sources. None of this background information was testimonial. (See People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, 1171, review granted Mar. 22, 2017, S239442.)
In addition, the court admitted certified copies of the predicate offenses, which fall within a statutory exception to the hearsay rule (Evid. Code §§ 452.5, subd. (b), 1280) and are not testimonial. (See People v. Moreno (2011) 192 Cal.App.4th 692, 710-711.) The records placed in evidence by the prosecution show that Apolinario was convicted of allowing a loaded firearm in his vehicle, with a gang enhancement. That conviction "was powerful evidence" Apolinario was a Norteño (Ochoa, supra, 7 Cal.App.5th at p. 587) and that he assisted "felonious criminal conduct by members of that gang." (§ 186.22, subd. (a).)
In addition, Draper had personal knowledge of the incident leading to Apolinario's conviction and testified Apolinario was a Norteño when he committed the offense. Draper also personally investigated an incident in February 2005, where Apolinario was shot by a "possible rival . . . gang member." Expert witnesses may testify as to matters within their personal knowledge. (Sanchez, supra, 63 Cal.4th at pp. 675, 683; K.W., supra, 13 Cal.App.5th at p. 1286.) In addition, T.A. testified regarding the date Apolinario joined VNL. Finally, Draper identified Apolinario as a gang member based on pictures of Apolinario's tattoos. That evidence was not hearsay and was not testimonial. (Sanchez, at p. 677; People v. Cooper (2007) 148 Cal.App.4th 731, 746.)
Even if we accept defendants' argument that all of Draper's testimony premised on the police reports constituted testimonial hearsay, we would conclude the error was harmless beyond a reasonable doubt under Crawford. (See Ochoa, supra, 7 Cal.App.5th at p. 586, fn. 8; People v. Blessett (Apr. 30, 2018, C074267) ___ Cal.App.5th ___, [2018 Cal.App.LEXIS 385 at pp. *91-*92] [assumed error in admitting testimonial hearsay was harmless beyond a reasonable doubt].) The evidence supporting defendants' active gang participation conviction and the gang enhancement was overwhelming, rendering the prosecution's reliance on the testimonial hearsay unnecessary. The testimonial hearsay "did not contribute to the verdict," and was "unimportant in relation to everything else the jury considered on the issue in question." (People v. Song (2004) 124 Cal.App.4th 973, 984.)
Given this evidence, it is not reasonably probable a result more favorable to Apolinario would have been reached had the court excluded the inadmissible hearsay. Apolinario's arguments to the contrary are not persuasive. For example, Apolinario contends the admission of the evidence was prejudicial because the "gang evidence had no legitimate purpose in this trial." This argument defies logic and common sense. The gang evidence was indisputably relevant to prove the active gang participation charge, and the gang enhancement. Nor was the evidence against Apolinario "very weak." As we discuss in detail below, substantial evidence supports Apolinario's convictions.
Garcia also challenges Draper's recitation of case-specific hearsay contained in various police reports. We conclude any admission of case-specific hearsay was harmless because ample admissible evidence established Garcia was an active gang participant and that he committed the crimes for the benefit of, at the direction of, or in association with the gang. As noted above, Draper testified about the Norteños' operations, primary activities, and pattern of criminal activities. Draper also identified Garcia as a gang member based on his tattoos. Garcia's cell phone records contained texts with another gang member, Apolinario, about selling drugs (a primary activity of the Norteños), stealing a car, and "hitting" T.A. And Garcia committed the crimes at issue with other gang members. In light of this overwhelming evidence, it is not reasonably probable Garcia was prejudiced by the admission of the inadmissible hearsay. (Ochoa, supra, 7 Cal.App.5th at p. 589.)
Like the other defendants, Bernal complains Draper recited case-specific hearsay from various police reports. As discussed in detail above, any assumed error admitting case-specific hearsay contained in the police reports was not prejudicial because ample admissible evidence established Bernal was a Norteño. (Ochoa, supra, 7 Cal.App.5th at pp. 588, 589.) Draper testified about the Norteños' operations, primary activities, and pattern of criminal activities, and Valiente testified he had conversations with Bernal where he admitted "he was a Norteño." (Evid. Code, § 1220.) When the police arrested Bernal in connection with the May 2012 incident, he was wearing a red belt—a color "commonly worn by Norteño gang members"—with a "N" on the belt buckle. Bernal had gang tattoos, and his cell phone contained images of Norteño "gang members making a gang sign wearing gang clothing." These pictures were not hearsay, and were not testimonial. (See People v. Cooper, supra, 148 Cal.App.4th at p. 746.) Admissible evidence also established the other elements of the active street participation charge and the gang enhancement: Bernal received instructions to "hit" T.A. from VNL's leader, Delgadillo; Bernal recruited people to help with the hit; and Bernal committed the crimes at issue with Apolinario and Garcia, other gang members. (Ochoa, supra, 7 Cal.App.5th at p. 581 [charged crime may qualify as predicate offense]; § 186.22, subds. (a) & (b).)
The record is not sufficiently developed to determine whether Bernal's self-admissions violated the confrontation clause. (Ochoa, supra, 7 Cal.App.5th at pp. 583, 585.) Bernal may have made his admissions during informal interactions with Valiente, rather than as part of an investigation to memorialize facts relating to past criminal activity.
II.
No Error in Admitting 13 Predicate Offenses
Defendants claim the admission of 13 predicate offenses contravened Evidence Code section 352 and violated their due process rights. Apolinario also argues the court erred by allowing the prosecutor to use his prior conviction (for allowing a loaded firearm in his vehicle (former § 12034, subd. (b)) as a predicate offense.
A. Background
At a pretrial hearing, the prosecutor asked to introduce 14 predicate crimes to prove the nature of the gang and its primary activities. Defendants objected under Evidence Code section 352, urging the court to admit only two predicates. Apolinario highlighted the danger that the jury would use the prior conviction as a "prior bad act" in violation of Evidence Code section 1101 and that "the nature" of that conviction was "prejudicial." In response, the prosecutor argued the predicate offenses were not "unduly prejudicial" and would not be "unduly time consuming" because Draper had personal knowledge of many of the predicates and would "simply state his opinion as to why the underlying crimes were gang-related and his basis for that [opinion]."
The court noted its "wide discretion" regarding the admission of predicate crimes, and stated it did "not have to limit the prosecutor to the minimum amount of predicates. On the other hand, at some point, it becomes . . . cumulative to keep hearing over and over again all the different crimes." Ultimately, the court "limit[ed] the prosecutor to . . . no more than ten predicate offenses" but allowed Draper to "rely on hearsay, including police reports. And the prosecutor can use the predicate offenses that involve[ ] a particular defendant."
As the prosecutor questioned Draper about the 11th predicate offense, defendants objected under Evidence Code section 352. The prosecutor responded that there were "two more" predicates, and the court overruled defendants' objection. Draper testified regarding 13 predicate offenses. Later, at a hearing outside the presence of the jury, the court stated there was "some confusion" regarding the number of admissible predicate offenses. The court explained that it allowed the prosecutor to continue questioning Draper after defendants objected to the 11th predicate because it would have been "very awkward" to stop the prosecutor in the middle of questioning.
B. No Violation of Evidence Code Section 352
Defendants argue the court admitted an unduly prejudicial number of predicate offenses in violation of Evidence Code section 352. Here, the predicates were relevant to prove a " 'pattern of criminal gang activity' " (§ 186.22, subds. (e) & (f)) and that the commission of crimes was one of the "primary activities" of the gang. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Defendants' reliance on People v. Prunty (2015) 62 Cal.4th 59 does not demonstrate the predicate evidence in this case was irrelevant.
Evidence of an excessive number of relevant predicate offenses may be excluded as cumulative under Evidence Code section 352 if the prejudicial effect of admission substantially outweighs the probative value of the evidence. (People v. Tran (2011) 51 Cal.4th 1040, 1048 (Tran).) "Although no bright-line rules exist for determining when evidence is cumulative, . . . the term 'cumulative' indeed has a substantive meaning, and the application of the term must be reasonable and practical." (People v. Williams (2009) 170 Cal.App.4th 587, 611 (Williams).) We review the admission of gang evidence for abuse of discretion. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1434.)
There was no abuse of discretion here. The 13 predicate offenses were not cumulative inasmuch as they concerned different individuals. Nor was the evidence of the predicate offenses substantially more inflammatory than the testimony concerning the charged offenses. (See Tran, supra, 51 Cal.4th at p. 1047.) Draper's testimony did not consume an undue amount of time—the prosecutor presented the predicate offenses evidence in an efficient manner. Under the circumstances, the admission of 13 predicate offenses in this multi-defendant case was not outside the bounds of reason. (People v. Rivas, supra, 214 Cal.App.4th 1434, 1435-1436 [upholding admission of six predicate offenses]; People v. Hill (2011) 191 Cal.App.4th 1104, 1139, 1140 [no error in admitting eight predicates]; People v. Funes (1994) 23 Cal.App.4th 1506, 1519 [nine prior gang-related incidents].)
Williams, supra, 170 Cal.App.4th 587, does not "create an artificial limit of seven (or fewer) predicate offenses to prove the gang enhancement." (People v. Hill, supra, 191 Cal.App.4th at p. 1139.) Williams is also distinguishable. Here, the predicate offenses were not "cumulative evidence concerning issues not reasonably subject to dispute," and the admission of the evidence was not "beyond reasonable limits" or the cause of "endless discussions." (Williams, supra, 170 Cal.App.4th at pp. 610, 611.) The court did not abuse its discretion under Evidence Code section 352 by admitting the 13 predicate offenses.
Defendants' complaint about the "reams of documents" the prosecutor used to prove the predicate offenses does not furnish a basis for reversal. The prosecution may establish predicate offenses "by a showing of the fact of the convictions, rather than proof of the underlying conduct." (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5.) Defendants have not persuaded us "the prosecution must forgo the use of relevant, persuasive evidence to prove an element of a crime because the element might also be established through other evidence." (Tran, supra, 51 Cal.4th at pp. 1048-1049; see also Ochoa, supra, 7 Cal.App.5th at p. 589, fn. 10.)
C. No Due Process Violation and No Error in Admitting Apolinario's Former Section 12034 Conviction as a Predicate Offense
Next, defendants claim the admission of the predicate offenses "was so serious as to violate [their] federal constitutional rights to due process." "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) This is not, as defendants argue, one of those "rare and unusual occasions where the admission of evidence has violated federal due process and rendered [defendants'] trial fundamentally unfair." (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) Albarran is easily distinguishable.
Apolinario argues the court erred by allowing the prosecutor to use his former section 12034 conviction as a predicate offense. We disagree. That conviction was relevant to establish the knowledge element of the active gang participation charge. "In prosecutions for active participation in a criminal street gang, the probative value of evidence of a defendant's gang-related separate offense generally is greater because it provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of criminal gang activity." (Tran, supra, 51 Cal.4th at p. 1048.) Apolinario has not persuaded us that conviction was unduly prejudicial under Evidence Code section 352. (See Tran, at p. 1050.)
III.
Sufficient Evidence Supports the Gang Enhancement
Defendants argue insufficient evidence supports the gang enhancement, i.e. the jury's finding that the vehicle theft "was gang-related." We "view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.)
The prosecution established the Norteños were a "criminal street gang." (§ 186.22, subd. (f).) Draper described the history, structure and membership of the Norteño street gang, and stated the Norteños' primary activities included several predicate offenses (§ 186.22, subd. (e)). The court also admitted certified records of conviction of various Norteños, which demonstrated: (1) the Norteños were " 'an ongoing association of three or more persons with a common name or common identifying sign or symbol' "; (2) the Norteños " 'ha[d] as one of its primary activities the commission of one or more of the criminal acts enumerated' " in section 186.22, subdivision (e); and (3) the Norteños include members " 'who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting' " predicate offenses " 'during the statutorily defined period.' " (Sanchez, supra, 63 Cal.4th at p. 698.)
Substantial evidence establishes the vehicle theft was " 'committed . . . at the direction of, or in association with any criminal street gang.' " (People v. Rios (2013) 222 Cal.App.4th 542, 561; § 186.22, subd. (b)(1).) Delgadillo—VNL's leader—directed Bernal to "[g]et shit ready" for the hit. Apolinario texted Garcia about the hit, and asked him, "Can you get shit ready?" Defendants communicated about traveling to Oakland, and Apolinario agreed to go to Oakland with Garcia. Bernal indicated he was going to Oakland. He admitted driving a stolen car from Oakland to San Bruno, and Apolinario's DNA was found in the stolen Saturn. Cell phone mapping showed Garcia's phone near Apolinario's residence, and moving towards Oakland. This evidence supports inferences that defendants committed the auto taking at Delgadillo's direction, and that they committed the crime together. We conclude the evidence demonstrates the crime was committed at the direction of, or in association with, the Norteño gang.
Defendants' purported failure to "throw" gang signs, or to make "gang related comments while unlawfully driving" the Saturn are of no moment. This is not a situation like People v. Perez (2017) 18 Cal.App.5th 598, where a tattooed gang member shot at students at a college party. (Id. at pp. 601-603.) In Perez, the "only shred of evidence possibly connecting" the gang to the shooting was "the fact defendant was a tattooed, validated gang member" in the presence of other "Mexicans at the party, some of whom had tattoos." In addition, the expert's testimony consisted of a "sweeping generalization untethered . . . to specific evidence of both prongs of the gang enhancement." (Id. at pp. 609, 610.) Here, several gang members committed the crime together, at the direction of VNL's leader, and Draper's testimony was specific and tethered to the elements of the gang enhancement.
Substantial evidence also demonstrates the vehicle theft was "committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Rios, supra, 222 Cal.App.4th at p. 561; § 186.22, subd. (b)(1).) Draper testified gang members commit crimes together, to elevate the gang's status. As discussed above, defendants—VNL gang members—committed the vehicle theft together. "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)
We are not persuaded the gang enhancement must be reversed because the prosecution did not establish the vehicle theft was a " 'primary activity' " of the Norteños. "To trigger the gang statute's sentence-enhancement provision . . . the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute." (Sengpadychith, supra, 26 Cal.4th at p. 322, italics added.) Draper testified the Norteño's primary activities include murder, attempted murder, assault with a deadly weapon, robbery, narcotics sales, and possession of narcotics for sale, all of which are listed in the statute. (§ 186.22, subd. (e)(1)-(4).) The prosecutor was not required to prove vehicle theft was a primary activity of the gang. Defendants' reliance on People v. Ramon (2009) 175 Cal.App.4th 843 does not alter our conclusion. Ramon does not stand for the proposition that the expert must testify the charged crime is a primary activity of the gang.
Sufficient evidence supports the gang enhancement (§ 186.22, subd. (b)(1).)
IV.
The Prosecutorial Misconduct Claim Fails
Defendants argue the gang conviction and gang enhancement must be reversed because the prosecutor committed misconduct during closing argument by appealing to the jury's passion and sympathy.
A. Background
During rebuttal closing argument, the prosecutor stated: "Your job is to decide whether or not the charges are true. You are not to consider sentence. You are not to feel sorry for anybody. You are not to consider whether they're a bad or good person although I think you know the answer to that. But that is not to be considered in your deliberations. You have to decide what happened." Later—when describing the charges pertaining to the shooting—the prosecutor stated: Perencin was a "victim in this case whether he was hit or not." "[H]e did what he was supposed to do. He chased the car that was taking off from him. He was out there protecting the residents of San Bruno and the residents of this community. And I submit to you your job at this point in time is to protect Officer Perencin."
Garcia's counsel objected and asked "that the prosecutor be admonished. That is misconduct." Bernal and Apolinario's counsel did not join the objection. The trial court sustained the objection and ordered the jury to disregard the prosecutor's statement. The prosecutor continued: "You took an oath. Your job is to enforce the laws. You have to follow the laws right now. Officer Perencin was out there doing his job. I'm asking you to do your job. Find these defendants guilty of each and every crime. Officer Perencin did absolutely nothing wrong. He did not deserve to be shot at and try to be killed by that man over there. [¶] Find them guilty and find each and every special allegation true because that is what justice deserves in this case."
After the prosecutor concluded, Garcia's counsel moved for a mistrial, claiming the prosecutor told the jury its "job was to protect Officer Perencin" rather than to determine whether the charges had been proven beyond a reasonable doubt. Counsel for Apolinario and Bernal joined the motion. The prosecutor explained he "misspoke . . . in the heat of the argument" and that the court's instruction "cured the issue." The court denied the mistrial motion.
B. Any Assumed Prosecutorial Misconduct Was Harmless
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] ' "It is, of course, improper [for the prosecutor] to make arguments to the jury that give it the impression that 'emotion may reign over reason,' and to present 'irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.' " ' [Citation.] We consider the assertedly improper remarks in the context of the argument as a whole. [Citation.] 'In conducting [our] inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 894 (Covarrubias).)
Apolinario and Bernal forfeited this claim because they did not object to the alleged misconduct and request an admonition. (Covarrubias, supra, 1 Cal.5th at p. 894.) In any event, the claim fails on the merits. (Ibid.)
" ' "[A]n appeal for sympathy for the victim is out of place during an objective determination of guilt." ' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1342.) Assuming the prosecutor's comment to "protect Officer Perencin" could be construed as an appeal to the jury's sympathy, we conclude "no prejudice resulted" for several reasons. (Id. at p. 1349.) First, this comment was made in a much longer closing argument, where the prosecutor emphasized the jury was to decide "what happened" and to "follow the laws." Second, the court sustained Garcia's objection and admonished the jury, diminishing the prejudice flowing from the assumed misconduct. Third, the court instructed the jury on the prosecutor's burden of proof and not to "let bias, sympathy, prejudice, or public opinion influence [its] decision." Under the circumstances "there was not ' "a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Peau (2015) 236 Cal.App.4th 823, 834.) Finally, even if the prosecutor's comment encouraged "the jury to identify with the victim to an improper degree, [it] did not render the trial fundamentally unfair or otherwise infect the trial with such unfairness as to violate defendants' constitutional rights." (Seumanu, at p. 1345.)
V.
Substantial Evidence Supports Apolinario's
Vehicle Theft Conviction
Apolinario contends his vehicle theft conviction must be reversed because there is insufficient evidence he "aided and abetted the car theft." "Vehicle Code section 10851, subdivision (a) provides that a person is guilty of a crime if he . . . 'drives or takes a vehicle not his . . . own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.' " (People v. Moon (2005) 37 Cal.4th 1, 26.) To establish a violation of that statute, the prosecution must prove "the defendant drove or took a vehicle belonging to another person, without the owner's consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.) "[A]ny person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing" has also violated the statute. (Veh. Code, § 10851, subd. (a).)
On May 24, 2012, Apolinario texted Garcia about "peep[ing]" a "steelo"—a stolen car. The next day, Apolinario texted Garcia about the hit, and asked him to "get shit ready." On May 25, Apolinario agreed to accompany Garcia to Oakland and Bernal indicated he was going to Oakland. Garcia picked Apolinario up at his house. Cell phone mapping showed Garcia's phone moving towards Oakland, where the Saturn was stolen. When Perencin attempted to detain the Saturn in San Bruno, it slowed down and three people—including Apolinario—fled from the car. Shortly thereafter, Apolinario was found in close proximity to where the Saturn crashed. A shaved key was in the Saturn's ignition, and Apolinario's DNA was found on a beverage container in the car. Bernal admitted driving a stolen car from Oakland to San Bruno.
The obvious inference from this evidence is Apolinario was in the stolen Saturn without the owner's consent. Apolinario's flight when pursued by police tends to show he participated in the taking or driving of the vehicle and that he had the specific intent to deprive the owner of possession. Substantial evidence therefore supports the vehicle theft conviction, and Apolinario's alternate view of the evidence does not demonstrate otherwise. (People v. O'Dell, supra, 153 Cal.App.4th at pp. 1577-1578; People v. Hopkins (1963) 214 Cal.App.2d 487, 491 ["possession of a stolen car under suspicious circumstances is sufficient to sustain a conviction of unlawful taking"]; People v. Williams (1968) 264 Cal.App.2d 885, 887-888 [sufficient circumstantial evidence of required intent for a violation of Vehicle Code section 10851].)
VI.
Substantial Evidence Supports Apolinario's Conviction
for Felon in Possession of a Firearm
Apolinario claims insufficient evidence supports his conviction for violating section 29800, subdivision (a)(1), which—as relevant here—prohibits a felon from possessing a firearm. "A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others." (People v. Peña (1999) 74 Cal.App.4th 1078, 1083-1084.)
Substantial evidence supports the conviction. As he fled from police, Apolinario ran in front of the school, where police later found a .38-caliber revolver. Near the elementary school, police also found gloves with Apolinario's DNA. Apolinario had particles consistent with gunshot residue on his face and right hand. Additionally, Delgadillo asked Christian L. to look around the elementary school to see whether defendants had "dropped the guns or threw them away." While circumstantial, the evidence amply supports the conclusion that Apolinario actually or constructively possessed a firearm, and discarded it while being pursued by the police. (People v. Miranda (2011) 192 Cal.App.4th 398, 411 ["sufficient circumstantial evidence" established constructive firearm possession].) We are not persuaded by Apolinario's claim that the low level of gunshot residue on his hands, and the presence of dirt on the gun, establish lack of possession. Where, as here, "the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
VII.
Apolinario's Sentence Enhancement for Prior 3 Must be Reversed
Apolinario challenges the trial court's finding that his prior Texas conviction for "aggravated assault" with a deadly weapon was "a serious felony" under California law.
A. Background
The operative information alleged Apolinario had eight prior convictions, including three convictions in Texas. At a jury trial on the priors, the prosecution argued Apolinario had the following Texas convictions:
(1) a November 28, 2005 conviction for "aggravated assault with a deadly weapon" (Tex. Pen. Code, § 22.02, subd. (a)(2), case No. TX057395J/F-0416034 (Prior 3));
(2) a November 28, 2005 conviction for "deadly conduct" in discharging a firearm at one or more individuals (Tex. Pen. Code, § 22.05, subd. (b)(1), case No. TX057395J/F-0515953 (Prior 4)); and
(3) a November 28, 2005 conviction for "aggravated assault with a deadly weapon" (Tex. Pen. Code, § 22.02, subd. (a)(2), case No. TX057395J/[F-0]515955 (Prior 5)).
The prosecutor introduced a certified California Law Enforcement Telecommunications System (CLETS) record of Apolinario's arrests and convictions. According to the CLETS record, Apolinario pled guilty to, and was sentenced on, Priors 3, 4, and 5 on November 28, 2005. Deputy District Attorney Peter Lynch described the CLETS record and the meaning of the entries in that record. Lynch compared the elements of the Texas offenses to the elements of the California offenses and opined the violations of Texas Penal Code sections 22.02 and 22.05 "would qualify" as a "serious felony" under section 1192.7, subdivision (c) because Apolinario had used "a weapon against another person." The court admitted the CLETS record into evidence.
The jury found the Texas priors true. On the prosecutor's motion, the court struck Priors 4 and 5 pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. At the court trial on the prior convictions, Apolinario argued the prosecution had not established Prior 3 was a serious felony under California law. Apolinario also objected that the CLETS record was hearsay and that it did not "designate exactly what the conviction is for. There's no certified record. There's no charging document. There's no preliminary hearing transcript with regard to the facts." Counsel also noted the absence of "case law with regard to those Texas priors." The court determined the evidence was sufficient to conclude, beyond a reasonable doubt, that Prior 3 "would be a serious felony under California [law]" based on Lynch's testimony, and on a comparison between the Texas Penal Code and California law. The court appears to have "look[ed] at" the 2013 or 2014 version of Texas Penal Code sections 22.02 and 22.05.
At sentencing, the court used Prior 3 as the basis for a five-year sentence enhancement (§ 667, subd. (a)).
B. Prior Convictions from Other Jurisdictions
Under California's Three Strikes law, a defendant's criminal sentence must be increased when the "defendant has been convicted of one or more prior serious or violent felonies, or 'strikes.' " (People v. Saez (2015) 237 Cal.App.4th 1177, 1193.) "Whether a crime qualifies as a serious felony is determined by section 1192.7, subdivision (c), which lists and describes . . . qualifying crimes," (People v. Warner (2006) 39 Cal.4th 548, 552 (Warner)) including "any felony in which the defendant personally uses a firearm," "any felony in which the defendant personally used a dangerous or deadly weapon," and "assault with a deadly weapon, [or] firearm . . . in violation of Section 245" (§ 1192.7, subds. (c)(8), (23) & (31)).
"[F]oreign convictions may qualify as serious felonies, . . . if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must 'include[ ] all of the elements of any serious felony' in California. [Citation.] For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law . . . the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' . . . and (2) must 'include[ ] all of the elements of the particular felony as defined in' section 1192.7(c) . . . ." (Warner, supra, 39 Cal.4th at pp. 552-553, fn. omitted.)
To determine whether an out-of-state conviction contains the elements of the California offense, the trier of fact may consider the "record of the prior conviction as well as the elements of the crime." (People v. Avery (2002) 27 Cal.4th 49, 53.) The record of conviction includes "those record documents reliably reflecting the facts of the offense for which the defendant was convicted." (People v. Reed (1996) 13 Cal.4th 217, 223.) Evidence outside "the record of conviction"—such as a CLETS printout—is admissible "to establish matters other than the nature and circumstances of the conduct underlying a prior conviction." (People v. Martinez (2000) 22 Cal.4th 106, 116, italics added.)
" 'When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court's finding that the prosecution has proven all elements of the enhancement [based on a conviction in another jurisdiction], we must determine whether substantial evidence supports that finding. The test on appeal is . . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.' [Citation.] In making this determination, we review the record in the light most favorable to the trial court's findings." (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.)
C. The Prosecution Did Not Establish Prior 3 is a Serious Felony Under California Law
As discussed above, Prior 3 is Apolinario's conviction for "aggravated assault with a deadly weapon" in violation of Texas Penal Code section 22.02, subdivision (a)(2). Under Texas Penal Code section 22.01 in effect in 2005, an assault occurs if the person: (1) "intentionally, knowingly, or recklessly causes bodily injury to another," or (2) "intentionally or knowingly threatens another with imminent bodily injury," or (3) "intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." (Tex. Pen. Code, § 22.01, subd. (a).) Under Texas Penal Code section 22.02, an aggravated assault occurs when: "the person commits assault . . . and the person [¶] . . . [¶] uses or exhibits a deadly weapon during the commission of the assault." (Tex. Pen. Code, § 22.02, subd. (a)(2).)
The only evidence offered to prove Prior 3 was the CLETS record, which is devoid of information about the conduct underlying that crime—i.e. what the "deadly weapon" was, and how Apolinario "use[d] or exhibit[ed]" that weapon in the commission of the assault. At the jury trial on the priors, Lynch testified the Texas convictions were serious felonies under California law because Apolinario had used "a weapon against another person." Lynch's testimony, however, was based on the CLETS record, which does not disclose the facts of the offense. And the Attorney General does not explain how Lynch's testimony can be considered part of the record of conviction, nor how Lynch's testimony would be admissible to establish the conduct underlying that conviction. (People v. Denard (2015) 242 Cal.App.4th 1012, 1029; see also People v. Roberts (2011) 195 Cal.App.4th 1106, 1128 [evidence outside record of conviction was not admissible to establish the conduct underlying the strike].) There is no support for the Attorney General's claim that the "record shows that Apolinario's actual conduct" in Prior 3 "included knowingly discharging a firearm at . . . other people."
The Attorney General characterizes Prior 3 as "aggravated assault with a firearm" and seems to suggest it is equivalent to assault with a firearm (§ 245, subd. (a)(2)). We are not persuaded. As discussed above, the only information in the CLETS record regarding Prior 3 is that Apolinario was convicted of "aggravated assault with a deadly weapon." On the record before us, there is no indication Prior 3 involved a firearm. That Apolinario was also sentenced in November 2008 for Prior 4 (deadly conduct by discharging a firearm) does not establish Prior 3 involved a firearm. Priors 3 and 4 arose out of different incidents, and the trial court relied on Prior 3—not Prior 4—in imposing the sentence enhancement. --------
Because the CLETS record does not establish any facts underlying Prior 3, the determination of whether it would constitute a serious felony in California can only be made by comparing the elements of Texas Penal Code section 22.02 with California law. The Attorney General claims Prior 3 is "most like" the crime of assault with a deadly weapon (§§ 245, subd. (a)(1), 1192.7, subd. (c)(31) [assault with a deadly weapon or firearm]). The Attorney General, however, does not discuss the elements of the California crime, nor explain how the elements of Prior 3 " 'include[d] all of the elements of the [California] felony.' " (Warner, supra, 39 Cal.4th at p. 553.) The Attorney General's cursory argument is waived. We are not required "to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
The Attorney General's argument also lacks merit. Texas Penal Code section 22.01 and California section 240 define assault differently. In Texas, a person commits an assault by (1) intentionally, knowingly or recklessly causing bodily injury to another, (2) intentionally or knowingly threatening another with imminent bodily injury, or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. (Tex. Pen. Code, § 22.01, subd. (a).) In California, assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The California statute is different from Texas Penal Code section 22.01 because it requires proof of an "attempt" to inflict "violent injury" along with a "present ability" to commit the injury. (§ 240.)
Thus, in California, pointing an unloaded gun at another person with no effort or threat to use it as a bludgeon is not an assault with a deadly weapon because there is no present ability to commit a violent injury on the person. (People v. Sylva (1904) 143 Cal. 62, 63-64; People v. Orr (1974) 43 Cal.App.3d 666, 672.) But in Texas, proof that a firearm is loaded or actually capable of causing death or serious bodily injury is not required. (Tidwell v. State (Tex.App. 2006) 187 S.W.3d 771, 775-776.) Additionally, the Texas aggravated assault statute does not require personal use of a deadly weapon, whereas personal use of a deadly weapon is required for a serious felony under section 1192.7, subdivision (c)(23). (§ 1192.7, subd. (c)(23); Tex. Pen. Code, § 22.02, subd. (a)(2); see Sosa v. State (Tex.App. 2005) 177 S.W.3d 227, 231.)
"If the record does not disclose any of the facts of the offense actually committed, the court will presume the prior conviction was for the least offense punishable under the foreign law." (People v. Mumm (2002) 98 Cal.App.4th 812, 816.) Here, the CLETS record "proved nothing more than the least adjudicated elements" of Prior 3, i.e. that Apolinario exhibited an unspecified "deadly" weapon during the commission of an assault. (Warner, supra, 39 Cal.4th at pp. 557-558.) Exhibiting an unspecified weapon during an assault does not satisfy the California element that the weapon was a deadly weapon under California law, nor that "[w]hen the defendant acted, [he] had the present ability to apply force . . . with a deadly weapon . . . to a person." (CALCRIM No. 875.) Based on the record before us, the court erred in concluding Prior 3 was a serious felony. (People v. Roberts, supra, 195 Cal.App.4th at p. 1133 [Washington conviction for second degree assault did not constitute a strike]; People v. Jenkins (2006) 140 Cal.App.4th 805, 809-810, 813 [Utah robbery convictions did not constitute serious felonies under California law].) It is "therefore necessary to reverse and remand for a retrial" on Prior 3. (People v. Rodriguez, supra, 122 Cal.App.4th at p. 131; People v. Barragan (2004) 32 Cal.4th 236, 239.)
VIII.
Garcia's Case Must Be Remanded to Consider the
Amendment to Section 12022 .53
The court sentenced Garcia to a 29-year prison term, which included 20 years on the enhancement for personally discharging a firearm in the commission of the assault on a peace officer (§ 12022.53, subd. (c)). Garcia contends his case must be remanded so that the court can exercise its newly-granted discretion to decide whether to strike the firearm enhancement.
When the court sentenced Garcia, it had no power to strike the firearm enhancement. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) Under an amendment to section 12022.53, effective January 1, 2018, trial courts "have the power under subdivision (h) of the statute, 'in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.' " (Id. at p. 1090.) The parties agree section 12022.53, subdivision (h), applies to Garcia. (Id. at p. 1090 [amendment to section 12022.53 applies retroactively]; People v. Robbins (2018) 19 Cal.App.5th 660, 679 [same].)
The Attorney General acknowledges section 12022.53, subdivision (h) now "gives trial courts discretion to impose a lesser sentence" but claims remand is unnecessary because the record demonstrates the court would not have stricken the firearm enhancement. We disagree. At sentencing, the prosecutor asked the court to impose the aggravated term on Garcia's assault conviction. The court imposed the midterm, remarking: "I think we can all agree that it is just by sheer luck I think that no one was injured. And by that, I mean that not only includes the police officer, but the child who found the gun. Listening to that testimony was—for me, anyway—very frightening of [sic] what could have happened with that gun. So it is by sheer luck, as I say, nobody was injured." Addressing Garcia, the court continued, "you have limited insight . . . That's my concern. [¶] You have a history here, as [the prosecutor] points out, of violence; and certainly, this is all violence."
The court's comments explain why the court imposed the midterm, but they do not demonstrate the court would have necessarily imposed the additional 20 years on the firearm enhancement. (See People v. McDaniels (22 Cal.App.5th 420, 423.) The comments also distinguish this case from People v. Gutierrez (1996) 48 Cal.App.4th 1894, where the trial court stated "imposing the maximum sentence was appropriate," and "increased [the] sentence beyond what it believed was required by the three strikes law." (Id. at p. 1896.) Here the court imposed the middle term, not the maximum term, and Garcia was not convicted of premeditated murder.
As our Supreme Court has explained in a similar situation, because striking a gun enhancement was not possible at the time of Garcia's sentencing hearing, he "never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion." (People v. Rodriguez (1998) 17 Cal.4th 253, 258.) Garcia is entitled to that opportunity. We express no opinion on how the trial court should exercise its discretion under section 12022.53, subdivision (h), on remand—we conclude only that it is the trial court's function to exercise its discretion in the first instance.
DISPOSITION
As to Apolinario: the trial court's determination that Apolinario's November 28, 2005 conviction for "aggravated assault with a deadly weapon" (Tex. Pen. Code, § 22.02, subd. (a)(2), case No. TX057395J/F-0416034 (Prior 3)) qualified as a serious felony under California law is reversed. The five-year sentence enhancement imposed for Prior 3 pursuant to section 667, subdivision (a)(1) is reversed and the matter is remanded for retrial on Prior 3. (See People v. Rodriguez, supra, 122 Cal.App.4th at p. 138.) If the prosecution elects not to retry Prior 3, then the sentencing enhancement premised on that prior conviction shall be stricken from Apolinario's sentence, and the trial court shall prepare and transmit a modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
As to Bernal: the judgment is affirmed.
As to Garcia: the case is remanded for resentencing consistent with the views expressed in this opinion. (See People v. Woods, supra, 19 Cal.App.5th at p. 1090.) The judgment is otherwise affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.