Opinion
F069690
12-22-2016
THE PEOPLE, Plaintiff and Respondent, v. ERIC ARGUELLO, et al., Defendants and Appellants.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Eric Arguello. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Victor Manuel Zapien. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1407606)
OPINION
APPEAL from judgments of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Eric Arguello. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Victor Manuel Zapien. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Eric Arguello and Victor Zapien appeal from judgments of conviction on two counts of premeditated murder, two counts of premeditated attempted murder, and one count of active participation in a criminal street gang. Arguello was also found guilty of felony vehicular evasion of a peace officer. These convictions, along with true findings on certain firearm enhancement allegations, resulted in prison sentences of 170 years to life plus two years eight months for Arguello and 170 years to life plus two years for Zapien.
Appellants allege that the trial court erred by allowing the prosecution, through its gang expert, to present testimonial hearsay regarding their membership in a criminal street gang. The claim is governed by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which holds that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert's personal knowledge or independently supported by admissible evidence. In light of Sanchez, we agree with appellants on the question of error. However, we are convinced that the outcome would have been the same even without the inadmissible testimony, and thus find no prejudice.
Arguello makes additional claims of instructional error, insufficient evidence as to one of his convictions for attempted murder, cumulative error, and sentencing error with regard to the trial court's failure to impose a stayed sentence for the gang participation offense. Zapien summarily joins in Arguello's arguments to the extent that they are beneficial to him. With respect to these issues, only the claim of sentencing error under Penal Code section 654 has merit. We modify the judgments to bring them into compliance with section 654, and affirm the judgments as modified.
Except where otherwise specified, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On or about August 31, 2009, Christopher Diaz (age 20) and Mark Ochoa (age 19) were shot to death outside of Diaz's residence in northeast Modesto. The killers also shot at a young man named William Harris, but Harris escaped with his life. The incident occurred around midnight, and several neighbors called 911 after being awakened by the sound of gunfire.
Officers Larry Meyer and Daniel Phillips of the Modesto Police Department responded to the reports of a shooting. Their dispatcher advised them of a suspect vehicle described as a red Ford F-150 pickup truck. While driving to the crime scene in his marked police cruiser, Officer Meyer spotted a red, four-door, Ford F-150 containing four occupants. He pursued the truck, and Officer Phillips followed in a separate patrol car.
Officer Meyer got behind the F-150 as it moved eastbound on Floyd Avenue from the intersection with Oakdale Road. The truck accelerated to over 60 miles-per-hour (mph) in a 35 mph zone and ran a stop sign. Officer Meyer activated the lights and siren of his patrol car, but the driver did not pull over. The truck entered a residential neighborhood at Grouse Crossing and made sharp turns at Beacon Hill Lane and Boston Way. As the chase continued down Boston Way, a person seated on the right passenger side of the truck lowered his window and began firing a gun at the pursuing police car. Officer Meyer briefly slowed down and reported over his police radio, "Shots fired, shots fired, he's shooting at us, shots fired."
From Boston Way, the truck turned on Massachusetts Way and then went north on Sunny Park Drive. Officer Meyer caught up with it on Sunny Park Drive as three men were exiting the vehicle. When the patrol car approached them, the person who had stepped out of the right rear passenger door fired more rounds in Officer Meyer's direction. The truck drove away, making a right turn at Suncrest Court, and the three passengers fled on foot.
After entering Suncrest Court, the F-150 parked in a driveway and turned off its lights. Police found Eric Arguello sitting in the driver's seat and took him into custody. An intensive manhunt for Arguello's passengers ended with the arrests of David Ferrel, Kelly Valle, and Victor Zapien.
Arguello, Ferrel, Valle, and Zapien were charged by information with murder of Christopher Diaz and Mark Ochoa (§ 187, subd. (a); counts 1 & 2); attempted murder of Officer Meyer in connection with the shooting on Boston Way (§§ 187, subd. (a), 664, subd. (a); count 3); attempted murder of Officer Meyer in connection with the shooting on Sunny Park Drive (count 4); attempted murder of William Harris (count 5); vehicular evasion of a peace officer (Veh. Code, § 2800.2; count 6 (Arguello only); possession of a firearm by a convicted felon (count 7 (Valle only) & count 8 (Ferrel only)); and active participation in a criminal street gang (§ 186.22, subd. (a); count 9). Counts 1, 2, 3, 4, and 6 included gang enhancement allegations pleaded pursuant to section 186.22, subdivision (b)(1). Counts 1-5 were also alleged to have been committed with deliberation and premeditation, and were subject to firearm enhancements under section 12022.53. In addition, counts 1 and 2 contained special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and gang-related killing (id., subd. (a)(22)).
The defendants were jointly tried before a Stanislaus County jury. Trial commenced on May 7, 2012 and ended on September 28, 2012 with verdicts on the charges against Arguello, Valle, and Zapien. A mistrial was declared as to Ferrel in early September after his trial counsel experienced a medical emergency. Neither Ferrel nor Valle are parties to this appeal.
Prosecution Case
Key witnesses for the prosecution included victim Diaz's mother, Tamie Cox, and his friend, William Harris. Diaz and Ochoa were killed outside of Ms. Cox's home, which is where Diaz resided, and Ms. Cox was present for some of the events leading up to the shooting. She testified to coming out of her house that evening after hearing Ochoa arguing with someone. She found Ochoa speaking with an agitated and visibly intoxicated person whom she identified in court as defendant Valle. Diaz, Harris, and Arguello were also present during the argument between Valle and Ochoa.
Ms. Cox saw Valle yelling at Ochoa, declaring himself to be part of "SPN" and asking "[do] you bang?" She understood this language to be gang jargon. Ochoa identified himself and claimed to be from the "Deep South Side." Valle acted skeptical of this response and "got chest-to-chest" with Ochoa, at which point Ms. Cox intervened and said there would be no fighting on her property. Valle turned to her and said, "Shut up, bitch," which further angered Ochoa. Ms. Cox told Valle to leave, and at the subsequent urging of Arguello, he complied. Arguello and Valle departed in a red truck. Ms. Cox went to bed and was later awakened by the sound of gunshots.
William Harris lived in the same neighborhood as Diaz and had been friends with him for several years. Harris was also acquainted with Arguello and Ochoa, and testified that both of them were Norteno gang members. He believed Ochoa belonged to a Norteno subset known as "South Side Modesto." Harris first met Arguello approximately one month prior to the shooting and had socialized with him on a few occasions. Arguello bragged about being a Norteno and often wore red clothing to signify his membership in the gang. He also had what Harris referred to as "Northerner dots" tattooed on his hands.
Harris, Diaz, and Ochoa were drinking beer with one of Diaz's neighbors on the night of the shooting when Arguello pulled up to Diaz's house in a red Ford F-150 truck. He was accompanied by Valle, who Harris described as being "sloppy" drunk and belligerent. Diaz and Ochoa walked over to speak with Arguello, and Diaz soon began chastising him for bringing such an intoxicated person to his house. Harris did not hear the entire conversation, but understood Diaz was concerned about getting in trouble with his mother if she discovered a group of drunk people in her driveway. Shortly thereafter, Tamie Cox came outside to see what was going on.
According to Harris, Valle looked at Ms. Cox and said, "What's up bitch," in a way that seemed like he was hitting on her. Diaz was offended by the remark and removed his shirt in preparation for a fight. Arguello was laughing at the situation but tried to be diplomatic, telling Diaz, "He's drunk, fool, just whatever ... We'll leave." As they were heading back to the truck, Valle turned his attention to Ochoa and said, "What's up, fool? You bang? You bang?" Ochoa responded, "Hell yeah, fool, South Side Modesto, Norte gang." Valle replied, "I ain't never heard of you, fool. I ain't never seen you. I'm gonna run your name. What's your name?" Ochoa said, "Sharky, fool, run it." Valle pulled out a cell phone, made a call, and appeared to be talking to someone as he and Arguello were leaving. Before they drove off, Valle warned that he would be back.
Arguello and Valle returned later in the evening, this time accompanied by two other people. Arguello parked a few houses down from Diaz's residence before exiting his vehicle. Valle got out from the front passenger seat, and two men emerged from the rear doors dressed in black and wearing bandanas to hide their faces. One of the masked men had a distinctive haircut, which Harris described as a "Mongolian" look, i.e., a shaved head with a ponytail extending out of a patch of hair in the back.
Diaz and Ochoa walked into the street anticipating a brawl. Diaz tapped Harris on the back and said, "Let's bang on these fools right now ... Let's do this." Valle and his masked companions suddenly pulled out guns. Harris testified that Valle and one of the other gunmen were respectively armed with silver- and dark-colored revolvers, but the man with the Mongolian haircut had a semiautomatic pistol with a "banana clip," i.e., an extended or high capacity magazine of ammunition. Harris explained that he got a close look at the pistol because it was eventually pointed at his head. Valle aimed his firearm at Ochoa and demanded that Ochoa, Diaz, and Harris all get down on their knees. The man with the dark-colored revolver held Diaz at gunpoint, while Arguello stood to the side and taunted them, laughing and saying, "Talk shit now bitches, talk shit now."
Harris testified that Valle was the first person to fire his weapon; he shot Ochoa in the chest as Ochoa was backing away from him. The sound of the blast caused the other people to turn their heads, and Harris used that opportunity to shove the man with the Mongolian haircut and run for his life. He ran in a zig-zag pattern, hearing a flurry of gunshots behind him. Harris saw a spark come up from the road as he was running and thus assumed some of the shots were being fired at him. After reaching an adjacent street, he found a hiding spot and stayed there until the assailants drove away.
Police found Diaz lying dead in his driveway, shirtless and on his back. Ochoa's body was located inside the home of one of Diaz's neighbors. The residents of the house testified that Ochoa had come bursting through their door in the middle of the night, bleeding from a gunshot wound and holding a semiautomatic handgun. The firearm in Ochoa's possession was identified as a .40-caliber Glock Model 27 (Glock 27) pistol, and had an empty 15-round magazine attached to it.
Additional firearms were recovered at the location where defendant Ferrel was arrested. Police found him hiding in the backyard of a residence on Hearthstone Lane, positioned approximately 12 to 15 feet away from two handguns: a stainless steel/chrome-colored .357 Smith & Wesson Model 66 revolver and a dark-colored .357 Smith & Wesson Model 27 revolver. The Model 27 contained six spent cartridge casings (i.e., all six rounds in the cylinder had been fired) and the Model 66 contained three live rounds and three spent casings. Investigators also discovered a .40-caliber Glock Model 22 (Glock 22) pistol on the roof of the house. Attached to the Glock 22 was an extended 29-round magazine containing approximately 14 bullets.
Ferrel was recorded discussing guns during telephone calls made from jail. He expressed concern that police had found two "heaters," including "the black Smith & Wes," but was fairly confident they had not located "the other one." The latter statement was presumably in reference to the Glock 22, since he also remarked that his ".40" was on the roof of someone's house.
The jailhouse recordings tended to show consciousness of guilt on the part of Ferrel, Valle, and Zapien. During a conversation with his aunt, Zapien said, "I need a miracle." He also promised not to flee if she pledged her house as collateral for bail, adding, "I just need to get out for a little bit before -- before it's all bad for me. It might even be all bad for me right now ... I fucked up."
Autopsy results showed that Ochoa died from a single gunshot wound to the chest. A ballistics expert who analyzed bullet fragments removed from Ochoa's body testified that certain markings were indicative of the bullet having been fired from one of the Smith & Wesson revolvers. Diaz was struck by seven bullets, five of which were determined to have entered his body from behind. Four bullets, consisting of two different calibers, were recovered at the time of Diaz's autopsy; three were removed from his body and one was found inside of his clothing. The ballistics expert determined that at least two of the bullets removed from Diaz's body were fired from the Model 27 revolver, i.e., the dark-colored one. The expert further opined that the bullet found in Diaz's clothing had most likely been fired from a Glock pistol.
Investigators recovered several .40-caliber shell casings at or near the first crime scene. Additional .40-caliber casings were found on Boston Way and Sunny Park Drive, and one was discovered in the bed of the Ford F-150 truck. Multiple witnesses explained that revolvers do not automatically eject casings (they remain inside of the cylinder until manually removed), hence the prosecution's theory that these casings came from either Ochoa's Glock 27 or the Glock 22 that was used by one or more of the defendants.
The prosecution's ballistics expert matched four .40-caliber shell casings found at the first crime scene to Ochoa's Glock 27. A total of eight .40-caliber shell casings were determined to have been fired from the Glock 22, including two casings recovered along Boston Way, one casing recovered on Sunny Park Drive, and the single casing found in the bed of the truck. Another casing was found approximately two houses up from the location where Diaz and Ochoa were killed, in the direction that Harris had run after the shooting began. Based on the location of the latter casing, the prosecution theorized that the man with the Mongolian ponytail had chased Harris and fired at least one shot at him before he escaped.
The evidence suggested that Diaz and Ochoa were small-time drug dealers, though no direct connection was made between their illicit activities and untimely deaths. Diaz had previously been on friendly terms with Arguello and was apparently acquainted with Zapien to some degree. Text messages retrieved from the parties' cell phones indicated that Zapien had recently contacted Diaz with a proposition to exchange cash, cocaine, or a .9-millimeter handgun for a .45-caliber handgun. Other cell phone evidence indicated that Zapien was involved in gun trafficking, and that Valle had made contact with him at approximately 11:37 p.m. on the night of the shooting. Before contacting Zapien, Valle placed a series of calls to Rafael "Turtle" Avina, who was reputed to be a "shot caller" or leader of the Deep South Side Nortenos.
Although Harris's testimony suggested that Arguello and Valle had initially stopped by to invite Diaz to a party, he allegedly told police that the actual reason for their visit was to purchase drugs.
Photographs and eyewitness testimony established what the defendants looked like at the time of their arrests. This evidence revealed that Zapien was the person who had been described as having the Mongolian-style haircut. Arguello was shown to have tattoos consisting of a single dot on his right hand, four dots on the knuckles of his left hand, and the letters "NSH" on his stomach. Valle's appearance was noteworthy because of a large tattoo of the letter "N" that was shaded in red on the back of his shaved head. Ferrel was arrested wearing an oversized red belt with the number 14 displayed on the buckle, and had tattoos of four dots on his elbow and the numbers 1 and 4 on opposite sides of his arms.
Detective Robert Gumm of the Modesto Police Department testified as the prosecution's gang expert. His testimony provided background information about a prison gang called Nuestra Familia and its street-level operatives, the Nortenos. In his words, "Nuestra Familia controls all Northern California street gang members that are Nortenos." Detective Gumm estimated that there were approximately 4,000 Norteno gang members living in Stanislaus County, with the Modesto area being home to 15-20 Norteno "sets," including the Smyrna Park Nortenos in Ceres, aka "SPN," and the Deep South Side Nortenos, aka "Deep South Side Modesto."
According to the expert, Norteno gang members identify with the color red and the number 14. The number 14 is significant because the 14th letter of the alphabet is N, which to them connotes Nortenos and/or Nuestra Familia. Based in part on his education and experience, which included over 400 hours of "formal gang training" and personal involvement investigating over 1000 gang cases, Detective Gumm testified that the primary activities of the Nortenos include theft offenses and violent crimes such as "assaults, assault with deadly weapons, felony assaults, drive-by shootings, and attempted murder and murder." Although Norteno subsets generally get along with each other, so-called "red on red crime," meaning one Norteno gang member victimizing another, was not uncommon in the Modesto area. Such incidents typically occurred between active gang members and dropouts or inactive Nortenos who were no longer "putting in work" for the gang.
Detective Gumm opined that all four defendants were active participants in the Norteno criminal street gang. His opinion was based on information drawn from multiple sources, including personal knowledge and evidence of the events at issue in the current case. For example, he was present at the time of Valle's arrest and saw the "N" tattoo that "covers the majority of the back of his head." He was familiar with Ferrel from prior criminal investigations. While testifying to the significance of the defendants' tattoos, he said, "with Mr. Ferrel, [] you can see that he is representing the gang just walking behind him with the large one and four [tattooed] down his arms." As for Arguello, the dots tattooed on his hands were symbolic of the number 14, which is "a common sign for the Norteno gang." Zapien had several tattoos, though none were specifically gang-related. However, Detective Gumm recognized the Mongolian ponytail as being "a Norteno haircut."
Over defense objections, Detective Gumm was permitted to discuss and recite hearsay while explaining the basis for his opinions. Much of the challenged testimony related to the detective's claim that Arguello, Ferrel, Valle, and Zapien would each be classified as active Nortenos under a system used by the Modesto Police Department to "validate" gang members. The department relied on a multi-factor test under which a person was deemed to be a gang member if at least two of the factors were established. The criteria were as follows: (1) a history of associating with gang members; (2) statements of admission; (3) wearing colors associated with a particular gang; (4) "possessing physical evidence of a gang," which could include membership rosters or data stored on a cell phone; (5) being identified as a gang member by a "reliable source," such as a parent; (6) having gang-related tattoos; (7) using "words, phrases, or terms that are associated with the gang"; (8) being arrested for a crime that is "consistent with gang activity"; (9) being adjudicated as a gang member; and (10) being classified as a gang member within the jail system.
Relying heavily on "[p]olice reports, contacts from law enforcement, Probation Officer reports, [and] things like that," Detective Gumm determined that Arguello met seven of the ten criteria described above. He summarized eight prior contacts Arguello had allegedly had with police, spanning from an incident in October 2006 to his arrest in August 2009 for the currently charged offenses. On one or more of those occasions, Arguello purportedly admitted to being a member of the North Side Hayward Nortenos (thus explaining the "NSH" tattoo on his stomach); was observed wearing gang colors, having gang tattoos, and associating with known gang members; possessed "physical evidence known to be associated with gangs"; used gang-related words, phrases, or terms; and was arrested for crimes consistent with gang activity. Evidence pertaining to the crimes for which Arguello was being prosecuted was cited as proof of his association with gang members and an arrest for behavior consistent with gang activity.
Detective Gumm provided similar testimony with regard to Valle, Ferrel, and Zapien, asserting that they respectively met seven, six, and five of the ten criteria for validating gang members. His testimony about Zapien contained hearsay from police reports concerning six different incidents, which notably included allegations of violence. Zapien was alleged to have previously stabbed someone with a knife and battered another individual by stomping on their head. The expert also relied upon police reports from the six prior incidents for the conclusion that Zapien had associated with gang members; wore clothing or colors known to be associated with a gang; used gang-related words, phrases, or terms; possessed gang-related items or objects; and was arrested for crimes consistent with gang activity. The events in the current case were cited as further evidence of Zapien's association with gang members and history of being arrested for gang-related offenses.
The expert did not believe the offenses in this case were committed for the benefit of a gang or at the direction of a gang, but was of the opinion that each perpetrator had acted in association with a criminal street gang. He testified that the decedents may have been shot because they disrespected a highly active participant in the Norteno gang (Valle) and were perceived by their killers as being inactive Nortenos or low-level members/associates. This theory was supported by eyewitness testimony that Valle had called Diaz and Ochoa "leyvas," which, according to Detective Gumm, is a slang term that is used in the context of accusing someone of "not being down for the gang or down for putting in work."
Defense Case
Valle testified on his own behalf. He admitted to being an active Norteno gang member affiliated with the Smyrna Park Nortenos subset. He further acknowledged that the red "N" tattooed on the back of his head was intended to signify "Nortenos," even though it depicted the emblem used by the Nebraska Cornhuskers.
On the day of the shooting, Valle started drinking beer at approximately 10:00 a.m. before tagging along with a friend to a birthday party for Arguello's mother. The party was held at a taqueria that was owned by Arguello's family. Valle had never met Arguello before that afternoon, but the two of them developed a friendly rapport as Valle consumed more beer, drank tequila, and ate free food. The tattoos on Arguello's hands signaled that he was a fellow Norteno. Valle explained: "When I seen the four dots, I knew right then. He didn't have to tell me."
The party continued into the night, and at some point Arguello invited Valle to go with him on an errand to buy cigarettes. Valle agreed, and they drove together in a red truck to a nearby gas station. On their way back to the taqueria, Arguello decided to stop at "his friend's house," i.e., the home of Christopher Diaz.
When they arrived at Diaz' residence, Valle introduced himself to Diaz and Ochoa and shook their hands, "trying to be respectful." Ochoa was not welcoming of him and insisted on knowing where he was from. Valle replied that he was from the city of Ceres. Meanwhile, Arguello spoke to Diaz and invited him to his mother's birthday party. Following a brief conversation with Arguello, Diaz went inside of his house. Next, for reasons not explained by Valle's testimony, Diaz came back outside with a gun in his hand and insisted that Arguello and Valle leave immediately. Moments later, Diaz's mother came out of the house and said, "You guys need to leave now. Leave my house now."
Nearly every detail of Valle's account conflicted with the testimony of Tamie Cox and William Harris. In his version of events, there was no yelling, no gang-related conversations, no rude comment made to Diaz's mother, and no chest-to-chest confrontation with Ochoa. When asked to leave, he promptly complied without making any threats to return at a later time.
After leaving Diaz's house, Valle placed a call to Ferrel, but did so only to tell him that he and Arguello were on their way to pick him up and take him to the party at the taqueria. Ferrel did not answer his phone, so Valle called Ferrel's roommate, Zapien. Valle testified that Ferrel and Zapien were also Norteno gang members. He had known Ferrel for several years, as they were both affiliated with the Smyrna Park Nortenos.
Despite the prosecution's cell phone evidence, Valle denied making any calls to Rafael Avina, i.e., the alleged shot caller for the Deep South Side Nortenos. Valle also refuted the implication that he had reached out to Ferrel and/or Zapien to obtain a gun; he testified to being in possession of the silver Smith & Wesson Model 66 revolver during his initial encounter with Ochoa. Being a gang member, he typically carried a gun for protection and had done so that day, concealing the revolver in the waistline of his jeans.
After picking up Ferrel and Zapien at Valle's request, Arguello drove back toward his family's taqueria. As they neared their destination, Valle asked Arguello to take a detour to Diaz's house. Valle initially testified to making the request because he had wanted to "go fight one of those guys." He revised this testimony on cross-examination, claiming that he had wanted to go back only to find out why Ochoa had been so unfriendly toward him, to determine if he had done something wrong, and "just because I didn't want no bad feelings between us."
As they pulled into the neighborhood, Zapien recognized Diaz's house and said, "Oh, my friend lives here. Don't worry about it.... I'm going to take care of it. I'm going to talk to this guy. He's cool. Don't worry." After hearing those assurances, Valle got out of the truck expecting that he and Ochoa "were just going to talk it out." Zapien located Diaz, shook his hand, and began talking to him at the end of his driveway. Seconds later, Valle heard the sound of a gun being "racked" and turned to see Ochoa standing approximately 10 feet away from him with a pistol in his hand. Valle glanced at Diaz again and saw that Diaz was pulling a gun out of his pocket or waistline. When he looked back at Ochoa, Ochoa shot at him and missed. Acting in self-defense, Valle pulled out his revolver and returned fire.
Following the initial exchange of gunshots, Ochoa and Valle continued shooting at each other while moving in different directions. Ochoa darted across the street to a neighbor's house and Valle ran back to Arguello's truck. Valle could hear other guns being fired, but his attention was focused on Ochoa. Consequently, he did not witness the actions of his co-defendants and did not see Diaz get killed. He had no recollection of seeing William Harris at the time of the shooting.
By the time Valle reached the truck, Arguello, Ferrel, and Zapien were already inside the vehicle. The group sped away and soon found themselves being pursued by police. The seating arrangements at that time were as follows: Arguello in the driver's seat, Valle in the front passenger seat, Ferrel behind Valle on the right rear passenger side, and Zapien behind Arguello on the left driver's side.
Valle's testimony described a chaotic scene inside of the truck: "Everybody was just yelling; it was loud in there. Someone's yelling 'stop,' someone's yelling 'go' and 'turn.' It was just all kinds of yelling going on." There was no discussion of shooting at the police car. Valle insinuated that whoever discharged their firearm while the truck was moving had done so as a diversionary tactic. He explained: "[A]s we're driving, as we make one of the turns, I hear -- I hear a gunshot. And when I hear a gunshot, I kind of look and in front of my window I see a gun that's pointing upwards, and that's when I heard that -- that's [the] gunshot I heard right there."
When Arguello finally pulled over, his three passengers exited, ran toward a group of houses, and began climbing over a fence. Valle did not see anyone shoot at police during the course of these events or afterwards. However, as he was climbing the fence, he heard a "big ole' noise" that sounded like someone falling to the ground, and at approximately the same time, a gunshot rang out.
To support the contention that Diaz was armed at the time of the incident, the defense presented testimony from a retained criminalist and firearms expert named Jacobus Swanepoel. Mr. Swanepoel opined that a fragment collected at the crime scene had probably come from a .45-caliber bullet, which was unlikely to have been fired from any of the four guns seized by police. However, he could not rule out the possibility that, as the prosecution's expert believed, the fragment had come from a .40-caliber bullet.
Arguello and Zapien did not testify, but Zapien called Ferrel as a defense witness. The timing of Ferrel's testimony was unusual because a mistrial had already been declared as to him on account of his attorney's illness. Although he faced retrial in the future, Ferrel took the stand and offered his own version of the events.
Ferrel admitted to being a Norteno gang member and testified that his "good friend" Zapien was also a Norteno. Ferrel further acknowledged a prior felony narcotics conviction, which had been adjudicated as a gang-related offense within the meaning of section 186.22, subdivision (b)(1). In terms of his connection to the victims, Ferrel disclosed that he had met Diaz one time prior to his death, in a meeting arranged by Zapien, and had sold Diaz marijuana on that occasion. He had met Ochoa several years earlier, but their lone encounter was brief and unremarkable.
Ferrel was intoxicated on the night of the shooting. He was turning 30 years old at midnight and had spent most of the day drinking with Zapien in anticipation of his birthday. When Arguello and Valle picked him up that evening, Ferrel believed they were taking him to a party. Nevertheless, as "a natural reflex," he armed himself with a .40-caliber Glock pistol equipped with an extended magazine. He also grabbed an extra clip of ammunition, which he placed in one of his pants pockets.
When Arguello pulled into Diaz's neighborhood, Ferrel recognized Diaz's house and confirmed with Zapien that it was the residence of a person to whom he had once sold drugs. He was under the impression that they had arrived at a party, and did not anticipate any violence when he approached the house. Ferrel watched as Zapien engaged someone in conversation at the end of the driveway, but did not realize that person was Diaz.
Ferrel was still looking in Zapien's direction when Ochoa appeared to his left and said, "What's up?" He then heard the racking of a pistol, followed by a gunshot. Next, Ferrel saw the person in the driveway (Diaz) turn his body away from Zapien and begin to pull out a gun. Acting to defend Zapien's life and also to protect himself, Ferrel produced his weapon and fired approximately six shots at Diaz. He then ran back to Arguello's truck and got into the right rear passenger seat. Ferrel did not witness the actions of his co-defendants during the shootings, and specifically denied having any knowledge of Zapien being in possession of a firearm that evening.
Ferrel's testimony was inconsistent with the prosecution's theory that Zapien had used the .40-caliber Glock 22 pistol and was the direct perpetrator of the attempted murders of William Harris and Officer Meyer. The prosecution alleged during closing argument that Ferrel made a strategic decision to claim responsibility for the Glock 22 in hopes of benefitting his co-defendants - the theory being that since he was no longer part of the trial and had been absent from the courtroom for an extended period of time, the jury might disassociate his behavior from that of Arguello, Valle, and Zapien, and be more inclined to return not guilty verdicts on the three counts of attempted murder. It was further argued that Ferrel's claim of having fired all of his shots at Diaz from a particular spot (and at a distance of approximately 35 feet) could not be reconciled with the autopsy findings and the locations where the shell casings from the Glock 22 were recovered. Moreover, Ferrel's story did not account for the casing that was found two houses north of where the decedents were killed, which was the primary piece of evidence in support of count 5 (i.e., the attempted murder of Harris).
Ferrel accepted responsibility for firing the Glock 22 during the police chase, but denied aiming at the police car: "[W]hen the cop got behind us and turned his sirens on, I kind of looked back to see where he was at, and I hear, 'Run. Run. We got to run.' And I'm thinking to myself, 'Damn, I can't run.' I'm fat, you know, I'm a big guy. First thing I was thinking is like I got to give myself some time, get the hell out of here, so I put my hand out the window and shot a couple times in the air." Ferrel also claimed to have accidentally discharged the same weapon later that evening while climbing over a fence. The gun went off when he fell to the ground and landed on his shoulder. He subsequently disposed of the weapon by throwing it onto the roof of a house.
Verdicts and Sentencing
Appellants were convicted of all but one of the substantive offenses with which they were charged. The jury acquitted them on count 4, i.e., the (second) attempted murder of Officer Meyer in the shooting on Sunny Park Drive. The verdicts on the enhancements and special circumstance allegations were mixed and inconsistent. Despite concluding that Arguello and Zapien acted "intentionally, deliberately and with premeditation" in the commission of two first degree murders, the jury returned not true findings on the multiple murder allegations under section 190.2, subdivision (a)(3). Not true findings were made on all gang enhancements alleged pursuant to section 186.22, subdivision (b), as well as on the gang-related special circumstance allegations under section 190.2, subdivision (a)(22). However, appellants were ostensibly found to have violated section 186.22, subdivision (b) for purposes of firearm enhancement liability under section 12022.53, subdivisions (c) and (d).
The necessary circumstances are established if the defendant "has been convicted of more than one offense of murder in the first or second degree." (§ 190.2, subd. (a)(3); People v. Souza (2012) 54 Cal.4th 90, 110, fn. 6 [if an aider and abettor is found to have harbored the intent to kill, "a finding of guilt of two murders, at least one of which is first degree murder, conclusively establishes the truth of the special circumstance...."].)
As relevant to counts 1 and 2, under section 12022.53, subdivision (d), a defendant convicted of a qualifying felony who is found to have personally and intentionally discharged a firearm, proximately causing great bodily injury or death, is subject to an additional prison term of 25 years to life. As relevant to counts 3 and 5, under section 12022.53, subdivision (c), a defendant convicted of a qualifying felony who personally and intentionally discharges a firearm is subject to an additional prison term of 20 years. Notwithstanding the facial requirement of personal use, the statute elsewhere imposes vicarious liability on aiders and abettors if such individuals are found to have committed the qualifying offense in violation of section 186.22, subdivision (b). (§ 12022.53, subd. (e)(1); People v. Garcia (2002) 28 Cal.4th 1166, 1171.)
While the jury may have concluded that Zapien personally and intentionally discharged a firearm in the commission of counts 1, 3, and/or 5, the inconsistent section 186.22, subdivision (b) findings were presumably consequential to him under count 2, and unquestionably dispositive as to Arguello since he was prosecuted only as an aider and abettor. We note that the firearm enhancement allegations appeared on the verdict forms as follows: "We further find that the defendant [was/was not] a principal in the foregoing offense, and that the defendant violated subdivision (b) of Penal Code section 186.22, and that at least one of the principals in the offense personally and intentionally discharge[d] a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death to any person other than an accomplice pursuant to Penal Code Section 12022.53[(c)/(d)] and 12022.53(e)."
Based on these convictions and findings, the trial court imposed the following prison sentences. As to Arguello, 25 years to life for the premeditated first degree murder of Christopher Diaz, plus 25 years to life for the firearm enhancement; an additional consecutive term of 25 years to life for the premeditated first degree murder of Mark Ochoa, plus 25 years to life for the firearm enhancement; an additional consecutive term of 15 years to life for the premeditated attempted murder of Officer Meyer, plus 20 years for the firearm enhancement; an additional consecutive term of 15 years to life for the premeditated attempted murder of William Harris, plus 20 years for the firearm enhancement; an additional consecutive term of 2 years for active participation in a criminal street gang; and an additional consecutive term of eight months for felony evasion of a peace officer (one-third of the middle term). With exception of the felony evasion punishment, which was exclusive to Arguello, Zapien received the same sentence.
DISCUSSION
Sufficiency of the Evidence
Arguello disputes the sufficiency of the evidence supporting his count 3 conviction for the attempted murder of Officer Meyer during the police chase. Proceeding on the assumption that Ferrel was the shooter, he claims the evidence is insufficient to show that he personally harbored an intent to kill. Zapien joins in these arguments, but offers no analysis of the issue.
This claim is subject to a deferential standard of review. We must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Marshall (1997) 15 Cal.4th 1, 34 (Marshall), original italics.) "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." (People v. Combs (2004) 34 Cal.4th 821, 849.)
The elements of attempted murder are the specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Houston (2012) 54 Cal.4th 1186, 1217.) "A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (Marshall, supra, 15 Cal.4th at p. 40.) Thus, to be guilty of attempted murder as an aider and abettor, a defendant must share the direct perpetrator's intent to kill. (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen). " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (Id. at p. 1055.)
In Nguyen, supra, the California Supreme Court found sufficient evidence of aiding and abetting to uphold a conviction of attempted murder against a defendant who was seated behind the actual perpetrator during the commission of a drive-by shooting. (Nguyen, supra, 61 Cal.4th at pp. 1027, 1053-1056.) The following language of the opinion is instructive: " 'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (Id. at p. 1054.) "Although defendant's ' "mere presence alone at the scene of the crime is not sufficient to make [him] a participant," ' his presence in the car ' "may be [a] circumstance[] that can be considered by the jury with the other evidence in passing on his guilt or innocence." ' " (Id. at p. 1055.)
Arguello's presence at the scene was uncontroverted. Unlike the defendant in Nguyen, who was merely a passenger, Arguello was actually driving the car when the shooting occurred. His continued acts of vehicular evasion during and after the shooting, including his flight once the shooter had exited the vehicle, is probative of whether he shared the perpetrator's mens rea at the time of the offense. He may not have been well acquainted with the shooter, but the two of them were shown to be fellow Norteno gang members who, according to the jury, had just acted in concert in the commission of two murders and one attempted murder. Instead of immediately disassociating himself from the killers, Arguello served as their getaway driver. He was necessarily aware of the direct perpetrator's willingness to use lethal force, and the consequences of being captured by police provided a strong motive for him to promote, encourage, or instigate the attempt to kill the pursuing officer. (See People v. Smith (2005) 37 Cal.4th 733, 741-742 [evidence of motive is probative of an intent to kill].)
As in Nguyen, the sufficiency of the evidence is a close issue with respect to Arguello. (Nguyen, supra, 61 Cal.4th at p. 1056.) However, "[a] reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Viewing the record in the light most favorable to the judgment and considering the factors of presence, companionship, and conduct before, during, and after the commission of the attempted murder of Officer Meyer, we conclude the evidence permits a reasonable inference of guilt as an aider and abettor.
The sufficiency of the evidence is more obvious with respect to Zapien. Because Harris identified him as the person in possession of the Glock 22 at the time of the initial shooting, the ballistics evidence connecting that gun to the shells recovered along Boston Way permitted a reasonable inference that Zapien was the actual shooter in the count 3 offense. Even if the jury believed it was Ferrel who fired the shots from the truck, there was ample evidence to support a theory of aiding and abetting liability. Harris's testimony placed the dark-colored, six-shot revolver in Ferrel's possession at the time of the murders, and that weapon was later found with six expended shell casings in its cylinder (which is actually consistent with Ferrel's testimony that he fired at least six shots at Diaz). With no bullets left in his revolver, Ferrel would have needed to use a different gun to shoot at Officer Meyer. If jurors believed Ferrel and Zapien were respectively armed with the Model 27 revolver and Glock 22 pistol prior to fleeing the initial crime scene, it was reasonable for them to conclude that Ferrel obtained the pistol from Zapien during the police chase. The act of furnishing the pistol to Ferrel can reasonably be construed as aiding, encouraging, and/or instigating the commission of the target offense, and the surrounding circumstances permit the inference that he shared Ferrel's intent to kill.
Alleged Instructional Errors
Use of CALCRIM No. 3472
The jury was instructed on perfect self-defense, imperfect self-defense, and the right to use deadly force in defense of others. Arguello does not dispute the propriety of those instructions, but argues for the first time on appeal that the trial court erred by also including CALCRIM No. 3472 ["Right to Self-Defense: May Not Be Contrived"]. That instruction provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Arguello contends that the use of CALCRIM No. 3472 deprived him and his co-defendants of their constitutional right to present affirmative defenses and receive a fair trial. He explains: "The crux of the problem is that [the instruction] unambiguously told the jury that if the defendants provoked a fight or quarrel with the intent to create an excuse to use any force, they had no right to self-defense or defense of another, even when a gun was fired at them." Arguello relies on an opinion by a divided panel of Division Three of the Fourth District Court of Appeal, People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), which he cites for the proposition that CALCRIM No. 3472 is an "erroneous statement of the law."
We note at the outset that Ramirez does not condemn CALCRIM No. 3472 as a legally erroneous instruction. The majority opinion recognizes that "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances" (Ramirez, supra, 233 Cal.App.4th at p. 947), but concludes its use was prejudicially misleading to jurors in that particular case. As explained by the Second District in People v. Eulian (2016) 247 Cal.App.4th 1324, it is more accurate to say that "CALCRIM No. 3472 is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a non-deadly confrontation and the victim responds with deadly force." (Id. at p. 1334.)
Claims of instructional error are reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) If error is found under state law, it is assessed for prejudice using the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), the question being whether appellant has demonstrated a reasonable probability that he would have obtained a more favorable result had the error not occurred. (People v. Moore (2011) 51 Cal.4th 1104, 1130, 1140; People v. Canizalez (2011) 197 Cal.App.4th 832, 858.) Heightened scrutiny is applied when evaluating errors that infringe upon a party's due process rights, e.g., the use of jury instructions that relieve the prosecution of its burden to prove each element of the charged offense beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 490-491; People v. Larsen (2012) 205 Cal.App.4th 810, 824.) Such errors are considered prejudicial unless the reviewing court determines "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Stated another way, the Chapman standard requires the People to show "beyond a reasonable doubt that the result would have been the same notwithstanding the error." (People v. Dungo (2012) 55 Cal.4th 608, 647.) As we will explain, it is unnecessary to decide whether the use of CALCRIM No. 3472 was erroneous or implicated appellants' constitutional rights because the alleged error was harmless by any standard of review.
The Ramirez case arose from a fistfight between two defendant gang members and several individuals from a rival gang. There was conflicting evidence as to which of the parties were the initial aggressors. The defendants had been outnumbered, and fatally shot one of the other combatants just before the fight ended. At trial, the shooter claimed to have fired in self-defense and in defense of his co-defendant after the victim approached them while holding "an object that 'looked like a gun.' " (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) The jury was instructed with CALCRIM No. 3472, which, as in this case, made no express allowance "for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence." (Id. at p. 945.)
The majority in Ramirez found it was prejudicial to instruct the jury with an unmodified version of CALCRIM No. 3472, but its conclusion was largely based on the prosecutor's "repeated misstatement of the law" during closing argument. (Ramirez, supra, 233 Cal.App.4th at pp. 945, 953.) The prosecutor cited the pattern instruction for the proposition that all acts of contrived self-defense preclude a finding of justifiable homicide or lesser included offenses of murder. The jury was told this principle applied even if it believed the defendants had only intended to provoke a fistfight, and regardless of whether the decedent brandished a firearm prior to being shot. (Id. at pp. 943, 946.) The prosecutor "summarized her argument using CALCRIM No. 3472 categorically, as follows: 'You can't go looking for trouble and then complain about the trouble that you find. That's what that instruction says.' " (Id. at p. 948.) In the defense closing, the shooter's attorney argued that his client's affirmative defenses remained viable if the facts were as he had claimed, i.e., that the decedent suddenly and unexpectedly escalated the fistfight to a gunfight. (Id. at p. 946.) On rebuttal, the prosecutor accused the defense of failing to recognize the significance of CALCRIM No. 3472: " '[W]ith all due respect to [defense counsel], I completely disagree with how he read to you the law or explained to you the law. And that's the beauty of it. It's on paper. Okay. And you cannot have the principle of self-defense - you cannot have the principle to mitigate from murder to voluntary manslaughter, heat of passion or sudden quarrel when you are the one who created that circumstance to begin with.' " (Id. at p. 948.)
In finding prejudice, the majority in Ramirez reasoned that a trial court may not "cast upon the parties its responsibility to instruct the jury accurately." (Ramirez, at p. 949.) Given the conflicting interpretations of CALCRIM No. 3472 conveyed to jurors during closing arguments, it was incumbent upon the trial court to ensure the instructions provided a complete and accurate statement of the law as applied to the facts and the parties' theories of the case. (Id. at pp. 948-949.) By failing to modify the language of CALCRIM No. 3472, the court effectively endorsed the prosecution's misstatement of the law and "erroneously directed the jury to conclude a person has no right of self-defense against an adversary's deadly attack, even if the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary." (Id. at pp. 945, 947, 953.)
The matter before us is distinguishable from Ramirez in several respects. Although the prosecutor below referenced the principle set forth in CALCRIM No. 3472, it was hardly the cornerstone of her argument. On the contrary, she repeatedly urged the jury to acquit the defendants if it believed they had acted in self-defense (albeit with the implication that the stories told by Valle and Ferrel were obviously false). Moreover, the prosecutor's lone reference to the contrived self-defense instruction was made in the context of arguing that defendants went to Diaz's house intending to kill him and Ochoa, and thus did not misstate the law. The defense attorneys subsequently argued their respective theories of the case, none of which involved manufacturing an excuse to use non-deadly force, and the prosecutor made no reference to contrived self-defense on rebuttal.
The reporter's transcript reads: "[W]hy doesn't self-defense work? Because it's a perfect defense. Remember what I told you, if you find that's true, then you sign[] those not guilty verdicts on Counts I through V and you say, [']thank you, defendants, thank you for being part of this trial. We're out of here.['] Not a problem. And if that's what you believe, then that's what justice is. [¶] It's not available to those who seek to quarrel with the intent to create [an] excuse to use force. It's not available to those who seek to quarrel. It's not available to those who intend to create an excuse to use force. They were seeking a [quarrel]. There was no other reason to go to Chris's house. They were going to a party, remember? It was David Ferrel's birthday. The only, only reason to go to Chris's house was to take care of business, was to kill Chris and Mark for disrespecting Valle because they were not going to put up with that."
The reversal in Ramirez was not only based on the use of CALCRIM No. 3472, but also the exacerbating effect of a modification to the standard language of CALCRIM No. 571. At the prosecution's request, the trial court edited the imperfect self-defense instruction to read: " 'The principle of imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the invitation of a physical assault or the commission of a felony) has created circumstances under which his adversary's attack or pursuit is legally justified.' " (Ramirez, at p. 952.) These circumstances were not present in this case, as the CALCRIM No. 571 instruction that was used did not contain the same or even similar language.
If there was any error in instructing the jury with CALCRIM No. 3472, the record discloses no indication of resulting prejudice. The jury in Ramirez circled CALCRIM No. 3472 in its written packet of instructions, which the appellate court apparently viewed as being indicative of the instruction's impact on the verdict. (Ramirez, at p. 947.) Here, the jurors submitted four requests during deliberations, including two questions asking for clarification or guidance, but none of them pertained to the topic of self-defense. It stands to reason that after enduring a nearly five-month trial and deliberating for multiple days, the jurors would have at least inquired about the application of CALCRIM No. 3472 if that single-sentence instruction had moved them to convict appellants of premeditated first degree murder despite a belief that the defendants acted to protect themselves or others against imminent deadly force. In the same vein, case law recognizes that a jury's finding of premeditation and deliberation indicates "a complete rejection of the evidence on which defendant relied to establish self-defense." (People v. Crandell (1988) 46 Cal.3d 833, 874 [finding no prejudice in the use of allegedly erroneous self-defense instructions, including an instruction on contrived self-defense (id. at p. 872)].) Appellants were also found guilty of attempting to murder William Harris, who by all accounts was an unarmed non-aggressor, which further demonstrates the jurors' lack of belief in the theories of self-defense and defense of others. It is evident beyond a reasonable doubt that the alleged instructional error did not contribute to the jury's verdicts.
Instruction on Withdrawal Defense
The trial court, in its use of CALCRIM No. 401 ["Aiding and Abetting: Intended Crimes"], included optional language on withdrawal as a defense to aiding and abetting liability. In another claim raised for the first time on appeal, Arguello complains of insufficient evidence to support the withdrawal instruction and alleges he was prejudiced by the likelihood of juror confusion. Respondent essentially concedes that the evidence did not warrant an explanation of withdrawal as an affirmative defense, but argues the issue has been forfeited by Arguello's failure to object below. In the interest of judicial economy, we will forgo any discussion of forfeiture or ineffective assistance of counsel (which Arguello alleges in the alternative), and dispose of this claim based on the clear lack of prejudice.
The instruction provides, in pertinent part: "A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things: [¶] 1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime. [¶] AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory."
"Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67 (Cross).) Such errors are evaluated for prejudice under the Watson standard. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (Cross, supra, 45 Cal.4th at pp. 67-68.)
Respondent notes the jury was advised under CALCRIM No. 200 that some of the instructions might not apply, and that it should follow the instructions applicable to the facts as it found them. This is a valid argument against a finding of prejudice. In the absence of evidence to the contrary, it is assumed the jury ignored any irrelevant instructions. (People v. Holloway (2004) 33 Cal.4th 96, 152-153; People v. Frandsen (2011) 196 Cal.App.4th 266, 278.)
Arguello claims the jury likely interpreted CALCRIM No. 401 as implying that even if he never shared the wrongful intent of his co-defendants, he "was liable for the crimes if [he] did not notify his companions of his intention to withdraw from the crimes and do everything in his power to prevent their commission." This strikes us as a counterintuitive interpretation, especially because the instruction said, "[T]he fact that a person is present at the scene of a crime or fails to prevent a crime does not, by itself, make him or her an aider and abettor." In any event, there is no evidence of prejudice. For the reasons highlighted in our previous discussion, including the findings of premeditation and intent to kill, we perceive no likelihood that a more favorable result would have occurred but for the jury's alleged confusion over the instruction on withdrawal. Arguello's theory amounts to fanciful speculation, which is not enough to satisfy his burden on appeal. (People v. Blakeley (2000) 23 Cal.4th 82, 94 [the Watson standard "requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial."]; see People v. Gaulden (1974) 36 Cal.App.3d 942, 951-952.)
Admission of Hearsay Testimony
As previously mentioned, the prosecution's gang expert, Detective Gumm, was permitted to relate hearsay evidence while explaining the basis for his opinions regarding the defendants' membership in a criminal street gang and the gang-related nature of the charged offenses. Appellants claim the admission of this evidence violated their constitutional right of confrontation as interpreted by Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and deprived them of the right to a fair trial as guaranteed by the due process clause of the United States Constitution. Zapien argues that the error had a prejudicial impact on his conviction of active participation in a criminal street gang (count 9) and the jury's true findings on the section 12022.53 firearm enhancements under counts 1, 2, 3, and 5. Arguello alleges that the error requires reversal of all convictions and findings except for count 6, i.e., his conviction of felony vehicular evasion.
Applicable Law
As used in section 186.22, a "criminal street gang" refers to "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated [in subdivision (e) of the statute], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The crimes listed in section 186.22, subdivision (e) include the commission or attempted commission of unlawful homicide, discharging or permitting the discharge of a firearm from a motor vehicle within the meaning of section 26100, and possession of a firearm by a convicted felon within the meaning of section 29800. (§ 186.22, subd. (e)(3), (6), (31); People v. Loeun (1997) 17 Cal.4th 1, 8 (Loeun).) To establish the requisite "pattern of criminal activity," a prosecutor may "rely on evidence of the defendant's commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member." (Loeun, supra, 17 Cal.4th at p. 10.) The commission of two acts violating the same penal provision (e.g., two murders) will satisfy the statutory requirement of "two or more" predicate offenses if the crimes are shown to have been committed by two or more persons. (Id., fn. 4.)
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a) (hereafter section 186.22(a)), and also includes enhancement provisions, which are found in subdivision (b) (hereafter section 186.22(b)). (People v. Elizalde (2015) 61 Cal.4th 523, 538-539.) "The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) Active participation can be proven by evidence of gang tattoos, self-admission of gang membership, contacts with a criminal street gang and/or its members, gang-related contacts with police, the display of gang colors, and being in the company of a known gang member while committing a charged offense. (People v. Castenada (2000) 23 Cal.4th 743, 752-753; People v. Williams (2009) 170 Cal.App.4th 587, 626 (Williams); People v. Garcia (2007) 153 Cal.App.4th 1499, 1511 (Garcia).) A defendant's knowledge that the gang's members engage in a pattern of criminal activity is often inferable from the same evidence that shows his or her active participation in the gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 and fn. 14.)
The enhancement provisions of section 186.22 apply when an offense is committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b).) "Unlike the substantive offense, the enhancement does not require proof of participation in a gang. It is further distinguished from the substantive offense by applying only to gang-related offenses and by requiring the defendant to act with the specific intent to promote, further, or assist any criminal conduct by gang members." (Rodriguez, supra, 55 Cal.4th at p. 1130, fn. 5.) Although gang membership is not an element of the substantive offense or the enhancement, proof that a defendant belonged to a particular gang goes a long way toward establishing that a crime was committed with a gang-related intent. (See Sanchez, supra, 63 Cal.4th at pp. 698-699 [discussing the mens rea element of the enhancement; Rodriguez, supra, 55 Cal.4th at p. 1130 ["A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22(a)."].)
"In cases where a gang enhancement is alleged or a substantive gang crime is charged, expert testimony regarding the 'culture, habits, and psychology of gangs' is generally permissible because these subjects are ' "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' " (Garcia, supra, 153 Cal.App.4th at p. 1512; accord, People v. Vang (2011) 52 Cal.4th 1038, 1050 and fn. 5.) The issue raised by appellants is the extent to which a gang expert may recite and rely upon hearsay when presenting his or her opinions to a jury. More specifically, Arguello and Zapien dispute the admissibility Detective Gumm's testimony that was derived from police reports and other hearsay sources.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal Constitution and made applicable to the states through the Fourteenth Amendment, ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher (1996) 13 Cal.4th 451, 455.) In Crawford, supra, the United States Supreme Court held that the confrontation clause bars the admission of out-of-court testimonial hearsay statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (541 U.S. at p. 59.)
Until earlier this year, expert witnesses could testify about out-of-court statements upon which they had relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620 (Gardeley); People v. Miller (2014) 231 Cal.App.4th 1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements within an expert's "basis" testimony to be compliant with the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
In Sanchez, supra, the California Supreme Court held that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the Sixth Amendment right of confrontation. (63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Id. at p. 686, fn. omitted.)
"The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) The admissibility of an expert's basis testimony now depends on whether it includes "case-specific facts," meaning "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.) If it does, the next question is whether such facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony." (Id. at p. 689.) Information contained in a police report is generally viewed as testimonial hearsay because police reports "relate hearsay information gathered during an official investigation of a completed crime." (Id. at p. 694.)
The Sanchez case involved a lone defendant who was arrested for possession of heroin, methamphetamine, and a loaded firearm. (63 Cal.4th at p. 671.) He was convicted by a jury on charges that included active participation in a criminal street gang under section 186.22(a), and was found to have committed his crimes for the benefit of a gang within the meaning of section 186.22(b). (Id. at pp. 671, 673.) The Fourth District reversed his conviction on the substantive gang offense in light of Rodriguez, supra, 55 Cal.4th at p. 1134, which holds that active participation in a criminal street gang requires the commission of an underlying felony with at least one other gang member. (Sanchez, supra, 63 Cal.4th at p. 673, fn. 5.) The California Supreme Court granted review of the defendant's Crawford claim, which had been rejected by the appellate court. The high court found prejudice in the admission of hearsay testimony by the prosecution's gang expert that was based on the contents of police reports and other hearsay sources. The hearsay, which was outside of the expert's personal knowledge and not corroborated by any admissible evidence, was essentially the only proof of the defendant's membership in a particular gang and contained allegations of his involvement in prior incidents that tended to show he was dealing drugs for the benefit of his gang. (Id. at pp. 672-673.) Excluding the hearsay, the only evidence to support the section 186.22(b) enhancement was the defendant's arrest at a location within "gang territory." (Id. at p. 699.) The gang findings were reversed on the basis of Crawford error, but the judgment was affirmed as to the remaining convictions. (Id. at p. 700.)
Analysis
Detective Gumm's testimony concerning general background information about the Norteno criminal street gang was admissible, as were his opinions that were based on facts of his own personal knowledge and/or independently supported by admissible evidence. (Sanchez, supra, 63 Cal.4th at pp. 675-677, 684-686.) The expert's testimony regarding the defendants' alleged prior contacts with police, including the information contained in police reports, was inadmissible hearsay and infringed upon appellants' constitutional right of confrontation. (Id. at pp. 694-697.) The dispositive issue is whether appellants suffered prejudice as a result of the improperly admitted evidence.
The Chapman standard applies when an expert witness offers testimonial hearsay to explain the basis for his or her opinions without independent proof of the matter asserted in the hearsay. (Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The same standard applies to the claim that erroneous admission of evidence deprived appellants of their right to a fair trial. (People v. Albarran (2007) 149 Cal.App.4th 214, 227, 229.) The test is whether it can be shown, beyond a reasonable doubt, that the errors did not contribute to the verdict. We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Beginning with the jury's verdict on the section 186.22(a) count, we agree with respondent that Arguello's and Zapien's status as active gang members was an inevitable conclusion, even without the improper hearsay. William Harris testified to Arguello's self-admissions of gang membership in the weeks leading up to the shootings, and said that Arguello's tattoos and penchant for red clothing were gang-related. Detective Gumm provided admissible testimony regarding the significance of the color red and the number 14 in Norteno gang culture, which gave important context to Harris's testimony and several other pieces of evidence (e.g., the fact that Arguello was driving a red truck). The gang expert further explained the significance of Arguello's tattoos, and his testimony was corroborated by that of defendant Valle. Valle, a self-admitted Norteno, testified that he knew Arguello was a fellow gang member as soon as he saw the tattoos on his hands. When considered in light of all the surrounding circumstances, including Arguello's involvement in the charged offenses, this evidence was enough to remove any doubt about his active participation in a gang.
Zapien's own defense witness, David Ferrel, testified to his knowledge that Zapien was a Norteno gang member. A self-admitted Norteno himself, Ferrel was in a position to know that information since he and Zapien were close friends and roommates. Co-defendant Valle also testified to Zapien's membership in the Nortenos. In addition, Detective Gumm permissibly opined that Zapien's Mongolian-style haircut was indicative of a Norteno affiliation. Zapien's active participation was further demonstrated by the evidence of his involvement in the charged offenses, which included numerous predicate gang crimes committed in concert with two self-admitted gang members. In summary, there was overwhelming evidence of appellants' guilt on count 9 independent of the gang expert's hearsay testimony, which defeats the claim of prejudice.
Turning to the firearm enhancements, Arguello and Zapien both reference the jury's not true findings on the separate section 186.22(b) allegations, but fail to explain how the inherently inconsistent gang findings within the section 12022.53 verdicts (see fn. 5, supra) could be attributable to Detective Gumm's hearsay testimony. In some instances, the inconsistent findings appear on the same pages of the verdict forms. These discrepancies can only be explained as the product of lenity, mistake, or compromise, none of which are grounds for reversal. (United States v. Powell (1984) 469 U.S. 57, 65; People v. Avila (2006) 38 Cal.4th 491, 600-601; People v. Lewis (2001) 25 Cal.4th 610, 656.) The manner in which the verdict forms were drafted was probably a contributing factor. Regardless, given the attendant circumstances, we have no doubt that the enhancement findings would have been the same with or without the inadmissible hearsay.
Lastly, we address Arguello's contention that the hearsay evidence concerning prior gang activity so inflamed the passions of the jury that it became unfairly prejudiced against him, which affected the verdicts on all counts. It is true that "admission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams (1997) 16 Cal.4th 153, 193.) However, when evidence of gang activity or membership is important to the issues of motive and intent, it can be introduced despite its prejudicial nature. (People v. Martinez (2003) 113 Cal.App.4th 400, 413; see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."].) Arguello ignores the fact that gang evidence permeated the entirety of this case, beginning with the testimony of Tamie Cox and ending with the testimony of the final defense witness, David Ferrel.
The victims' gang ties are another mitigating factor. (Cf. People v. Sandoval (1992) 4 Cal.4th 155, 173 ["The inflammatory effect of defendant's gang membership ... was neutralized by the fact that the victims were also gang members."].) According to multiple witnesses, Ochoa admitted to being a Norteno and was armed with a handgun at the time of his death. He was also portrayed as a drug dealer. With regard to Diaz, his mother testified that he associated with Nortenos, and more or less conceded that her other son, Diaz's brother, was a Norteno gang member. The jury knew that Diaz was wearing a red belt with the letter "N" on it when he was killed, and autopsy results showed his use of cocaine within hours of the shooting. It was obvious that none of the parties were strangers to criminal activity or the gang lifestyle.
Arguello complains in particular about Detective Gumm's references to a police report of a 2008 incident in which he was alleged to have been present when a group of Nortenos shot and killed a man at a nightclub. He argues this evidence, combined with hearsay testimony concerning his co-defendants' alleged prior gang activities, made him appear to be connected to "weapon-carrying, violence-prone Nortenos" and "associated with homicidal Nortenos." His position is unpersuasive since the evidence of his involvement in the charged offenses conveyed the exact same impressions, but with greater force. Arguello's theory of unfair guilt-by-association also overlooks the independent, admissible evidence of his co-defendants' gang membership and history of criminal behavior. Ferrel and Valle both admitted to having prior felony convictions and testified to regularly carrying guns. The prosecution's cell phone evidence showed Zapien's recent involvement in the trafficking of narcotics and firearms. In addition, Zapien's own attorney elicited testimony from Tamie Cox that Diaz had been in possession of a news article about Zapien, which apparently reported that he was wanted by police on suspicion of murder or attempted murder.
The verdicts in favor of Arguello and Zapien further dispel the notion of unfair prejudice. The jury acquitted them of attempted murder on count 4, rejected section 186.22(b) enhancement allegations on counts 1, 2, 3, and 5, and returned not true findings on the special circumstance allegations under section 190.2, subdivisions (a)(3) and (a)(22). These outcomes weigh against a finding of reversible error, suggesting instead that the jury "did not accept the gang evidence and prior crimes evidence uncritically." (Williams, supra, 170 Cal.App.4th at p. 613.) For all of the reasons discussed, we conclude the erroneous admission of hearsay during Detective Gumm's testimony was harmless beyond a reasonable doubt.
Cumulative Error
Appellants seek reversal on grounds of the cumulative effect of all errors alleged on appeal. Under the "cumulative error" doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Based on our review of the record as a whole, we conclude that the errors alleged were collectively harmless.
Applicability of Section 654
Arguello assigns error to the trial court's imposition of a consecutive two-year prison sentence for his conviction on count 9. The claim is based on People v. Mesa (2012) 54 Cal.4th 191 (Mesa), which holds that section 654 prohibits separate punishment for a violation of section 186.22(a) when the only evidence of active gang participation is the commission of other currently charged offenses for which the defendant has been convicted. (Mesa, at pp. 199-200.) Zapien summarily joins in this argument, and the Attorney General concedes the issue as to both parties. We accept the concession and modify the judgments accordingly. The abstracts of judgment shall be amended to reflect that the sentences imposed on count 9 are stayed pursuant to section 654.
Additional Errors in the Abstracts of Judgment
The abstracts of judgment currently indicate that appellants received consecutive enhanced terms of "20 years to life" on counts 3 and 5 pursuant to section 12022.53, subdivisions (c) and (e). Those statutory provisions only provide for consecutive determinate terms of 20 years, which is what the trial court imposed at the time of sentencing. We order that the correct sentence be reflected in the amended abstracts. (People v. Mitchell (2001) 26 Cal.4th 181, 187 [appellate court may correct clerical errors in the abstract of judgment on its own motion].)
DISPOSITION
The judgment against Eric Arguello is modified to stay the sentence imposed for his conviction on count 9 in accordance with section 654. The judgment against Victor Zapien is also modified to stay the sentence imposed for his conviction on count 9 in accordance with section 654. As so modified, and in all other respects, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment reflecting the specified modifications and forward them to the Department of Corrections and Rehabilitation. The amended abstracts should also reflect the trial court's imposition of determinate 20-year enhancement terms on counts 3 and 5 pursuant to section 12022.53, subdivisions (c) and (e).
/s/_________
GOMES, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SMITH, J.