Opinion
B295327
07-09-2020
THE PEOPLE, Plaintiff and Respondent, v. WELDON BEDFORD, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA451647) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Affirmed in part, reversed in part, and remanded with directions. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Evidence presented at trial demonstrated that on October 30, 2015, defendant and appellant Weldon Bedford helped his fellow gang member Anthony Campbell murder Cedric Horne in territory claimed by a rival gang. Specifically, appellant and Campbell, members of the 53 Avalon Gangster Crips, were driving in appellant's truck south on Menlo Avenue in territory claimed by the 65 Menlo Gangster Crips. Appellant turned right onto West 68th Street, driving west toward Vermont Avenue. Cedric Horne was standing at 943 West 68th Street (approximately 175 feet east of Vermont), texting on his phone. Appellant drove past Horne, turned right on Vermont Avenue, then parked just north of West 68th. He exited his truck and walked back toward the corner, where he would have had a clear view of Horne. Appellant then returned to his truck and drove around the block (north on Vermont, east on West 66th Street, then south on Menlo and west on West 68th again). This time, appellant stopped somewhere near Horne, and Campbell got out and shot Horne seven times with a nine-millimeter handgun. Campbell re-entered the truck, and appellant sped away. Horne died later that night.
After a jury trial, appellant was convicted of second degree murder. The jury also found true the allegations that the murder was committed with a firearm and for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. After appellant waived his right to a jury trial on the issue whether he had sustained a prior conviction, the court found that appellant admitted to previously having been convicted of assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (Section 245(a)(1)). Including applicable enhancements under sections 1170.12 and 667, the court imposed a total sentence of 60 years to life.
All further undesignated statutory references are to the Penal Code.
In this appeal, appellant makes five arguments: (1) the evidence was insufficient to support a finding that he knew Campbell was going to shoot Horne, which finding was necessary to support his conviction under an aiding and abetting theory; (2) the court improperly permitted two police officers to testify about the basis of the feud between appellant's gang (the Avalons) and the gang that controlled the territory where Horne was shot (the Menlos) because the testimony lacked foundation, was case-specific hearsay, and was testimonial hearsay; (3) the court abused its discretion and denied appellant due process and effective representation of counsel by refusing his counsel's request to defer testimony about a nine-millimeter gun-cleaning kit found in his truck one month after the shooting after counsel said she was unprepared to examine the witness about the kit; (4) prior to sentencing, appellant did not knowingly admit he was convicted of assault with a deadly weapon, only that he was convicted in 1999 under Section 245(a)(1), which, at the time, made criminal both assault with a deadly weapon and assault by any means of force likely to produce great bodily injury; and (5) remand to the trial court is appropriate to permit it to exercise its discretion to strike the five-year enhancement under section 667, subdivision (a)(1), because the law giving the court such discretion (Sen. Bill No. 1393) went into effect only two days before the sentencing hearing, and nothing in the record demonstrates the court was aware of its newly awarded discretion.
Assault with a deadly weapon qualifies as a strike; assault by any means of force likely to produce great bodily injury does not.
We conclude: (1) substantial evidence supported the finding that appellant knew Campbell intended to shoot Horne; (2) the court did not err in admitting the officers' testimony regarding the basis of the feud between and Avalons and the Menlos, and had we found error, we would deem it harmless; (3) the court did not abuse its discretion in refusing to defer the testimony regarding the gun-cleaning kit; (4) appellant did not knowingly admit he was convicted of assault with a deadly weapon, and we must therefore remand for the People to prove the conviction or for appellant to specifically admit it; and (5) because Senate Bill No. 1393 had been in effect for only two days prior to the sentencing hearing, and the record is silent as to whether the court was aware of its discretion to strike the five-year enhancement, we remand and direct the trial court to explicitly exercise its discretion if appellant is proven to have been convicted of assault with a deadly weapon or admits such conviction.
STATEMENT OF RELEVANT FACTS
A. The Murder of Cedric Horne
Cedric Horne was working as a landscaper. On October 30, 2015, his girlfriend Nicole Perkins accompanied him to work. After completing other landscaping jobs, they arrived at 943 West 68th Street around 5:20 to 5:30 p.m., where they met Horne's boss (who had driven his own car). This location was in territory claimed by the 65 Menlo Gangster Crips.
Horne asked Perkins to go get gas, telling her his landscaping job was not going to take long. Perkins stayed at the location for about 10 minutes before leaving, and was gone for 15 to 20 minutes. During that time, Horne and his boss mowed the lawn. They finished their work, and Horne's boss left, leaving Horne at the site.
Some time after Horne's boss departed and before Perkins returned, Horne was shot seven times with a nine-millimeter handgun. Two of the shots proved fatal. At trial, Detective Refugio Garza testified that the casings from the bullets fired at Horne were found 160 to 175 feet from the corner of Vermont and West 68th. He also testified that the evidence suggested Horne collapsed next to where a bullet casing was eventually found (suggesting Horne was standing somewhere between 160 and 175 feet from the corner of Vermont and West 68th when he was shot).
B. Appellant Is Arrested and Interviewed
On November 7, 2016, appellant was arrested and brought in for questioning by Detectives Garza and Matthew Casalicchio. Appellant eventually admitted that he drove the Chevrolet Avalanche truck used in the shooting, but asserted he had no idea the shooter -- whom he later identified as Andrew Campbell -- was going to shoot Horne. Appellant claimed he and Campbell and two other friends were headed to a marijuana dispensary on Florence Avenue, slightly west of Vermont. He was taking side streets to avoid the traffic on Florence when Campbell suddenly told him to stop the truck. Appellant did so, and Campbell exited, shot Horne, and got back in the truck; appellant sped off. Appellant claimed he did not know Campbell was carrying a gun.
Appellant stated that he had originally owned the Avalanche truck, but later sold it to a Doris Johnson, and registered the truck in her name. He admitted he still drove the truck after the sale, and eventually took it back.
C. Appellant Is Convicted of Second Degree Murder
1. The Information
On August 10, 2017, the People filed an information, alleging that appellant murdered Horne in violation of section 187, subdivision (a), that the murder was committed with a firearm within the meaning of section 12022.53, subdivision (d), and for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C). The information further alleged that on September 30, 1999, he was convicted of a "serious and/or violent felony," Section 245(a)(1), which would subject him to sentence enhancements under sections 1170.12 and 667, subdivision (a)(1). The information did not allege appellant was convicted of assault with a deadly weapon.
2. The Trial
A jury trial began in November 2018. Thirteen witnesses testified for the People. Appellant proffered no affirmative defense. The portions of the witnesses' testimony relevant to the issues on appeal are summarized below:
(a) Testimony Relating to Appellant's Knowledge of Campbell's Intent to Shoot Horne
(i) Appellant's Avalanche
After obtaining surveillance camera video from various locations on the streets surrounding the crime scene (from locations on Vermont Avenue, West 66th Street, and Menlo Avenue), Detective Casalicchio spent days examining the videos, and established the following sequence of events:
A black Chevrolet Avalanche truck was traveling south on Menlo, and turned right (west) on West 68th, toward Vermont. It then turned right (north) on Vermont, and parked just north of West 68th. Appellant exited from the driver's seat, walked toward the rear of the vehicle, and a minute later, re-entered the Avalanche. The vehicle proceeded north on Vermont, and turned right (east) onto West 66th Street. The vehicle was next seen travelling south on Menlo Avenue again, where it stopped and somebody got out. The person exited from the rear passenger door, walked toward the back of the truck where its cargo bays were, then got back in. The truck again made a right onto West 68th. All of this driving was done at a normal rate of speed. The truck was again seen turning right onto Vermont Avenue from West 68th, and then right again onto West 66th, only now the truck was speeding.
A videotaped interview of appellant, conducted by Detectives Garza and Casalicchio, was played for the jury. As discussed above, appellant admitted that he was driving the Avalanche truck, but claimed that he, Campbell, and two other friends were headed to a marijuana dispensary on Florence Avenue, and that the shooting came as a complete surprise to him.
Florence Avenue was south of West 68th; a driver going to Florence Avenue while traveling west on West 68th would have turned left (south) on Vermont, not right.
Detective Garza testified at trial that he had gone to the corner of Vermont and West 68th where the video surveillance showed appellant to have exited the truck. From that corner, Detective Garza testified he had a clear and direct view to where Horne was shot.
(ii) Evidence of Appellant's Membership in the Avalons
Appellant admitted to police several times that he was a member of the Avalons. Officer Lopez had encountered appellant approximately 10 times at South Park, a known hangout for the Avalons, and appellant was usually sitting with other Avalon members. Appellant also had tattoos indicating his membership. Up until the day appellant was arrested, Los Angeles Police Department Officer Jonathan Sanchez frequently saw appellant "congregating and socializing with other 53 Avalon Gangster Crips." While appellant had at times denied being an active member of the Avalons, gang members often denied membership because they knew any criminal charges against them would be enhanced due to gang membership. Officer Sanchez also frequently saw appellant hanging out at South Park with other Avalons between October 30, 2015, and the time of his arrest.
Appellant admitted to taking part in a "discipline" action after the shooting occurred. Within a gang, a "discipline" action occurs when a gang's older members decide it should be dispensed. Discipline usually takes the form of a fight or a "beat down." At trial, the prosecution's gang expert testified he had never heard of a situation in which discipline in a gang was handled by members outside of the gang. Such a thing "just wouldn't happen" and would constitute disrespect to the gang, requiring retaliation. Appellant claimed during his interview with Detectives Garza and Casalicchio that after the shooting, "we brought [Campbell] to the park and beat his ass bad."
Appellant was also aware of the feuds that the Avalons had with other gangs. When shown a picture of Rashard Randle (an Avalon gang member killed on September 12, 2015), appellant stated Randle "got killed because of the funeral" and opined "[t]hat shit [that] happened at the funeral was totally disrespectful. You don't shoot people at funerals."
As discussed below, the funeral refers to an incident the month before Horne's killing when the Menlos held a funeral in the Avalons' territory and a shootout broke out between the gangs, resulting in the death of a Menlos member. Two Avalons (Randle and another member) were killed shortly thereafter.
Appellant also expressed solidarity with Campbell. In December 2016, Los Angeles Police Department detectives showed Campbell the portion of the videotaped interview with appellant where he identified Campbell as the shooter. They did not show the video to any other person associated with the Avalons. After watching the video, Campbell called Nuoye Clemmons (also known as "LN"). Eleven days later, a call was recorded between appellant and an unidentified male. The caller first said to appellant, "remember a while back, a year ago, nigga, young nigga was talking shit and thought he couldn't be told nothing. Nigga knocked him out BAM BAM real quick." The male caller later referred to this individual as "[t]hat fool that got knocked out in the park that day for not listening." The caller informed appellant that this person had told "LN" that appellant had identified him as the shooter. Appellant said the allegation was "fucked up" because this person was "my boy" and someone he would "go to war with." Appellant, who was 39 years old at the time, also called this person "[t]he kid." Officer Sanchez, a gang expert, opined at trial that in a gang, it is typical that a younger member does the killing, and an older member rides along to validate the killing.
Detective Casalicchio testified it was common for gang members to speak in code in jailhouse calls, because voice prompts during the call continually remind the callers that the call is being recorded. The callers "speak in some sort of code that they would understand or [don't] say things directly; [they] use indirect terms."
(iii) Nine-millimeter Gun-cleaning Kit
One month after Horne's murder, the Los Angeles Police Department searched Appellant's Avalanche truck and found several items, including a kit for cleaning the barrel of a nine-millimeter gun. There were three individuals in the car when it was stopped: appellant, Cedric Thompson, and Kemaar Smith. Appellant, Thompson, and Smith all admitted to being members of the Avalons. Police did not attempt to determine who owned the cleaning kit.
(b) Testimony Relating to Origins of the Feud Between the Avalons and the Menlos
Officer Maillet testified that the 67 Neighborhood Crips and the 65 Menlo Gangster Crips were "two different gangs with a very strong alliance." He then testified that there was a feud between the 67 Neighborhoods and the Menlos on one side, and the Avalons on the other. However, when he started to testify about the origins of the feud, appellant objected the testimony lacked foundation. The court then asked Officer Maillet a series of questions regarding the basis of his knowledge:
"The Court: I'm letting him testify as a gang expert. What's the basis for your expertise? You go out there all the time, you're in the neighborhood, you're talking principally to 67
Neighborhood Crip members and 65 Menlos; is that what you're doing?
The Witness: Yes, sir.
The Court: And your job as a police officer is to gather intelligence, information, for what purpose?
The Witness: To identify gang crimes, gang trends, who their allies are, who their enemies are and who they're feuding with.
The Court: This is what the Los Angeles Police Department tries to do to monitor what's going on in the different communities and what's involved -- what is going on with the different gangs in those communities; is that correct?
The Witness: Yes, sir.
The Court: And you base the information on principally what people tell you, and that includes members of the gang, the gangs that you're looking at, it includes others in the community as well; is that correct?
The Witness: Yes, sir.
The Court: And that would include citizens that live there. I mean, it could be rumor, hearsay. There are a lot of things that you try to distill out the information from; correct?
The Witness: Yes, I base my intelligence off of information I got from gang members, their families, victims, witnesses, rival gang members.
The Court: But this is essentially what you've been told, it's not being testified to under oath. This is just -- in terms of when people tell you things, they're not under oath, are they?
The Witness: No.
The Court: They're just giving you information and you're trying to monitor what's going on?
The Witness: Yes, sir.
The Court: And that's the basis on which you're telling us some of the things today?
The Witness: Yes, sir.
The Court: I'll accept it on that basis. Let's go ahead.
Officer Maillet then testified that in 2015, an "OG" -- someone who has been in a gang for a while -- from the 67 Neighborhoods died, and the funeral was to be held in territory claimed by the Avalons. In order for members of the 67 Neighborhoods and Menlos to enter territory claimed by the Avalons, they needed to obtain a "pass." An older member of the Avalons issued such a pass, but this information was not passed on to the younger members. During the funeral on September 2, 2015, a shootout between the gangs occurred, resulting in someone's death and an ongoing feud. Officer Maillet also confirmed that 943 West 68th Street was in Menlo territory.
Officer Sanchez also testified as an expert about the funeral and recounted other details, such as that the person killed on the day of the funeral was a Menlo. A day or two later, a high-ranking member of the Avalons was killed. Later, another member of the Avalons, Rashard Randle, was also killed. Things then "quieted off for a few weeks." Appellant did not object to this testimony on the basis of either lack of foundation or hearsay.
Later, Officer Sanchez testified that when "a rival gang goes into another rival gang's territory with the meaning of shooting somebody, it's because in their minds they want to eliminate a soldier basically from that other rival gang. That gives them power. That decreases membership of that gang making them smaller, basically, and gives them power." He went on to testify that the entire community -- not just the rival gang members -- discuss the shooting and "that gives that rival gang power for them to operate within that neighborhood." On cross-examination, he agreed that "any shooting . . . by one gang member in another rival gang's territory . . . benefits the shooter's gang."
(c) Testimony Relating to the Discovery of the Nine-millimeter Gun-cleaning Kit
Prior to the start of the afternoon session on the first day of testimony, out of the presence of the jury, the prosecutor alerted the court that he would be calling Officer Jorge Munoz to discuss a "cleaning kit [found in appellant's truck] for a 9 millimeter weapon, which is the murder weapon in this case, a 9 millimeter." The parties discussed how to introduce the fact of the search to the jury (eventually agreeing to stipulate that it was a "lawful search"), but appellant raised no issues about the cleaning kit.
The prosecutor then called Doctor Ajay Panchal, the coroner, who testified about Horne's wounds, and discussed which of the seven shots were fatal. Officer Munoz was called after Dr. Panchal, and testified that he had been on patrol on an unspecified afternoon in November 2015, near South Park. Appellant's counsel then interrupted the questioning to ask for a sidebar. There, counsel asked that the evidence of the cleaning kit "not be presented to the jury because I haven't had time to prepare for that." Counsel admitted she had a picture of the cleaning kit, but stated she did not know it "was going to be part of the evidence." The court responded, "I mean, I would think it comes in. I mean, you've had the picture. You could have asked for these things in the picture. So I'll allow it." Officer Munoz then identified a picture of items removed from appellant's truck, acknowledging that he did not determine "who was responsible for these items."
Detective Casalicchio was called and, without objection, identified one of the objects in the photograph as a cleaning kit for a nine-millimeter gun, the type of gun used to murder Horne. On cross-examination, he admitted he did not know who owned the kit. After Detective Casalicchio testified, appellant made no request to strike the testimony. Similarly, appellant voiced no objections to the admission of the picture of the items found in his truck.
3. The Verdict , Admission of the Prior , and Sentencing
The jury convicted appellant of second degree murder in violation of section 187, subdivision (a); it acquitted him of first degree murder. The jury also found true the allegations that the murder was committed with a firearm within the meaning of section 12022.53, subdivisions (d) and (e)(1), and for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C).
Prior to the jury verdict, appellant had agreed that should the jury find him guilty, he would waive his right to a jury trial on the prior conviction. Nearly two months later, on January 3, 2019, just before sentencing, the court held a "priors trial," and informed appellant, "One of the issues is you do have that prior conviction for assault with a deadly weapon back on September 30th of 1999, here in Los Angeles county, and that's what -- the first thing I want to resolve today is are you going to admit that you did suffer a conviction on September 30th of 1999, in case BA187731?" The court then gave a short summary of what would occur if appellant did not admit the conviction and then asked him again, "Do you want to admit that you're the person that did suffer a conviction for a violation of 245(a)(1), assault with a deadly weapon, back [o]n September 30th of '99, and that it was in that case here in Los Angeles county, 187731? I mean, that did happen, didn't it?"
As noted, the information referred to a 1999 conviction under Section 245(a)(1). It made no mention of assault with a deadly weapon.
Appellant responded, "Can I clarify what the weapon was? Is there clarification of what the weapon is?" The court informed appellant the type of weapon was irrelevant, and again asked, "I mean, are you -- did you suffer a conviction?" Appellant responded, "Yes." The court then asked appellant's counsel to confirm that she "had a chance to investigate this" and asked if she agreed that appellant "did so suffer a conviction," to which she responded, "yes, your honor." The court then said, "So I think that's where we go." The court did not advise appellant of his privilege against self-incrimination, his right to confront witnesses, or the penal consequences of his admission.
After hearing victim impact statements, the court sentenced appellant to 60 years to life: 15 years to life for the murder conviction, doubled to 30 years under section 1170.12, subdivision (c)(1), for the previous strike, another 25 years to life for the section 12022.53 enhancement, and finally another five years for the section 667, subdivision (a)(1), enhancement. At no time did anyone discuss the court's newly granted discretion to decline to impose the five-year enhancement provided for by section 667. Appellant timely appealed.
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition." (People v. Jones (2019) 32 Cal.App.5th 267, 272.) The statute became effective two days before appellant's sentencing.
DISCUSSION
A. Substantial Evidence Supports the Finding That Appellant Knew Campbell Intended to Shoot Horne
"'[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.'" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) "Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense." (In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Appellant argues the evidence was insufficient to support a finding, beyond a reasonable doubt, that he knew Campbell was going to murder Horne. We disagree.
1. Standard of Review
"'When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Elliott (2012) 53 Cal.4th 535, 585 [137 Cal.Rptr.3d 59, 269 P.3d 494] (Elliott).) Our review must '"presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence."' (People v. Manibusan (2013) 58 Cal.4th 40, 87 [165 Cal.Rptr.3d 1, 314 P.3d 1].) Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might '"'be reasonably reconciled with the defendant's innocence.'"' (Id. at p. 92; see People v. Maury (2003) 30 Cal.4th 342, 403 [133 Cal.Rptr.2d 561, 68 P.3d 1].) The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Towler (1982) 31 Cal.3d 105, 117-118 [181 Cal.Rptr. 391, 641 P.2d 1253].)" (People v. Gomez (2018) 6 Cal.5th 243, 278.) "Reversal on this ground [sufficiency of the evidence] is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
2. Substantial Evidence Supports the Finding of Knowledge
A reasonable trier of fact could have found beyond a reasonable doubt that appellant knew Campbell intended to shoot Horne. Video evidence presented at trial showed appellant driving past Horne on West 68th, turning right onto Vermont, and parking his truck just north of West 68th. Appellant then exited the truck and walked back toward West 68th where he would have had a clear view of Horne, who was standing no more than 175 feet away. Appellant returned to his truck, circled the block, and stopped the truck on Menlo, just north of West 68th. Video showed someone -- presumably Campbell -- exiting the truck and moving toward its rear, where cargo holds were located. After this person re-entered the truck, appellant turned right onto West 68th and stopped for a third time, at which point Campbell exited and shot Horne seven times. Campbell returned to the truck, and appellant sped away.
Evidence also was presented that appellant was an active member of the Avalons, who were feuding with the Menlos. Appellant was aware of the feud, and it is undisputed that Horne was shot while in territory claimed by the Menlos. One of the People's gang experts testified that when a gang member shoots someone in a rival gang's territory, it increases the power of the perpetrator's gang, and benefits that gang. He also testified that when gang members kill, it is common for a younger member to do the actual killing, and an older member to ride along to validate the killing. In a jailhouse call after his arrest, the 39-year-old appellant referred to Campbell as a "kid" and "my boy" and someone he would "go to war with."
From this evidence the jury could reasonably have concluded that appellant parked on Vermont and walked back toward West 68th to take a closer look at Horne and the surrounding area in order to determine whether there was an opportunity to shoot him. The jury also could reasonably have concluded that appellant's circling the block served no purpose other than to put Campbell in a location where he could shoot Horne. These two reasonable conclusions in turn support the finding that appellant knew Campbell intended to shoot Horne.
We find People v. Nguyen (2015) 61 Cal.4th 1015 instructive. There, "[t]he car in which defendant was riding passed [the victim]'s car, waited in a parking lot, and then pulled out to pursue the other car. Defendant stared back at the occupants of [the victim]'s car as one car passed the other. A few blocks later, [the shooter] opened fire from the front seat of the car in which defendant was riding. Several days after the shooting, defendant visited [an individual] who had been riding in [the victim]'s car, and asked 'What's up with the cops?' Considering this evidence in the context of the ongoing gang war between the [appellant's gang] and [the victim's gang], as well as the Asian gang practices described by [the gang expert], the jury could have inferred that defendant knew of [the shooter]'s intent to kill, shared that intent, and aided [the shooter] by spotting potential targets." (Id. at 1055.) The facts in the instant case more strongly support a finding of knowledge than those found sufficient in Nguyen: not only was appellant riding with Campbell, he was the driver who stopped the truck, enabling Campbell to commit the shooting, and he sped off once Campbell returned to the vehicle. It was also appellant who, prior to the shooting, exited the truck at a location where he had a clear view of Horne, before circling the block and coming to a halt at the spot where the shooting occurred. Appellant's attempts to distinguish Nguyen by noting that the defendant there was in the "immediate presence" of the shooter when he shot the victim is unpersuasive. Nothing in Nguyen suggests the court based its decision on the fact that the shooter opened fire from the front seat of the car, as opposed to exiting the car first.
In re Jose D. (1990) 219 Cal.App.3d 582 is also instructive. There the defendant was convicted as an aider and abettor when: (a) while driving, he and his passengers yelled out their gang affiliations at two girls, who denied being part of any gang; (b) the defendant followed the girls home in his car; and (c) the defendant parked his car and someone in the passenger seat shot a person standing in front of the girls' home. (Id. at 584.) The Court of Appeal rejected the defendant's argument that the evidence was insufficient to support the verdict: "The record contains sufficient evidence that [the defendant] drove the car on the sidewalk as he was following the girls and deliberately maneuvered the car within three feet of them as [the shooter] pointed the gun at them. [The defendant] parked the car in front of the house as [the shooter] aimed the gun and shot [the victim]. This supports the conclusion that he acted with the requisite knowledge and intent as an aider and abettor in each of the three offenses." (Id. at 585.) While appellant contends the facts of Jose D. "lack any similarity," we disagree. The record demonstrates that after passing Horne once while driving, appellant drove around the block and, like the Jose D. defendant, deliberately maneuvered the truck to a location where Campbell could shoot Horne.
Appellant cites People v. Hill (1946) 77 Cal.App.2d 287, in which the defendant appealed his robbery conviction, arguing insufficient evidence. (Id. at 288.) The defendant in Hill drove two men to a café that the men subsequently robbed; defendant claimed to be unaware at the time of why they were going to the café. (Id. at 290.) Because there was no testimony that defendant knew of the robbery plans beforehand, "[t]he only possible support for his conviction must therefore be found in reasonable inferences deducible from the testimony and the circumstances. The incriminating circumstance was appellant's driving the men to the cafe and waiting in his automobile while they visited the place." (Id. at 292.) The appellate court reversed defendant's conviction, finding "evidence of his mere presence without showing his preconcert with the actors is insufficient as proof of guilt." (Id. at 294.) Here, in contrast, there is ample evidence of appellant's "preconcert" with Campbell: appellant himself parked his truck on Vermont after first driving by Horne's location, and proceeded to exit the truck and walk to the corner where he would have had a clear view of Horne. He then returned to his truck and circled the block. After permitting someone -- presumably Campbell -- to exit the truck to visit the truck's cargo holds, appellant turned back onto the street where Horne was standing, and stopped where Campbell could shoot Horne. After the murder was completed, appellant waited for Campbell to re-enter the truck, then sped off. Hill is inapposite.
In the face of this case law, appellant makes several arguments. We address each in turn. First, appellant points out that the video evidence does not actually show him looking down West 68th after he parked on Vermont, and asserts there "could be any number of things he was doing" other than observing Horne. He further argues that had he been looking at Horne, the latter likely would have seen him. But in his videotaped interview, appellant himself explained that Horne was "standing next to a car[,] texting [on his phone]." If Horne was texting, it is reasonable to infer appellant could have seen him from the corner of the street without Horne's noticing him.
Even had Horne noticed appellant, it would have been reasonable for the jury to conclude that Horne would not necessarily have felt threatened by a person looking down the street in his direction.
Second, appellant argues it is unreasonable to infer his knowledge of Campbell's intent to murder Horne because appellant was driving his own easily identifiable truck, which he would not have done had he intended to commit a murder. While a gang expert acknowledged that gang members often steal cars before committing a murder, it does not follow that gang members never drive their own cars to commit murder. (See, e.g., People v. Anthony (2019) 32 Cal.App.5th 1102, 1106, 1112 [four gang members rode in "gold Cadillac" registered to one of them; one gang member subsequently exited vehicle and shot victim 17 times].)
Third, appellant argues it was speculative to conclude that he knew Campbell had a gun from the facts that: (a) Campbell exited the truck before appellant's final turn onto West 68th and moved toward the rear of the truck, where the cargo holds were; and (b) a nine-millimeter gun-cleaning kit was found in the truck one month after the murder. But this was not the only evidence before the jury: the jury was also presented with the facts that appellant parked on Vermont, walked back toward West 68th, circled the block, and then stopped the truck, allowing Campbell to exit and shoot Horne. Regardless of the effect of each of these facts considered in isolation, considering all the evidence, the jury could reasonably have concluded that appellant knew Campbell intended to shoot Horne before he did so.
Fourth, appellant argues that though there was evidence he was still an active Avalon gang member, there was no evidence he "was knowingly participating in a retaliatory murder, which was what Det. Sanchez offered as the motive for this crime." Preliminarily, "participating in a retaliatory murder" is not an element that must be proven to establish liability for aiding and abetting. In any case, appellant was aware of the feud between the Avalons and the Menlos. He told Detectives Garza and Casalicchio that fellow Avalon member Randle "got killed because of the funeral," and it is undisputed that Horne's shooting occurred in territory claimed by the Menlos. A reasonable trier of fact could have concluded that appellant was an active gang member helping to shoot someone in territory controlled by the gang with which his gang was feuding. If any motive were necessary, this sufficed.
Finally, appellant points out that "Horne was not from a rival gang, his family was related to appellant's own gang," and "Campbell was disciplined after Horne was shot." Appellant makes no explicit argument regarding these facts, and none of them precluded the jury from relying on the evidence presented to conclude appellant was complicit in Horne's shooting. There was no evidence appellant (or Campbell) recognized Horne prior to the shooting, and the only evidence of why the "discipline" occurred was that Campbell "was talking shit and thought he couldn't be told nothing" and was "not listening." The jury could reasonably have concluded Campbell's discipline was unrelated to the shooting of Horne, or at least was not due to disapproval of the shooting.
B. The Trial Court Did Not Err by Admitting Testimony About the Origins of the Feud
Officer Maillet testified without objection that there was a feud between the Avalons on one side, and the 67 Neighborhood Crips and the Menlos on the other side. However, once he began to relay the background of how the feud began -- the shootings that took place at the funeral and thereafter -- appellant objected that the testimony lacked foundation. In response, the court asserted that Officer Maillet was testifying as a gang expert, questioned him about the source of his information, and overruled the objection. Later, without objection, Officer Sanchez testified to similar facts.
Appellant argues testimony from both officers on this subject was erroneously admitted on several grounds: (1) the foundation objection should have been sustained, because Officer Maillet lacked personal knowledge of the funeral and the shootings that occurred at and after the funeral; (2) the testimony was based on rumor, and thus was inadmissible; and (3) the testimony was case-specific, testimonial hearsay which is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36. He also argues that his trial counsel's failure to object to the testimony on the basis of hearsay constituted ineffective assistance of counsel. Finally, he argues the admission of the testimony was not harmless error because "supplying a motive for the crime [was] essential for conviction." The People argue appellant forfeited the hearsay argument. As detailed below, we find: (1) the court properly overruled the foundation objection; (2) appellant fails to demonstrate the testimony was based on rumor; (3) appellant did not forfeit his argument that the testimony was inadmissible hearsay; (4) the testimony was background information, not case-specific, testimonial hearsay; and (5) even if admitting the testimony was erroneous, the error was harmless.
Accordingly, we do not address whether the failure of counsel to object on the grounds of hearsay constituted ineffective assistance of counsel.
1. The Court Did Not Err in Overruling the Foundation Objection
Appellant argues his foundation objection should have been sustained because "no one with personal knowledge testified that a Menlos was killed at the funeral, the killing was attributable to an Avalons, and that this led to the murder of [two Avalons] by Menlos, which Horne's murder was purportedly to avenge. [¶] Instead, two gang officers who were not even part of their respective divisions at the time testified to these 'facts.'"
Appellant is mistaken. Both officers testified that they had no personal knowledge of the funeral and shootings, but that others had told them about the incidents. Thus, the subject of their testimony was not the incidents themselves, but what others had told them. Appellant does not argue that the officers lacked personal knowledge of statements they heard. His foundation objection was without merit.
The parties disagree on whether appellant has forfeited his argument that the officers' testimony lacked foundation because he failed to object to Officer Sanchez's testimony. We find no forfeiture. "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (People v. Hill (1998) 17 Cal.4th 800, 820; see also People v. McKinnon (2011) 52 Cal. 4th 610, 654 [no forfeiture for failing to object to second officer's testimony on grounds raised and rejected during first officer's testimony].) Given the court's response to appellant's objection to Officer Maillet's testimony, any objections to Officer Sanchez's testimony would have been equally unsuccessful.
2. Appellant Fails to Demonstrate the Challenged Testimony Was Based on Rumor
Appellant argues the court should have excluded Officer Maillet's testimony about the funeral because the officer testified his knowledge was based on rumor, which is unreliable, and "[e]xpert testimony that depends upon information furnished by others must be excluded where the information supplied is unreliable." Appellant mischaracterizes Officer Maillet's testimony.
After appellant asserted a foundation objection to Officer Maillet's testimony, the court asked Officer Maillet a series of questions to establish the basis for his knowledge. Part of that line of questioning included: "And [the people who give you information] would include citizens that live [in the community]. I mean, it could be rumor, hearsay. There are a lot of things that you try to distill out the information from; correct?" Officer Maillet responded affirmatively. But nothing in the record demonstrates the specific evidence appellant challenges was based on rumor. "On appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
3. Appellant Did Not Forfeit His Argument That the Testimony Was Inadmissible Hearsay
"[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]" (In re Seaton (2004) 34 Cal.4th 193, 198.) One of the reasons for this rule is that "'"[i]n the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them."'" (Ibid.) "To consider on appeal a defendant's claims of error that were not objected to at trial 'would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."'" (Ibid.)
It is undisputed that appellant did not expressly object to the testimony at issue here on the ground of hearsay. However, we agree with the People that "the record shows that the trial court understood defense counsel's foundation objection to Officer Maillet's testimony as a hearsay and confrontation challenge." The People nevertheless contend appellant forfeited the hearsay argument because, on cross-examination, appellant's counsel "asked further clarifying questions regarding the sources for the officer's testimony" and "[t]he absence of any further objection supports the reasonable inference that defense counsel was satisfied that Officer Maillet's testimony did not violate state evidentiary law or the federal confrontation clause." We are unconvinced. The record gives no indication that the court's overruling of appellant's objection was without prejudice to his ability to renew it later. As the court had already understood and overruled appellant's implied hearsay and confrontation challenge, he was not required to repeat his objection. The cases the People cite are inapposite. (See, e.g., People v. Mills (2010) 48 Cal.4th 158, 170 [defendant forfeited right to argue court erred by not giving jury instruction because court had denied request without prejudice, but stated it "would consider the matter should counsel file additional written argument[;] the court was entitled to assume that in the absence of any renewed briefing, counsel had abandoned the motion. This assumption would have been confirmed when counsel made no later objection"].)
4. The Challenged Testimony Was Not Case-Specific , Testimonial Hearsay
(a) The Officers' Testimony Was Not Case-Specific Hearsay
The testimony about the basis of the Avalons' feud with the Menlos was not case-specific hearsay because it consisted of historical facts related to the Avalons, as opposed to testimony about people and events in the case being tried. "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise. '[T]he common law recognized that experts frequently acquired their knowledge from hearsay, and that "to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on . . . impossible standards." Thus, the common law accepted that an expert's general knowledge often came from inadmissible evidence.' [Citations.] . . . As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Sanchez, supra, 63 Cal.4th at 676.)
"By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at 676.) "An expert may . . . testify about more generalized information to help jurors understand the significance of . . . case-specific facts." (Ibid.) "The distinction between case-specific facts and background information thus is crucial—the former may be excluded as hearsay, the latter may not." (People v. Veamatahau (2020) 9 Cal.5th 16, 26.)
Sanchez gave several examples of case-specific versus background information, including: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at 677.)
Citing to this example, our colleagues in Division Eight held that testimony about a gang's rivalry with another gang was properly admitted as non-case-specific, general background information. (People v. Meraz (2018) 30 Cal.App.5th 768, 781-782, review granted March 27, 2019, S253629[police officer "permitted to testify to non-case-specific general background information about [appellant's gang], its rivalry with [the gang of one of the victims], its primary activities, and its pattern of criminal activity, even if it was based on hearsay sources like gang members and gang officers"].) Similarly, in People v. Anthony (2019) 32 Cal.App.5th 1102, the court found it was not erroneous to admit testimony about "the general history of the violent rivalry between [the] NSO [gang to which appellant belonged] and the Berkeley gang [to which the victim's brother purportedly belonged], including information [the gang expert] obtained from other officers, investigators and purported gang members." (Id. at 1137.) The court held the gang expert "was not required to personally replicate all investigations dating back to the inception of the NSO-Berkeley gang rivalry in 2002 in order to relate general information about those two gangs and their rivalry. Under Sanchez, [the expert]'s description of the two gangs' activities and their rivalry was admissible even though it was to a large extent derived from conversations with others or the review of police reports." (Id. at 1138.)
The grant of review states: "Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Perez[,] S248730 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court." (People v. Meraz, S253629, Supreme Ct. Mins, Mar. 27, 2019.) The issue in Perez, S248730, was "Did defendant's failure to object at trial, before People v. Sanchez (2016) 63 Cal.4th 665 [204 Cal.Rptr.3d 102, 374 P.3d 320] was decided, forfeit his claim that a gang expert's testimony related case-specific hearsay in violation of his Sixth Amendment right of confrontation?" (People v. Perez, S248730, Supreme Ct. Mins., Jul. 18, 2018.)
The Anthony court also found testimony "that certain NSO members were killed in incidents that were a part of the NSO-Berkeley gang rivalry" and that there had been "a shooting incident involving an NSO member in the early morning hours of May 8, 2009, in Oakland" constituted case-specific hearsay. (People v. Anthony, supra, 32 Cal.App.5th at 1141.) But because the court found the admission of this testimony to be harmless, Anthony provides no details as to exactly what the challenged testimony was, making it difficult to evaluate its similarity. (Id. at 1140-1142.) We decline to read Anthony to hold that experts are categorically prohibited from explaining the origins of a gang's feud with another gang.
In People v. Blessett (2018) 22 Cal.App.5th 903, review granted August 8, 2018, S249250, a gang expert testified about several predicate offenses involving a certain gang's members, in order to establish they were a criminal street gang. One issue before the court was whether this testimony constituted case-specific hearsay. The court found it did not: "The predicate offenses used in this case do not fall within this definition [of case-specific hearsay]; they did not involve the particular events or participants involved in the case being tried. Rather, they are historical facts related to the gang's conduct and activities. These facts pertain to the gang as an organization and are not specific to the case being tried. . . . A predicate offense and the underlying events are essentially a chapter in the gang's biography. . . . Moreover, predicate offenses are specific examples of the gang's primary activities . . . . Consequently, the facts related to the predicate offenses here are more appropriately characterized as background information relevant and admissible to the past 'conduct' of the [appellant's gang] and the gang's 'history and general operations.'" (Id. at 944-945, fn. omitted.)
As in Meraz, the grant of review here states: "Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Perez, S2487730 (see Cal. Rules of Court. rule 8.512(d)(2)), or pending further order of the court." (People v. Blessett, S249250, Supreme Court Mins. Aug. 8, 2018.)
While the purpose of the testimony admitted in Blessett was to prove the appellant's gang was a criminal street gang, we find its reasoning, and that of Meraz and Anthony, applicable here: the testimony about the origins of the Avalons' feud with the Menlos was not case-specific hearsay because it did not involve the particular events or participants involved in the case being tried; instead it consisted of historical facts related to the gangs' conduct and activities.
Moreover, appellant stated in his videotaped interview that Randle (an Avalon member) "got killed because of the funeral." "Statements providing context for other admissible statements are not hearsay because they are not offered for their truth." (People v. Fayed (2020) 9 Cal.5th 147, 169; see also People v. Davis (2005) 36 Cal.4th 510, 536 ["an out-of-court statement is admissible if offered solely to give context to other admissible hearsay statements"].)
(b) The Officers' Testimony Was Not Testimonial Hearsay
In Sanchez, our Supreme Court "consider[ed] the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion." (Sanchez, supra, 63 Cal.4th at 670.) "In Crawford v. Washington . . . the United States Supreme Court held, with exceptions not relevant here, that the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses." (Ibid.) Sanchez held that admission of a hearsay statement "violates the right to confrontation if the statement is testimonial hearsay . . . ." (Id. at 680.)
The Court specifically noted its decision "does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Sanchez, supra, 63 Cal.4th at 685.) "[T]estimony relating such background information has never been subject to exclusion as hearsay, even though offered for its truth," and "[g]ang experts, like all others, can rely on background information accepted in their field of expertise under the traditional latitude given by the Evidence Code." (Ibid.) "[O]nly when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Ibid.)
Testimonial hearsay statements "are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at 689; see also People v. Edwards (2013) 57 Cal.4th 658, 705 ["'First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution'"].)
In People v. Meraz, the court concluded the gang expert's testimony did not constitute testimonial hearsay because "nothing in the record suggests [the testifying officer] obtained any of this information 'primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.' (Sanchez, supra, 63 Cal.4th at p. 689.) [The testifying officer] described the sources of his background information on [appellant's gang] and the rivalry with [the gang of one of the victims] in only the most general terms. He conveyed no specific statements by anyone with whom he spoke, and reached only general conclusions based on his education, training, and experience. As we explained in a case before Sanchez, '[d]ay in and day out such information would be useful to the police as part of their general community policing responsibilities quite separate from any use in some unspecified criminal prosecution.' (People v. Valadez (2013) 220 Cal.App.4th 16, 36 .) To conclude otherwise would eviscerate the role of gang experts in gang-related prosecutions, a consequence the court in Sanchez neither contemplated nor likely intended." (People v. Meraz, supra, 30 Cal.App.5th at 782.)
Similarly, nothing in the record suggests the gang experts obtained any of the information to which they testified "'primarily to memorialize facts relating to past criminal activity'" or with any "degree of formality or solemnity." (People v. Meraz, supra, 30 Cal.App.5th at 782; People v. Edwards, supra, 57 Cal.4th at 705.) Officer Sanchez testified that information about the funeral was "being passed around in roll calls, from senior gang training officers to look out for those feuds and those shootings that were going on." Officer Maillet testified that his information came from intelligence-gathering he conducted "to identify gang crimes, gang trends, who their allies are, who their enemies are and who they're feuding with." He further confirmed that the police gathered such information to "monitor what's going on in the different communities and . . . the different gangs in those communities." In fact, he specifically stated that the information given to him was given by gang members, affiliates, rival gang members, victims, and other witnesses, and was "not being testified to under oath."
5. Admission of the Challenged Testimony Was Harmless
"[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. Cal. (1967) 386 U.S. 18, 24.) Under state law, "a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
Even if the testimony regarding the funeral and the shootings had been erroneously admitted, we would find such error harmless beyond a reasonable doubt. Appellant did not object to the testimony that the Avalons and Menlos were feuding. Nor does he argue on appeal that admission of such testimony was error -- he objected and objects only to the testimony about the origins of the feud. One of the People's gang experts agreed that "any shooting . . . by one gang member in another rival gang's territory . . . benefits the shooter's gang." This testimony, combined with the evidence of appellant's actions in driving and stopping around the block where Horne was standing, and the evidence that he was an active member of the Avalons, convinces us that even if admission of the specifics of the funeral was erroneous -- a finding we do not make -- it was harmless beyond a reasonable doubt, and there was no reasonable probability that a juror would have changed his or her vote without such testimony.
C. The Court Did Not Err in Refusing to Defer the Testimony Regarding the Gun-Cleaning Kit
Appellant contends the court abused its discretion by refusing his counsel's request that the evidence of the cleaning kit "not be presented to the jury because I haven't had time to prepare for that," arguing that "efficiency cannot trump the accused's right to a fair trial and the effective representation of counsel." He further claims the court's admission of evidence about the cleaning kit was improper because its ownership was not established, and it was located a month after the killing. He argues the cleaning kit lacked any probative value and its admission was prejudicial.
Although appellant argues his trial counsel "sought to defer presentation of this particular evidence so that she could prepare to meet it," in fact, counsel asked that evidence about the cleaning kit "not be presented to the jury . . . ." Assuming, however, that the court understood the objection merely as a request for deferment, we find no abuse of discretion in its denial.
"[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked." (People v. Beames (2007) 40 Cal.4th 907, 920.) "[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (Ibid.)
The record establishes that the prosecutor informed the court and opposing counsel he intended to call Officer Munoz to testify about the cleaning kit before the jury was brought in for the afternoon session. Appellant's counsel raised no objection. The People then called the coroner, who testified about the wounds Horne sustained. Thereafter, the People called Officer Munoz. Again, appellant's counsel raised no objection. It was only after Officer Munoz testified he was on patrol near South Park in November 2015 that appellant's counsel asked for a sidebar and suggested she had not had "time to prepare" for evidence regarding the cleaning kit. On this record, we discern no error in the court's denial of counsel's request to exclude (or defer) such evidence. Counsel knew, prior to the start of the afternoon session, that Officer Munoz would be testifying about the cleaning kit and admitted having been given a picture of the items found in appellant's truck (including the cleaning kit) before trial began.
Appellant's citations to People v. Fontana (1982) 139 Cal.App.3d 326, Hughes v. Superior Court (1980) 106 Cal.App.3d 1, and United States v. Barrett (9th Cir.1983) 703 F.2d 1076 are unhelpful. In Fontana and Hughes, defense counsel stated they were unprepared for the entire trial, and in Barrett, counsel told the court more than a week prior to trial that he needed more time to find an expert to counter the prosecution's expert. (People v. Fontana, supra, 139 Cal.App.3d at 330; Hughes v. Superior Court, supra, 106 Cal.App.3d at 3; United States v. Barrett, supra, 703 F.2d at 1080.) The facts of the instant case are manifestly different.
Moreover, "[a]n important factor for a trial court to consider [when a continuance is requested] is whether a continuance would be useful." (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Appellant claims that the cleaning kit lacked any probative value and, had his counsel been permitted to prepare, she would have moved to exclude evidence of it. But all the testimony appellant would have cited to move to exclude evidence about the cleaning kit was elicited by appellant's counsel on cross-examination. Yet appellant made no motion to strike after eliciting such testimony. We find no abuse of discretion in the trial court's refusal to defer Officer Munoz's testimony and no error in its admission.
D. Appellant Did Not Knowingly Admit to a Prior Strike
In the information, the People alleged appellant was convicted of violating Section 245(a)(1) on September 30, 1999. The current version of Section 245(a)(1) provides that "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison . . . ." Because appellant was convicted of murder, had he also previously been convicted of assault with a deadly weapon, he would have been subject to a doubling of his sentence under section 1170.12, subdivision (c)(1), and a five-year sentence enhancement under section 667, subdivision (a)(1).
Section 1170.12, subdivision (c)(1) ["If a defendant has one prior serious or violent felony conviction as defined in subdivision (b) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction"]; section 667, subd. (a)(1) ["Any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately"]. There is no dispute that the qualifying felony at issue here is assault with a deadly weapon in violation of Section 245(a)(1).
However, in 1999, the year in which the People alleged appellant suffered a conviction, Section 245(a)(1) provided that "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison . . . ." (Former § 245, subd. (a)(1), italics added.) The information does not specifically allege that appellant was convicted of "assault with a deadly weapon" and sections 1170.12 and 667 do not permit sentence enhancements for "assault by any means of force likely to produce great bodily injury."
At the "priors trial," the court informed appellant that he had previously been convicted of "assault with a deadly weapon," and then asked appellant if he wished to admit that he suffered a conviction for "a violation of 245(a)(1), assault with a deadly weapon." In response, appellant asked: "Can I clarify what the weapon was? Is there clarification of what the weapon was?" The court informed him the type of weapon was irrelevant and then asked, "did you suffer a conviction?" Appellant responded, "Yes." The court confirmed with appellant's counsel that she "had a chance to investigate this" and asked if she agreed that appellant "did so suffer a conviction," to which she responded, "yes, your honor." The court then accepted the admission.
Both parties agree the court "did not advise appellant of his privilege against self-incrimination, his right to confront witnesses, or the penal consequences of his admission." In In re Yurko (1974) 10 Cal.3d 857, our Supreme Court concluded that "before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission [are required]. The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea." (Id. at 863.) It further held that "[t]he court is thus required to determine whether, after an accused is fully advised of both the constitutional rights subject to waiver (see fn. 5, ante) and the full penal effect of a finding of the truth of an allegation of prior convictions, his admission of the truth of such allegation was knowingly and voluntarily made. The record must clearly reflect both the admonitions given the accused and the fact of the accused's waivers, if any." (Id. at 865.) Footnote 5 provided that "[t]he court held that a plea of guilty was tantamount to a waiver of three important federal rights: 'First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment . . . . Second, is the right to trial by jury. . . Third, is the right to confront one's accusers. . . .'" (Id. at 863, fn. 5, citing Boykin v. Alabama (1969) 395 U.S. 238, 243-244.)
Eighteen years later, our Supreme Court held "Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
Appellant argues his admission that he suffered a conviction for assault with a deadly weapon was neither knowing nor intelligent, because the court told him he had been charged with assault with a deadly weapon, when he may have been charged only with assault by any means of force likely to produce great bodily harm. The People do not dispute that in 1999, Section 245(a)(1) applied to both types of assault, and that only a conviction of assault with a deadly weapon warranted sentence enhancements. Nor do they dispute that the charging information itself made no mention of "assault with a deadly weapon," referring solely to the statute. They nevertheless argue that because the record was silent as to what evidence the People intended to present to prove the prior conviction allegation, we must assume the court correctly stated that appellant was charged with and convicted of assault with a deadly weapon. We disagree.
Appellant's inquiry -- "Can I clarify what the weapon was? Is there clarification of what the weapon was?" -- showed confusion regarding a "weapon" in connection with the prior conviction. While the court's response -- that the precise nature of the weapon used in the crime of assault with a deadly weapon was irrelevant -- was technically accurate, it failed to address the apparent source of appellant's confusion, viz., whether he had been convicted of using a weapon at all. Given the absence of required advisements, appellant's manifest confusion, and the lack of clarity regarding whether the prior conviction was for assault with a deadly weapon or assault by means of force likely to produce great bodily injury, we are not persuaded that appellant knowingly admitted to a prior conviction for assault with a deadly weapon.
Accordingly, we must remand to provide the People an opportunity to prove appellant was convicted of assault with a deadly weapon. Alternatively, following the appropriate advisements and clarification, appellant may elect to admit the prior conviction. If the prior conviction was not for assault with a deadly weapon, appellant may not be subject to the enhancements that increased his sentence by 20 years.
E. The Trial Court Must Explicitly Exercise Its Discretion Whether to Strike the Section 667(a) Enhancement
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§, 2.) The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).)" (People v. Jones, supra, 32 Cal.App.5th at 272.) The court imposed the five-year enhancement two days later, on January 3, 2019. "'Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.'" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Appellant argues that because "the record of the sentencing hearing makes no mention of the new legislation or the court's newly created discretion to strike the five year enhancement it imposed for the prior serious felony conviction," we must remand to permit the court to exercise its discretion. Typically, "[i]n the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.'" (People v. Thomas (2011) 52 Cal.4th 336, 361, quoting People v. Coddington (2000) 23 Cal.4th 529, 644.) However, given that the law had been in effect for only two days prior to the sentencing hearing (one of which, January 1, was a court holiday), and the record is silent as to whether the court was aware of its discretion to strike the enhancement, out of an abundance of caution, we remand and direct the trial court to explicitly exercise its discretion to strike the enhancement provided for by section 667, subdivision (a)(1), should the People prove (or appellant admit) that he suffered a conviction for assault with a deadly weapon in violation of Section 245(a)(1).
Citing People v. Scott (1994) 9 Cal.4th 331, the People argue appellant forfeited this argument by failing to object to the trial court's discretionary sentencing choice. In Scott, our Supreme Court held that "the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. . . . Our reasoning is practical and straightforward. Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Id. at 353.) However, given that the sentencing hearing was held two days after Senate Bill No. 1393 became effective and the record is silent as to whether the court was aware of its newly awarded discretion, we choose to "exercise our discretion to resolve the claim in the interests of fairness and judicial economy, since the matter is already being remanded for other sentencing matters, and to forestall unnecessary ineffective assistance of counsel claims." (People v. Leon (2016) 243 Cal.App.4th 1003, 1023.)
DISPOSITION
The matter is remanded to the trial court for proceedings consistent with this opinion. On remand, the People shall have the opportunity to prove the allegations under sections 1170.12 and 667, subdivision (a)(1), unless appellant admits to having been convicted of assault with a deadly weapon under Section 245(a)(1). In addition, if necessary, the court shall exercise its discretion whether to strike the five-year enhancement under section 667, subdivision (a)(1). In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.